Question of Recusals Is Raised Against Gonzales

By Charles Lane
Washington Post Staff Writer
Thursday, July 14, 2005

White House officials weighing the nomination of Attorney General Alberto R. Gonzales to the Supreme Court are considering whether a federal ethics law would require him to sit out cases of critical importance to the Bush administration once he was on the court, according to Republican sources who have discussed the issue with administration officials.

The intensified review of Gonzales's record is partly a reaction to pressure from activist conservatives, who in recent days have switched from arguing that Gonzales is ideologically unreliable to asserting that he would have to disqualify himself whenever issues he worked on in the Bush administration came before the court.

Anytime a justice recuses, there is the possibility of a 4 to 4 tie, automatically affirming the lower court's judgment.

Much of the White House review focuses on anti-terrorism policy, of which Gonzales was an architect while serving as White House counsel. But social issues Gonzales has dealt with as attorney general, such as assisted suicide and abortion rights, are also at stake.

"Of the arguments conservatives have made against him, this is the only one the White House is taking seriously," one of the Republican sources said. The source, who requested anonymity because officials asked him to avoid public statements, said that White House officials have begun going through the issues Gonzales has worked on in government, asking which ones that might come before the court would pose a conflict for him under applicable law.

"There are some cases where they would have to be a recusal," a second Republican source said. "The question is, how big a trade-off would it be?"

The White House declined to comment.

Previously, White House Deputy Chief of Staff Karl Rove played down the concerns, telling Washington Post reporters and editors in a recent interview only that "there might be cases, narrow issues," on which Gonzales would face recusal.

Admirers of Gonzales dismiss the recusal issue as a smokescreen for ideological objections from the right. "I don't think people would be worried about Gonzales's conflicts of interest issues if he had views they agreed with on abortion," said John C. Yoo, a former Bush administration official who worked closely with Gonzales.

But the new line of attack has gained traction because it permits conservatives to reframe their case against Gonzales in terms of his potential inability to advance the president's conservative agenda -- not his supposed differences with that agenda, Republican sources said.

Jan LaRue, chief counsel of Concerned Women for America, a conservative organization, distributed a memo to the group's members yesterday listing six social issues on which Gonzales might have to recuse.

"We don't think it's likely the president will nominate him," LaRue wrote. "It has nothing to do with Gonzales personally, and these recusal concerns are shared by others."

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