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."
If nominated, Gonzales would be the first attorney general and the first former White House counsel named to the court since the adoption of a law in 1974 designed to prevent executive branch officials who ascend to the court from ruling on policies that they helped make.
The law requires a justice to recuse himself "in any proceeding in which his impartiality might reasonably be questioned."
The 1974 amendment adds that a justice "shall" recuse "where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy."
This provision was enacted after then-Associate Justice William H. Rehnquist had cast a fifth and deciding vote in a 1972 case, rejecting a challenge to an Army domestic intelligence-gathering program that Rehnquist had defended in Senate testimony while in the Nixon Justice Department.
Gonzales, as White House counsel, was a key player in administration decisions about the creation of military tribunals to try terrorism suspects and in applying the Geneva Conventions to the U.S. prison for terrorism suspects at Guantanamo Bay, Cuba.
In the fall, the Supreme Court will hear arguments in two Justice Department appeals in which Gonzales is a named party. In Gonzales v. Oregon , No. 04-623, the Justice Department is asking the court to uphold its authority to bar doctors from prescribing controlled substances to terminal patients who have opted to end their lives under an Oregon law that permits physician-assisted suicide.
In Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal , No. 04-1084 Term, the Justice Department seeks to ban the importation of hallucinogenic tea used in religious rituals.
Both cases were cited in LaRue's memo -- along with three challenges to the federal ban on what opponents call partial birth abortions which are pending in lower courts and are likely to be appealed to the Supreme Court in the next year or two.
Past votes at the court suggest the justices would divide 4 to 4 on the ban without Sandra Day O'Connor, who announced this month she will retire.
M. Edward Whelan III, a former Bush administration official who heads the Ethics and Public Policy Center, a conservative think tank, said that Gonzales's recusal burden would be "particularly heavy for a period of three or four years," until all issues he had worked on in the executive branch were behind him.
But Steven C. Lubet, a professor of law at Northwestern University who specializes in legal ethics, said that Gonzales might not have to recuse very often.
Lubet noted that even in cases in which Gonzales is a named party, he is involved only in his official capacity, and is not personally at risk of civil or criminal penalty.
When Justice Antonin Scalia refused last year to recuse himself from a case involving Vice President Cheney, who is a friend, he cited the fact that Cheney was being sued in his official capacity.
As to Gonzales's involvement in policymaking, Lubet said that a current justice, Stephen G. Breyer, has repeatedly ruled on cases involving federal sentencing guidelines, even though he helped write them as a Senate aide and, later, as a member of a federal commission.
And though the law lays out standards for recusal, it is up to each justice whether those standards apply to him or her in any case.
"It would be entirely up to Gonzales to decide," Lubet said. "It would be a factual determination in each instance and not a blanket matter on the Patriot Act or Guantanamo."