The Conservative Case Against Al Gonzales

Presidential aides are floating White House Counsel Al Gonzales as a potential Supreme Court nominee.

But nominating Gonzales could pit President Bush against some of his own supporters in a bitter confirmation battle.

Citing "administration officials," the Washington Post reports that despite "frank opposition among conservative activists" Gonzales "is still very much in the running and might well be nominated-if not first, then eventually."

Many Senate Democrats will oppose any Bush pick. But why would conservatives oppose Gonzales? At first glance, he seems like the perfect nominee.

Gonzales is the President’s longtime friend. Bush could make him the first Latino named to the court. Like Clarence Thomas, his life story (son of migrant laborers goes to Harvard Law) evokes the colorblind vision of America conservatives want to promote.

"Conservatives," says the Post, "are concerned about Gonzales’s views on affirmative action and abortion."

In truth, the case against Gonzales revolves around one question: Is he a judicial activist?

The answer-Yes!-was delivered by none other than Justice Priscilla Owen, whom Bush has nominated twice for an appeals court seat, and with whom Gonzales served on the Texas Supreme Court.

Owen and Gonzales took opposite stands on Re Jane Doe, which involved Texas’s parental notification law.

Jane Doe, 17, came from the sort of household most likely to support Bush. Her parents were church-going pro-lifers, who had just bought her a car and intended to pay her expenses when she attended college.

She did not tell them she planned to abort their grandchild.

The law said a judge could exempt a teenager from telling her parents if: 1) she was "mature and sufficiently well informed to make the decision," 2) notification would not be in her "best interests," or 3) "notification might lead to physical, sexual or emotional abuse."

Doe sought the "mature and sufficiently well informed" exemption because, as Owen later noted, she "feared that her parents would no longer provide financial assistance to her if they knew she had an abortion."

A judge said Doe had to tell her parents. An appeals court agreed. The Texas Supreme Court said the judge and appeals courts had not erred, but remanded the case for a new trial anyway.

In doing so, the majority wrote a "rule" defining "sufficiently well informed" so that Doe need not be informed at all about the new life within her. She need only consult a health care provider about the risks of abortion (Doe consulted an abortion clinic), understand the alternatives (Doe consulted an abortion clinic) and be aware of abortion’s emotional and psychological "aspects" (Doe consulted three friends, her home-economics teacher and an abortion clinic).

Gonzales co-wrote the rule. Owen dissented. Justice David Souter in Planned Parenthood v. Casey, she noted, conceded the state had a legitimate interest in compelling women to comprehend fetal life because, as Casey put it, "most women considering an abortion would deem the impact on the fetus relevant, if not dispositive to the decision."

Doe had a second trial. The judge did not issue a specific finding, but presumably failed her on the "mature" test. The appeals court upheld his ruling.

Less than 48 hours after receiving the trial record, the Texas Supreme Court, in a 5-to-4 decision, sent Doe to get an abortion in 15th week of pregnancy without telling her parents. Gonzales joined the decision. Owen dissented.

Ultimately, the issue was the legitimate power of the state Supreme Court.

"The question in this case is not whether this court would have ruled differently when confronted with all the evidence that the trial court heard," wrote Owen. "The question is whether legally sufficient evidence supports the trial court’s judgment. The answer to this later question is yes. Longstanding principles of appellate review and our Texas Constitution do not permit this court to substitute its judgment for that of the trial court and or to ignore the evidence, as it has done."

Gonzales and four colleagues converted the Supreme Court into a trial court, retried a case in which they had not seen the witnesses, and sent a teenager to a secret abortion.

Don’t take my word for it. Take Priscilla Owen’s. "The court," she said, "has disregarded the law and has trampled the process on which the legitimacy of our law depends."