The pre-nomination battle over who President Bush should name to the Supreme Court contains enough irony and internal political warfare to fill a Tolstoy novel.
Initially, the story leading up to Bush’s first nomination to that court was expected to be an all-out war by liberal Democrats who know that the next Republican appointment is going to push the nine-judge panel in a decidedly conservative direction. Indeed, New York Sen. Chuck Schumer was overheard on an Amtrak Metroliner last week saying that he and his liberal allies were preparing "to go to war" to block whomever Bush chose.
Surprisingly, while Schumer and an army of angry activists were beating their war drums, other Democratic liberals were urging their party to hold their fire until they know who the nominee will be. More surprisingly, the Senate’s No. 1 Democrat seemed to be all but endorsing Attorney General Alberto R. Gonzales for the open seat.
Vermont Sen. Patrick Leahy, a leader of the Senate Democrats’ liberal bloc, who has been fighting Bush’s judicial nominees for the past 4-1/2 years, was all of a sudden urging his fellow liberals to cool it for now and tone down their rhetoric.
And Senate Democratic Leader Harry Reid said he thinks Gonzales "is qualified" to sit on the court. "He’s attorney general of the United States and a former Texas judge." Reid, of course, voted against Gonzales to run the Justice Department, but apparently he now thinks the Supreme Court is different matter — especially after millions of Hispanic voters supported Bush over Democrat John Kerry last year.
But there was even more division over on the Republican side, where the GOP’s powerful social conservative armies were up in arms over the thought of Bush putting Gonzales — his longtime friend, political ally and confidante — on the highest court in the land.
Gonzales is essentially a very conservative guy. He and Bush are joined at the hip on their intense opposition to judges who like to legislate from the bench. He is as tough on national security issues as it is possible to be, and proved that in his post-9/11 memorandums on how to deal with the terrorist threat.
On social issues, especially right-to-life issues, no president has been tougher or more effective in advancing the pro-life agenda, from the partial-birth abortion ban to his opposition to cloned stem-cell research. Alberto Gonzales personally opposes abortion.
But social conservatives fear that Gonzales is a little soft on right-to-life issues, though they can’t point to any written judicial decisions to suggest that he would overturn Roe v. Wade, a ruling that his predecessor, John Ashcroft — a hero in the social conservative movement — said was "settled law."
However, they do point to a 2000 abortion case opinion that he wrote when he was on the Texas high court, a decision that overturned a lower court ruling in which a teenage girl sought a waiver from the state’s parental-notification law.
Ironically, Gonzales based his opinion in the case on his belief that he could not rewrite the law to suit his own views. In his opinion, he said "to construe the Parental Notification Act so narrowly as to eliminate bypasses, or create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism."
"I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so," he said.
Most bothersome for social conservatives was Gonzales’ answer to a question posed at a conservative forum last year where he was asked if existing legal precedent would prevail in reconsidering the 1973 landmark case that established abortion rights. He said "yes."
Right now, Gonzales is on Bush’s short list, no doubt about it. If he is chosen, he would be the first Hispanic jurist to the court, a move that could help the Republicans make even deeper inroads among Hispanic voters. Bush won a little more than 40 percent of their vote last year. Karl Rove thinks the GOP can push that number even higher by reaching out to this huge and growing voting bloc, which is overwhelmingly pro-life, by the way.
But has the intense opposition from social conservatives killed any and all chances that Bush will still nominate this once dirt-poor son of Mexican immigrants? Ironically, their opposition may have strengthened Gonzales’ position all the more. Bush sent that signal last week: "All of a sudden this fellow, who is a good person, is under fire. I don’t like it at all."
His robust defense of Gonzales has put many top social conservatives in a very tough position where some may sit this one out. "I can’t support him because of my constituency, and I can’t oppose him because I can’t hurt this presidency," social conservative leader Paul Weyrich said last week.