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The Gonzales GameIs he really the best Supreme Court pick liberals can hope for?

By Emily Bazelon
Posted Tuesday, July 12, 2005, at 5:37 PM ET
Can't we do better? Click image to expand.

When you stop to think about it, the general consensus that Attorney General Alberto Gonzales is the Supreme Court candidate whom liberals should root for is pretty head-spinning. In January, Gonzales went before the Senate as President Bush's nominee for attorney general—an important job, but at most a four-year one. Sen. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee, argued then that on Gonzales' watch as White House counsel, "the administration has taken one untenable legal position after another regarding the rule of law as we fight terrorism." Now that Gonzales may be up for a lifetime spot on the nation's highest court, by contrast, Senate Minority Leader Harry Reid is calling him "qualified" while liberal interest groups keep quiet for fear that overt support for Gonzales will torpedo him.

What's changed, of course, is the company Gonzales is in. He looked bad to liberals as the president's yes man; he looks better now that he's the lone possible moderate nominee in a pack of far-right judges. Still, before liberals get too relieved about a Gonzales nomination, they might want to review one more time his record as White House Counsel and as Bush's lawyer when he was governor of Texas.

The underlying question about Gonzales, in the words of an open letter to the Bush administration and Congress signed by more than 200 law professors, is whether he and other Bush administration lawyers "have not met their high obligation to defend the Constitution." The doubts begin with the January 2002 memo Gonzales wrote concluding that the Geneva Conventions should not apply to the current war on terrorism. Responding to then-Secretary of State Colin Powell's concerns about the standards for detention of terrorist suspects captured abroad, Gonzales assured Bush that he had the authority, as chief executive, to strip the detainees of Geneva's protections. The war on terror is a "new kind of war," Gonzales wrote. "In my judgment this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." The provisions that Gonzales went on to enumerate weren't that important—advances of monthly pay and commissary privileges for the detainees. But his memo laid the groundwork for the administration's claim that it may hold foreign terrorist suspects without recognizing that they have any right to a lawyer or a hearing in federal court.

With the Geneva Conventions out of the way (along with the federal war crimes statute), the administration also considered itself free to conduct coercive interrogations. The exceptions to the Geneva Conventions were supposed to be just that—exceptions that would apply only to suspects from al-Qaida and other terrorist groups held at Guantanamo Bay and in Afghanistan. Instead, the harsh interrogation tactics migrated to Iraq, even though the administration never disputed that Iraqi prisoners of war were entitled to the standard protections accorded by international law. In short, Gonzales' January 2002 memo was key in setting the legal conditions for the abuses at Abu Ghraib and elsewhere, with all the worldwide condemnation that followed.

The Bush administration made Gonzales' argument to the Supreme Court for sweeping presidential power in two 2004 cases—and lost both times. In Rasul v. Bush, the court ruled 6 to 3 that the Guantanamo detainees may argue in federal court that they are being held unlawfully. In Hamdi v. Rumsfeld, eight justices (the exception was Clarence Thomas) said that Yaser Esam Hamdi, an American citizen who was captured in Afghanistan and held for two years in Guantanamo, had the right to appear before a judge and challenge the government's evidence. ''These essential constitutional promises may not be eroded,'' Justice Sandra Day O'Connor wrote for four of the justices. ''A state of war is not a blank check for the president." Forceful as that rhetoric sounds, the 2004 rulings did not settle the scope of the claims that the detainees can present in federal court, or how judges are to weigh their arguments for release against the government's national security claims. In the next year, the Supreme Court will probably decide whether and how to weigh in again—which would put a Justice Gonzales in the position of either making a call about the constitutionality of his own policy, or stepping aside to let his colleagues decide.

As lawyer for the governor in the Texas Statehouse from 1994 to 1997, Gonzales was responsible for advising Bush about whether he should delay the death sentences of capital murderers or ask the state Board of Pardons and Paroles to commute them. On the morning of each execution day, Gonzales gave his boss a memo that was supposed to lay out the significant facts and legal issues in the inmate's case. Bush failed to approve only one of 152 executions during his tenure. A 2003 Atlantic Monthly article by Alan Berlow about the clemency process showed that many of Bush's approvals were based on "only the most cursory briefings." As my colleague Phillip Carter has written, Gonzales' work on this life-or-death task "would have barely earned a passing grade in law school."

The prospect of Gonzales' nomination to the court drew an editorial Friday from the Los Angeles Times calling him a "disastrous choice." The crowds in the Middle East and Europe that have protested the treatment of detainees at Abu Ghraib and Guantanamo would probably agree. Many liberals at home, though, are swallowing hard and praying that once Gonzales no longer works for the president, he'll redeem himself. They'll probably have to take that on faith. Gonzales was "irresponsible, forgetful, and unaccountable," when he testified before the Senate during his January confirmation hearing, my colleague Dahlia Lithwick wrote then. If he gets the nod from Bush, Gonzales will probably just have to duck one more time. Then he'll be the one asking the questions, from the bench.

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Emily Bazelon is a Slate senior editor.
Photograph of Alberto Gonzalez by Andrew Councill/AFP/Getty Images.
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Remarks from the Fray:

That conservatives are speaking out against Gonzalez, while liberals seem to be hoping for him, is an example of the distorting effect Roe vs Wade has on our politics. The only reason for this strange state of affairs is that he has criticized some of the more extreme antiabortion stances of some of his former colleagues on the Texas court.

But if we are to think clearly, abortion should not be anywhere near the top of list of important judicial issues. With the war on terror and the attendant judicial issues, a tort system that does more to enrich lawyers than compensate victims or deter wrong doing, issues, continuing issues with the election system and other important issues, it is a sad shame that this nomination will primarily be about abortion.

How did we get in this mess? Because the right to an abortion was established by a court decision that is, correctly, seen by those who oppose it as having been imposed without any constitutional basis stronger than the policy preferences of the justices. Even someone like me, who is prochoice, and is happy to believe that the right to privacy (or its penumbra) can encompass the Lawrence decision, has a hard time swallowing Roe. After all, medically provided abortion is not a private occurrence; it is a transaction in a highly regulated medical business. The notion that the Constitution treats abortion differently from all other medical procedures cannot stand serious scrutiny (and I don't mean that in the legal jargon sense.) A thinking prochoice person should be able to readily understand why those who oppose abortion feel their right to participate in the democratic decision process has been infringed.

I find it harder to understand why the left is so adamant about defending Roe. In the first place, polls consistently show that a large majority of Americans favor legal abortion; this is an issue the left can win on democratically. And a right established by a democratically legitimate process, whether by statute or constitutional amendment, will have a much stronger foundation than one enacted by judicial fiat. Furthermore, if abortion is going to be a subject of serious legislative debate, we ought to have it now, while those of us who remember coat-hanger abortions are still around. It is by far the best argument for legal abortion.

--mike1729

(To reply, click here)


Scalia, of all people, delivered the smackdown against Gonzalez's view of executive power and prisoners' rights, in Hamdi.

I don't think Bush can possibly churn the court enough to make Gonzalez's view on those issues dominant. On the other hand, the court is closely divided on social issues, and there Gonzalez is less objectionable.

So yes, I think he's the best we can do.

--Auros-4

(To reply, click here)

(7/12)

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