Strengthening Constitutional Self-Government

No Left Turns

Gonzales as originalist proponent of judicial restraint

Christianity Today’s weblog makes the case. You be the judge.

I should note that I find the defense heartening, though CT’s Ted Olsen notes that a more important reason not to nominate Gonzales may be the requirement, noted by Edward Whalen, that Gonzales "would have to recuse himself from virtually every case of importance to the administration." I also can’t imagine a hearing on Gonzales that didn’t prominently feature pontifications about Abu Ghraib and Guantanamo, surely not the most illuminating and productive use of Senatorial time.

Discussions - 3 Comments

One big problem I have with Gonzales, in addition to the questions surrounding his judicial philosophy, is that I just don’t think he’s in the same intellectual class as many of the other conservative contenders for the Court. Take a look at the now (in)famous concurring opinion in the parental notification case. http://caselaw.lp.findlaw.com/data2/texasstatecases/sc/000224c.htm

Put aside the legal case, and just look at the writing. It’s amateurish, and more importantly, in a short three-page opinion he makes two glaring grammar mistakes, in paragraphs two and five. Now compare this to an opinion by Luttig, Roberts, or Jones, for example, and it becomes clear that there are simply much better candidates for this job, even if Gonzales is more conservative and textualist than most of us think.

For me it was the "go ahead and OK it" attitude he expressed to O’Connor on Grutter v. Michigan Law School. No conservative would have been OK with state-sponsored racism. If Bush nominates him, he’ll have slapped the faces of his most loyal constituency. For me, that will confirm to me some of the more critical comments about his character.


The Michigan case is powerful evidence of Gonzales’ unacceptability, more significant than the Texas abortion case, where a decision about one individual was at issue.

Evidence of Gonzales’ intellectual mediocrity is another serious problem.

Unfortunately, neither this nor Gonzales’ role in the quota case is likely to turn off the president.

We are left with three arguments: One, you will infuriate some of your base, dishearten others, and thereby damage your party. Two, Gonzales will either recuse himself from many cases you (and we) care about, or he’ll look bad not recusing himself. Three, it looks like cronyism.

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