Strengthening Constitutional Self-Government

No Left Turns

Ashcroft Out; Gonzales In

The White House reports that Judge Alberto Gonzales has been nominated by President Bush to be the Attorney General of the United States (what Bush called the fifth appointment of Gonzales to a position under his authority).

On March 31, 2003, Judge Alberto R. Gonzales delivered the Inaugural Powell Lecture at Washington and Lee University Law School. He was the chief counsel to President George W. Bush and considered by legal commentators to be a likely nominee for the next vacancy on the Supreme Court. For what it’s worth, I include below an aide-memoire that I wrote soon after I heard his remarks. (Please pardon the lengthy blog)

Gonzales’s 37-minute speech gave a glowing assessment of Bush. Some soundbites: "It is hard to be around George Bush and not learn from him." "It is hard to be around the president and not like him." In general, Bush is thoughtful, deliberate, charming, a man of faith (as Gonzales gave every indication of himself, as well), and has a "strong sense of his destiny."

Two "core principles" of his counsel to the president are "fidelity to the rule of law" and something like devotion to the constitutional prerogatives of the office in the face of daily challenges. Gonzales addressed the role of commander-in-chief and judicial appointments: "The world has changed but the words of the Constitution have not." Which means he counsels the president to submit to the Constitution but believes Bush has a correct understanding of his singular responsibility among the federal branches to protect the American people, especially in the face of enemies who do not cherish life, are not constrained by civil authorities, do not love liberty, and do not respect law. "We are at war," he reiterated without apology.

Gonzales gave examples of "anticipatory self-defense" in American history and U.N. backing for U.S. actions against Iraq since 1991. He added that lawyers "review" military targets for possible infractions of international or national law (e.g., effect on civilian populations or non-military institutions like hospitals, schools, or mosques), but certainly do not "approve" of targets.

He believed that "perhaps a president’s most lasting legacy" could be his judicial appointments. He added that Bush’s "compassionate conservative" approach to appointments was as follows: (1) personal character, integrity, and professional excellence; (2) follows precedent and the law, i.e., "ideologically neutral" in approach to adjudication with no agenda brought with them to the Court; and (3) no ideological litmus test.

Gonzales repeated the federal brief arguments on the Grutter and Gratz affirmative action cases: namely, racial diversity in higher education is important, though no commitment on this as a "compelling state interest" and race-neutral means are best so as to avoid the divisiveness that follows from race-centered policies that treat people differently according to race. The latter should be used "only as a last resort, if ever." He spoke of "the important goal of diversity" in light of King’s "I Have a Dream" quotation about color versus content.

He closed with a quick ode to balancing work and family: "Learn this now if you want to be happy."

I had to duck out early for a previous appointment, but was able to ask the second question: "Washington and Lee University joined an amicus brief by Carnegie Mellon University, which supports racial diversity as a rationale for affirmative action but not for remedial purposes. Curiously, it argued that while race is not a proxy for how a person thinks, race does shape how one thinks. Do you agree with this, and if not, how is racial diversity a compelling state interest in decisions regarding hiring and admissions in higher education?"

He dodged the question by simply restating the "president’s position" in the federal briefs filed in February, which was that Bush did not say diversity was a "compelling state interest" but an important goal of education because it represented "equal opportunity"--something the president is very sensitive about and cares very much about. Gonzales said, "This may not answer your question," to which I replied, "No, it doesn’t, but that’s OK," and then I quickly added, "I just want to know why racial diversity is important." He then repeated his statement about equal opportunity and how education, in the president’s mind, is the key to success for all Americans. (He had, pleasantly, given every indication during his formal remarks that he would not answer direct questions dealing with pending or potential cases.) Needless to say, my follow-up question turned many heads when I asked it, as if to imply, "How could anyone NOT know why racial diversity is important?!" Other questions about civil rights protections for prisoners of the war on terrorism and related matters were asked, then I left before the session closed.

Gonzales came across as a devoted counselor to the president, an amiable fellow who has his personal and vocational priorities straight, and who would not part from the president’s line on any given subject. He clearly admires the president, gets along with Bush, and possesses not so coincidentally the qualities outlined in his speech for a potential nominee to the federal bench (Supreme or otherwise). As I noted earlier, there was no way he was going to touch any of the hot-button topics dealing with any future court nominees of the president, though he did mention in passing the Estrada filibuster that will recommence tomorrow [April 2003].

There’s alot the president obviously likes in Gonzales, going back to their Texas service in the state house. If he is weak on abortion and affirmative action, as has been reported, his appointment to replace John Ashcroft as attorney general could be the best conservatives could expect.

Discussions - 5 Comments


No offense, but except for the first mention of him in the above post, you misspelled Judge Gonzales’s last name throughout. It’s "Gonzales", not "Gonzalez". As a Texas attorney, it also took me a while to get the spelling of Judge Gonazles’s name right. It also took me forever to get Bob "Kerrey" and John "Kerry" straight. I know that Judge Gonazles is sensitive about this, and I trust you also want to be as accurate as possible.

Duly noted; noone likes their name misspelled. It’s now fixed. (Had a roommate in college with the more common spelling.) Thanks.

Take heart, conservatives. The appt.
of this fine man (and soft thinker) as atty. gen. means he will not be the president’s first appointment to the Court. He won’t be Chief Justice.

Lucas, I just want to say thanks for the above posting because I do not know much about him, but I was looking for a substantive, insightful overview of his political/legal philosophy and principles that will guide his jurisprudence.

Ah, but who will be appointed Chief Justice? There are plenty of softies like Gonzales out there. Just because one wasn’t appointed doesn’t mean another won’t be. And let’s not forget that even a strongly conservative Chief will be a "hold," not a gain. The liberals, of course, will make it sound like an attempt to impose fascism, so Bush will be expending a lot of political capital just for a "hold."

A moderate conservative would almost certainly be worse than Rehnquist. We Straussians can say what we will about the Chief Justice, but in cold political fact, he will be hard to replace. One thing you can say for Rehnquist -- he’s no sissy and doesn’t suck up to the liberals. Every serious conservative owes him an enormous debt of gratitude, not to mention a prayer.

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