Alberto Gonzales - Speculation Over A Supreme Court Nomination

Speculation Over A Supreme Court Nomination

Shortly before the July 1, 2005 retirement announcement of Associate Justice of the Supreme Court of the United States Sandra Day O'Connor, rumors started circulating that a memo had leaked from the White House stating that upon the retirement of either O'Connor or Chief Justice of the United States William Rehnquist, that Gonzales would be the first nominee for a vacancy on the Court.

Quickly, conservative stalwarts such as National Review magazine and Focus on the Family, among other socially conservative groups, stated they would oppose a Gonzales nomination.

Much of their opposition to Gonzales was based on his perceived support of abortion rights as a result of one vote on a single case before the Supreme Court, In re Jane Doe 5 (43 Tex. Sup. J.910).

In a series of cases before the Texas Supreme Court in 2000, the court was asked to construe for the first time the 1999 Texas parental notification law forbidding a physician from performing an abortion on a pregnant, unaccompanied minor without giving notice to the minor’s parents at least 48 hours before the procedure. However Texas legislators adopted a policy to create a judicial bypass exception in those cases where (1) the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notification to either of her parents; (2) notification will not be in the best interest of the minor or (3) notification may lead to physical, sexual or emotional abuse of the minor. The court was asked in these cases to discern legislative intent for the first time to these subjective standards, presumably included in the law as a matter of Texas policy and to make the law constitutional under U.S. Supreme Court precedents. In the seven parental notification decisions rendered by the court, Gonzales voted to grant one bypass. For In re Jane Doe 5 his concurring opinion began with the sentence, "I fully join in the Court's judgment and opinion." He went on, though, to address the three dissenting opinions, primarily one by Nathan L. Hecht alleging that the court majority's members had disregarded legislative intent in favor of their personal ideologies. Gonzales's opinion dealt mostly with how to establish legislative intent. He wrote, "We take the words of the statute as the surest guide to legislative intent. Once we discern the Legislature's intent we must put it into effect, even if we ourselves might have made different policy choices." He added, "o construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism" and "While the ramifications of such a law and the results of the Court's decision here may be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view on the decisions of the Legislature."

Political commentators had suggested that Bush forecast the selection of Gonzales with his comments defending the Attorney General made on July 6, 2005 in Copenhagen, Denmark. Bush stated, "I don't like it when a friend gets criticized. I'm loyal to my friends. All of a sudden this fellow, who is a good public servant and a really fine person, is under fire. And so, do I like it? No, I don't like it, at all." However, this speculation proved to be incorrect, as Bush nominated D.C. Circuit Court of Appeals Judge John Roberts to the Supreme Court.

After the death of Chief Justice William Rehnquist on September 3, 2005, creating another vacancy, speculation resumed that President Bush might nominate Gonzales to the Court. This again proved to be incorrect, as Bush decided to nominate Roberts to the Chief Justice position, and on October 3, 2005, nominated Harriet Miers as Associate Justice, to replace Justice O'Connor. On October 27, 2005, Miers withdrew her nomination, again renewing speculation about a possible Gonzales nomination. This was laid to rest when Judge Samuel Alito received the nomination and subsequent confirmation.

On September 11, 2005 U.S. Senate Committee on the Judiciary chairman Arlen Specter was quoted as saying that it was "a little too soon" after Gonzales's appointment as Attorney General for him to be appointed to another position, and that such an appointment would require a new series of confirmation hearings. “He is attacked a lot,” observes Larry Sabato, a political analyst and the director of the Center for Politics at the University of Virginia, who adds that the serious political spats “virtually eliminated him from the Supreme Court chase.