The Conservative Nightmare Scenario

What if Miers withdrew and Bush replaced her with Gonzales?

Conservatives who believe the worst error President Bush could have made in his second term was to name Harriet Miers to the Supreme Court, may be mistaken.  Naming Miers was a bad choice by Bush, but there is potentially a worse choice he could have–or still could–make.

Miers–whose views are largely unknown and untested–could withdraw, and Bush could replace her with Alberto Gonzales–whose views on some fundamental issues are known and wrong.  Or Bush could name Gonzales to the next vacancy.

A Gonzales confirmation could be difficult, if not impossible, to stop.  He was confirmed as attorney general by 60-36 vote in February, with every Republican senator voting for him.

It is obvious that President Bush has been at least tempted to name Gonzales to the Court.  He has publicly hinted as much himself, and the possibility of a Gonzales nomination has been floated in the press since the beginning of the administration.

Like Miers, Gonzales is a personal friend of the President whose involvement in Republican politics has been largely tied to his relationship with George W. Bush.  But unlike Miers, it cannot be said that Gonzales is lacking in qualifications for the U.S. Supreme Court.  He is a man who made his way up from a working class childhood to graduate from Harvard Law School.  He served two years on the Texas Supreme Court.   After four years as White House Counsel, he became attorney general of the United States.

Like Miers, Gonzales would provide diversity on the Court.  He would be the first justice ever to claim Latin American ancestry.  

The Republican Party rightfully has been trying to reach out to Latino voters and naming a Latino to the Supreme Court would not hurt that cause. 

But while conservatives don’t know, for example, where Miers stands on Roe v. Wade, it is a good bet that Gonzales would vote to uphold Roe if he were confirmed to the Court.  In 2000, on the Texas Supreme Court, Gonzales sided against that court’s conservative justices–including Miers’ friend Nathan Hecht and Priscilla Owen, who now sits on the U.S. Court of Appeals for the 5th Circuit–in weakening Texas’s parental notification law.  He then voted–against Hecht, Owen and the evidence–to send a teenage girl to have an abortion in her 15th week of pregnancy without first notifying her parents.   In dissenting from the opinion Gonzales had joined in this case, Owen argued that the court had not only made the wrong ruling, but that in order to do it had swept away the Texas Court’s long established standards of appellate review.  The majority that included Gonzales, wrote Owen, “has obliterated, with the stroke of the pen, more than 50 years of precedent regarding appellate review of a trial court’s findings. The court’s actions raise disturbing questions about its commitment to the rule of law and to the process that is fundamental to the public’s trust in the judiciary."

In 2003, when the Supreme Court considered whether it was constitutional for the University of Michigan to use race as a factor in admissions, Gonzales reportedly worked to make sure the White House did not take an unambiguous position against the use of race.  “Justice Department lawyers, led by Solicitor General Theodore B. Olson, lobbied the president hard for a brief that would categorically declare that not even diversity can justify the use of race,” reported the Washington Post.  “White House political adviser Karl Rove and White House Counsel Alberto Gonzales, sensitive to the need to expand the Republican base to include minorities, pushed in the other direction, the officials said.”

Before Chief Justice Rehnquist died, the Supreme Court had a 6-3 liberal majority.  To move the Court to a conservative majority, Bush would need to name 3 conservative justices (as long as neither Justice Thomas nor Justice Scalia retired).  How Roberts will vote on key issues is still unknown.  In naming Miers, Bush gambled his chances of redirecting the court on an untested aide with no record on constitutional issues.  If he were to nominate Gonzales–either as a replacement for a withdrawn Miers, or to fill a future vacancy–he would be putting the future of the Court (and, for what it’s worth, his own legacy) in the hands of an aide with a bad record.