Conservatives Want Alberto Gonzales Kept Off Supreme Court

WASHINGTON May 12, 2003 -- With legal and political insiders nearly certain President Bush soon will get to pick a new Supreme Court justice, conservatives close to the White House are quietly trying to derail the potential nomination of a top aide to the president.

Their target is White House counsel Alberto Gonzales, a longtime friend of Bush and a former Texas Supreme Court judge. Gonzales is a trusted aide in an administration that places a premium on loyalty. And White House sources have suggested that Bush wants to give the high court its first Hispanic justice.

But conservatives inside and outside the administration have long suspected that Gonzales, 47, does not agree with them on key social policy issues -- namely, their opposition to abortion and affirmative action. So when the Bush administration didn't go as far as many GOP hard-liners wanted in opposing the University of Michigan's affirmative action program this month, some blamed Gonzales.

That has led to an unusually aggressive "whisper" campaign. Conservative activists who have been successful in persuading Bush to nominate several hard-right candidates to lower federal courts have made it clear to reporters, Bush aides and others that they do not believe Gonzales is Supreme Court material.

The campaign comes amid speculation that at least one of the nine justices will retire this summer. Conservative Chief Justice William Rehnquist, 78, appears to be the most likely to leave the court soon. Analysts say the anti-Gonzales chatter symbolizes the increasingly aggressive nature of the political maneuvering behind Supreme Court nominations.

"In my 15 years of watching the nomination process, I have never seen something so dramatic happen so early. This is a very aggressive campaign by legal conservatives to hurt (Gonzales') chances for the high court," says Ronald Klain, who was chief counsel to Sen. Joseph Biden when the Delaware Democrat presided over two Senate confirmation hearings. Klain later was a top legal adviser to President Clinton during two Supreme Court nominations.

The jockeying to influence Bush in the nomination process is important because a president usually wants to have a successor's name in hand when a Supreme Court retirement is first announced.

In recent weeks, Bush aides debated over what stance to take in a Supreme Court case that challenges the University of Michigan's system of favoring minorities in admissions. Conservatives such as Solicitor General Theodore Olson argued that the administration should not only oppose Michigan's program, but also encourage the high court to reject affirmative action altogether.

But Gonzales successfully argued for a legal stance in which the White House is opposing the Michigan program, but is not pushing for an end to affirmative action. That angered some conservatives, who are citing Gonzales' vote as a Texas judge against a law requiring teenagers seeking abortions to notify their parents -- without exception.

Conservative columnist Robert Novak focused on those Gonzales moves in a syndicated article last week. Novak questioned whether Gonzales deserves a seat on the high court and said conservatives were warning Bush not to commit a "grave political blunder," as they believe Bush's father did in appointing David Souter to the court in 1990. Souter has turned out to be a liberal on the current court.

Earlier in January, The Wall Street Journal's conservative editorial page challenged Gonzales to oppose affirmative action to show that he had Supreme Court timbre. Meanwhile, prominent conservatives inside and outside the Bush administration are increasingly -- but privately -- complaining about Gonzales.

That criticism of Gonzales is just one factor that could influence Bush if he soon has the chance to make his first appointment to the high court. Other factors: pressure from Hispanic groups to pick a Hispanic other than Gonzales, and a vow by Senate Democrats to oppose any court nominee whom they view as too extreme in his or her views.

Gonzales is one of a few prominent lawyers who are on various "short lists" of potential court nominees kept by administration officials.

Others include J. Michael Luttig and J. Harvie Wilkinson, veteran judges of the Richmond, Va.-based U.S. Court of Appeals for the 4th Circuit; Judge Samuel Alito of the 3rd Circuit in Newark, N.J.; Judge Emilio Garza of the 5th Circuit in San Antonio; California Supreme Court Justice Janice Brown; and Olson.

Some conservatives also are touting Miguel Estrada, a native of Honduras and a former Justice Department lawyer who has been nominated by Bush to serve on the U.S. appeals court in Washington, D.C. Democrats are protesting his lower court nomination, so Estrada would be a long shot for any high court appointment this year.

For conservatives who would oppose a Gonzales nomination, speaking out against him "is a risky strategy, because Judge Gonzales is clearly a very powerful force in the administration," says Klain, who was an adviser to Democrat Al Gore when Gore lost to Bush in the 2000 election. That is likely why most of Gonzales' harshest critics, especially those in the administration, decline to speak publicly. And those who do speak up cast their words carefully.

"I am very disappointed in his position in the Michigan case, but he has done a fine job as White House counsel," says Todd Gaziano, a legal director at the Heritage Foundation, a policy group that is home to staunch conservatives.

"If it's true that Judge Gonzales played a strong role in weakening the Justice Department's criticism of racial preferences, then we would have very serious concerns about nominating (him) to the Supreme Court," says Roger Clegg of the Center for Equal Opportunity, which opposes affirmative action.

Gonzales supports allowing universities to consider an applicant's race in order to ensure diverse campuses. But White House insiders say that Bush already was inclined to agree with that stance, even as he opposed Michigan's specific policies. Gonzales did not return calls seeking comment for this story.

Much of conservatives' disapproval of Gonzales likely has less to do with the Michigan case than with their fear that a Bush nominee could be "another Souter."

Thirteen years ago, then-White House chief of staff John Sununu called Souter's nomination a "home run" for conservatives. But today, Souter is firmly in the high court's liberal bloc, supporting abortion rights, affirmative action and a high wall of separation between church and state.

A Republican president and the GOP takeover of the Senate in the November elections probably increased the chances that Rehnquist would step down. He was put on the bench by Republican President Nixon in 1972 and elevated to chief by Republican President Reagan in 1986.

If Bush were to replace the chief with Gonzales, he could actually move the divided court -- which now has five conservative justices who generally vote as a bloc -- to the left.

The other justices who might be considering retirement are Sandra Day O'Connor, 72, a conservative who sometimes votes with the court's more liberal justices; and John Paul Stevens, 82, who votes with the liberals. Neither has shown signs of slowing down.

If Rehnquist were to retire, the White House might consider elevating one of the sitting justices to chief and then putting a new member of the court into that person's seat. Such a move could give Bush a chance to appease competing constituencies.