ConfirmThem

By AndrewHyman Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

In the year 2000, the Texas Supreme Court issued an opinion titled In Re Jane Doe, in which that court held that a minor seeking an abortion did not need to notify either of her parents. Then-Justice Alberto Gonzales fully joined in that opinion of the court, but then-Justice Priscilla Owen dissented. Following are some excerpts from Owen's dissent. These excerpts are understandably of concern to many people wary of a Gonzales nomination to the Supreme Court.

"[T]his Court has usurped the role of the trial court, reweighed the evidence, and drawn its own conclusions. The Court has forsaken any semblance of abiding by principles of appellate review."

"The Court has disregarded the law and has trampled the process on which the legitimacy of our law depends."

Personally, I have not examined this case in enough detail to determine if Justice Owen was right or wrong. That would require not just reading all of the opinions in this Texas Supreme Court case, but also would require reading the lower court opinions, as well as the complete record in the case. But this much is pretty clear: nominating Attorney General Gonzales for a position on the U.S. Supreme Court would be highly controversial among Republicans more than among Democrats. There are plenty of possible U.S. Supreme Court nominees for whom this would likely not be the case, including but not limited to: Alito, Garza, Jones, Estrada, Cornyn, Pryor, and Luttig.

UPDATE: The Washington Post reported as follows on September 10, 2005:

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..."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....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."

National Review had an editorial June 28, 2005 urging that Gonzales not be nominated for the Supreme Court.

Also on June 28, 2005, Robert Novak called Gonzales "markedly less conservative than any other [prospective] nominee."

Novak also wrote an article on January 23, 2003 about Gonzales's role with respect to affirmative action.

Ed Whelan recently pointed out on June 20 that, as a Supreme Court Justice, Gonzales might have to recuse himself in a wide variety of cases.

Hugh Hewitt and Bill Kristol discussed the prospects for a Gonzales nomination on June 22, 2005 (the transcript is here), and Kristol said, "I still think that Gonzales is unlikely to be much of an improvement on O’Connor, and I would prefer to really have two solid conservatives."

At redstate.org, Mike Krempasky urged on June 27, 2005 that Gonzales not be nominated for Supreme Court, and reported on July 1 that General Gonzales is campaigning for the nomination. I wish Mike would spill the beans and say how he really feels.

The Supreme Court Nomination Blog (SCtN) has a profile of Attorney General Gonzales, and a very informative set of links, here.

Human Events wrote back in 2001 about the role of Attorney General Gonzales in the parental notification case. Human Events also published this email referenced in the NY Times, and the email is disturbing if accurate.

Generally speaking, Gonzales has a very controversial attitude about the Supreme Court's role. He says: "The Constitution is what the Supreme Court says it is."