By Jo Becker and Dan Eggen
Washington Post Staff Writers
Saturday, September 10, 2005
Supporters of Attorney General Alberto R. Gonzales have launched a campaign to rebut criticism that he is not reliably conservative enough to serve on the Supreme Court, a move likely to intensify a rift within Republican circles over one of President Bush's closest confidants.
The group of former Gonzales aides and other Republicans still in the Bush administration -- most of whom are close to top White House officials -- are coordinating with one another, sharpening common lines of argument, then circulating these points on Capitol Hill, in conservative circles and with reporters, according to several people involved.
With President Bush confronting a second high court vacancy, the maneuvering suggests a determination to preserve Gonzales's viability as a potential nominee. The heart of their case is that conservative groups -- many of whom have drawn bright public lines warning Bush not to promote Gonzales to the court -- have fundamentally misread a man whose record shows he is committed to their aim of moving the judiciary to the right.
"A lot of us who worked with him in the White House counsel's office feel strongly that the opposition is misguided and rather ill-informed," said David Leitch, a former Gonzales deputy who is now general counsel for Ford Motor Co. "We're not out lobbying for the attorney general to be nominated to the Supreme Court; that's up to the president. . . . But we don't want to see a good man who has been a very solid conservative besmirched by fear and rumor."
Republican operatives close to the White House have long believed that President Bush would like to nominate Gonzales, not only because of their friendship but also because of the historic opportunity it would afford him to appoint the first Hispanic justice -- a potential major boost in his long-running campaign to build Republican support among the growing Hispanic population.
But it is a measure of the importance that conservative leaders place on definitively shifting the Supreme Court's balance that Bush cannot do so without prompting an outcry -- confronting him with a test of how willing he is to let political allies impose litmus tests on him.
Bush came to Gonzales's defense this summer and made plain he was irritated by the conservative criticism. Earlier this week, bantering with reporters at a photo opportunity, he made clear Gonzales remains on his list for the vacancy created by the imminent retirement of Justice Sandra Day O'Connor.
But the anti-Gonzales drumbeat on the right has not quieted. Haunted by Republican presidential court picks who have proved more moderate than they would like once on the bench, conservatives argue that Gonzales has not shown himself devoted to their cause on such hot-button issues as abortion and affirmative action. In the face of such concern, William Kristol, the editor of the conservative Weekly Standard, said that for Bush to pick Gonzales would be the equivalent of Bush's father's decision to break his "no new taxes" pledge.
"You finally get a Republican president, a real Republican majority in the Senate and then you don't move the court to the right?" he asked. "It would be totally demoralizing to the president's supporters."
Republican pollster Frank Luntz, who has conducted telephone focus groups on the pending nomination of John G. Roberts Jr., Bush's choice to replace the late Chief Justice William H. Rehnquist, said it is too early to tell how a Gonzales choice would be perceived among rank-and-file Republicans or key swing voters. But, he said, "the more dangerous choice is to do something to lose your own base."
The conservative case against Gonzales begins with his two-year tenure as a Texas Supreme Court justice. Five years ago, Gonzales sided with the court's majority in allowing a 17-year-old girl to obtain an abortion without notifying her parents.
The opinion, however, was based on a recently passed state law allowing minors to obtain a judicial bypass. Gonzales wrote that he felt a duty to follow the law "without imposing my moral view," even if the ramifications "may be personally troubling to me as a parent."
As Bush's White House counsel, Gonzales again clashed with conservatives over the administration's approach to affirmative action. When the use of race in admissions at the University of Michigan came before the Supreme Court in 2003, then-Solicitor General Theodore B. Olson wanted to confront affirmative action programs head on. Gonzales, then the White House counsel, argued for the softer position the administration ultimately took, which objected only to the way in which Michigan had pursued its diversity goals.
But Olson said in an interview that he does not know to what extent Gonzales influenced or merely shared the president's views.
More generally, conservatives say, Gonzales simply has not been out on the front lines loudly sharing his views on questions of judicial philosophy.
"Al Gonzales has never said or written anything to indicate that he has pronounced conservative convictions -- it's been a symphony of silence," said Bruce Fein, a conservative legal scholar who served in the Justice Department during the Reagan administration.
After the first Supreme Court vacancy, the ferocity of such criticism surprised many Justice Department aides and others who had worked with Gonzales, who worried it would damage his effectiveness as attorney general, according to interviews with those involved. But this time they are fighting back. While aides to Gonzales declined to comment, citing the sensitivity surrounding the Supreme Court selection process, surrogates were more than glad to.
Brad Berenson, an associate White House counsel from 2001 to 2003, said that "a lot of the objections are based on fear and doubt rather than facts and data."
"The conservatives who know Judge Gonzales the best are, to a person, strong supporters of his," Berenson said. The conservatives who know him the least are the ones in opposition. That should tell you something."
Gonzales supporters say skeptics should look at the judges he has vetted and helped onto the bench, many of them darlings of the conservative movement, including Roberts. They also note that at Gonzales's urging the American Bar Association has been excluded from the judicial selection process. (Many conservatives believe the ABA is liberally biased.) And as attorney general, Gonzales steered a rightward course set by his predecessor, John D. Ashcroft, on issues ranging from terrorism to pornography, his backers argue.
Sen. John Cornyn (R-Tex.), who said his kind words for Gonzales earlier this week prompted a slew of angry phone calls, asserted that the arguments against the attorney general "just don't hold water."
But Kay Daly, president of the Coalition for a Fair Judiciary, does not want to take a chance -- and believes that in the end Bush will not either. "We expect President Bush to keep his promise" to appoint a conservative justice in the mold of Clarence Thomas and Antonin Scalia, she said, "and there are others who fit that mold more closely."