OF THE MANY LAWYERS under consideration for nomination to the seat vacated by Sandra Day O'Connor, only one, Attorney General Alberto Gonzales, is drawing substantially negative reviews from conservatives. Of course, it's understandable why Gonzales is on the president's short list. Bush first hired him years ago and has held him in such high regard as to appoint him to a series of important jobs--even, years ago, to a judgeship on the Texas Supreme Court. In an interview in USA Today, Bush called Gonzales "a great friend of mine." Bush also likes to make diversity history, so to speak, and, having already given us, in Gonzales, the nation's first ever Hispanic attorney general, he could now decide to make him our first ever Hispanic justice.
Yet for Gonzales to be on the short list, he presumably would have to be the kind of lawyer the president has said he wants to name to the Court--one whose approach to judging would be similar to those of Justices Scalia and Thomas. Here is the source of the conservative wariness toward a Justice Gonzales, for it is not apparent to many conservatives that Gonzales measures up in that rather urgent respect.
Some conservatives have taken issue with the view of the equal protection clause he advanced within the administration during its deliberations over the 2003 affirmative action cases. And some have objected to his interpretation (while he sat on the Texas Supreme Court) of a state abortion law. More importantly, few if any of the conservatives who have worked with him have stood in support of the proposition that he understands the judicial power and its proper exercise in the interpretation and application of the Constitution and other law. The impression many conservatives have is that Gonzales is conventional in his legal thinking and unlikely to repair to first principles were he on the Court. The fear is that a Justice Gonzales would turn out like so many other justices appointed by Republican presidents who have tacked to the judicial middle, and even the left.
Gonzales is not only on the short list but is an adviser to the president on judicial nominees. Indeed, like attorneys general since the Lincoln presidency, Gonzales is the president's principal adviser in this area. Surely he knows how conservatives see him; and surely he knows that it does the president no political good to make a nomination to the High Court--especially if it is the only one Bush gets to make--that dispirits conservatives, who form his strongest base of support. Surely, too, Gonzales can check his own ambition in deference to the president he serves. The attorney general would be doing the president a huge favor if, as chief counselor on judicial selection, he advised Bush that he has many good candidates to choose among in naming O'Connor's successor, and that his own name should be taken off the list.
Terry Eastland is publisher of The Weekly Standard.