Just say no to a Gonzales nomination

When George W. Bush was campaigning for president in 2000, he was asked who he most admired on the United States Supreme Court, and what sorts of justices he might appoint as president. His answers? Justices Antonin Scalia and Clarence Thomas; and "strict constructionists."

Partially for that reason, conservatives fought for Bush in 2000, and he won in a squeaker that — somewhat ironically — was settled by a 5-4 Supreme Court majority that included Sandra Day O'Connor. Those same conservatives fought even harder for him in 2004, and he showed gains across the board in defeating John Kerry. It was hard — though the media certainly worked hard to disagree — not to read those victories as validation that a majority of the country approved of the leadership and policies of the Bush administration.

Now that O'Connor has announced her retirement after 24 years on the bench, speculation is running rampant on who her successor will (or should) be. The name that keeps popping up in that vein is one that should not even be contemplated — current Attorney General Alberto Gonzales. A Gonzales nomination raises numerous red flags, either outright problems or major questions, that should deep-six the idea before it ever gets legs.

The most significant of these problems stems from his two most recent jobs: Attorney General and White House Counsel. Federal law states that a federal judge must recuse himself from a case if, as a federal employee, he participated as an adviser or expressed an opinion concerning the merits of a particular case. It also calls for disqualification from any proceeding where his impartiality might reasonably be questioned.

What does this mean? It means a Justice Gonzales couldn't participate in some of the most important issues facing the Supreme Court, thus leading to the potential of a 4-4 tie (which would uphold the lower court rulings) instead of a 5-4 victory for the conservative perspective. Ed Whelan on National Review explains with three upcoming cases:

Ayotte v. Planned Parenthood presents the constitutionality of New Hampshire’s statute providing for parental notification when minors have abortions. The questions presented include the standard of review of facial challenges to statutes regulating abortion. The United States can be expected to file an amicus brief in this case, precisely because the standard-of-review question directly affects litigation involving the federal partial-birth abortion cases. The attorney general would ordinarily take part in a decision like this. Recusal strike one.

Gonzales v. Oregon presents the question whether Oregon’s doctor-assisted-suicide law runs afoul of the federal Controlled Substances Act. The petitioner is the attorney general himself. Although I don’t think that being a named party in one’s official capacity in litigation necessarily triggers a recusal obligation, it is very likely, given the important and difficult issues that this case presents, that the attorney general has personally participated in decisions involving the litigation. Recusal strike two.

Rumsfeld v. FAIR presents the constitutionality of the Solomon Amendment, which requires universities, as a condition of their receipt of federal funding, to give military recruiters equal access. A number of schools, protesting the military’s policies on homosexual conduct, have challenged the law. It would be very surprising if Gonzales, both as White House Counsel and attorney general, had not personally participated in decisions about this case. Recusal strike three.

There are similar issues with potential cases involving the War on Terror, the Patriot Act, Partial Birth Abortion, and a host of other issues that Gonzales has been involved with.

Then there's the question of whether Gonzales is even a conservative. On issues from abortion to affirmative action to immigration, Gonzales has provided little concrete evidence to suggest he would be the "Constructionist" judge that Bush says he wants.

Oh sure, the Democrats are saying they want someone in the mold of O'Connor — a "moderate" (though that's funny considering they consider Ruth Bader Ginsburg to be a moderate), and some are even calling Gonzales a moderate. But a Gonzales appointment would do no better than maintain the status quo — and would lean dangerously toward a David Souter or Anthony Kennedy legacy that would render Bush’s two electoral victories meaningless.

As Shannen Coffin said Wednesday on NRO:

In the last several terms, Justice O'Connor voted more with Chief Justice Rehnquist than with any other Justice. So it is a bit of a misstatement to say that her seat is so much more important to gaining ground for the conservatives than his. The president has to get this right just to preserve the middle ground that O'Connor at times pulled back from the liberals on the Court. If he gets it wrong, things could be lost for a long time.

In other words, nominating a "moderate" carries too much risk of turning out to be a Kennedy or Souter. Regardless of the nomination, the Senate will be a war zone -- the Democrats have already said so. So why waste this fight on a nominee who the left will attempt to block, and the right will refuse to embrace because of questionable positions? If there's a fight to be had, then at least nominate someone worthy of fighting for.

Sen. Gordon Smith has been successful in Oregon elections because of his ability to appeal simultaneously to the state’s moderate and conservative bases. While he can’t win by steering hard right as conservatives would like, he will face early retirement if the conservative base decides to bow out of his next election and watch from the sidelines.

The filibuster discussion revealed the leading edge of just such a defection. Ed Morrisey at Captain's Quarters is calling for a financial boycott of the GOP leadership, through his Not One Dime campaign. This campaign is designed to withhold funds from the National Republican Senatorial Committee, instead favoring specific candidates who have demonstrated a backbone. As Ed said in a Howard Kurtz column earlier this year:

“When we donate to the NRSC, that money gets distributed by established party leadership in the Senate to campaigns around the country, as the leadership sees fit. That power essentially ties incumbents to the current leadership, because in order to ensure that they get enough funds to have a shot at winning, they need to be seen as supportive of the people holding the purse strings. If the NRSC hasn't got any money of its own, the leadership loses that influence, and the candidates have to put their loyalty elsewhere.”

Righting the ship that is the United States Supreme Court is important enough to conservatives that another nomination in the mold of Kennedy or Souter will be met with massive withdrawal from the Republican and Smith camps. It will make the Not One Dime campaign look puny in comparison.

Conservatives have been voting for Republicans for decades with the expectation that it will lead to a certain amount of de-liberalization of the courts. With the exception of Scalia in 1986 and Thomas in 1991, they have been disappointed by nominees who were never conservative to begin with, or have proven to be liberals in conservative clothing. Now is the opportunity that has motivated those votes for the last 30 years. A Gonzales nomination will tell conservatives that their support means very little.

It will also prove that a Republican Party that can’t govern when it has control of the White House and a 10-seat Senate majority does not deserve, and should not expect, our support.

The signals from the administration have been all over the board: Gonzales is going to be nominated, Gonzales is not a candidate, the White House is testing the waters, the White House is looking at other names. This schizophrenic approach to judicial nominations simply means we have to act now. A nomination is expected early next week, so Sen. Smith needs to hear this weekend that Gonzales is unacceptable, and his failure to convey that to the White House will be at the risk of his future.