Justice Gonzales? Conservatives See Recusal Problem

As the White House weighs its pick to replace retiring Justice Sandra Day O’Connor on the Supreme Court, some conservatives have raised a new objection to the idea of nominating Atty. Gen. Alberto R. Gonzales: As a justice, he might have to recuse himself on cases he handled in the White House or at the Justice Department.

That’s a problem, conservatives say, because it raises the likelihood that the court would deadlock 4 to 4 on the issues they care most about.

“Gonzales may well be required to recuse himself from the three most important cases already on the court’s docket for next term,” said M. Edward Whelan, president of the Ethics and Public Policy Center, who has been arguing the point on the weblog of the conservative magazine National Review.

The cases, he said, “involve parental notification for abortion, physician-assisted suicide, and the clash between universities and military recruiters over the military’s policy on homosexuals.”

Some conservatives had expressed objections to Gonzales, saying they did not believe the former Texas jurist would be as reliable a conservative vote as they would like to see on the court. That criticism prompted a rebuke from President Bush, who considers Gonzales a close friend.

“I don’t like it when a friend gets criticized,” Bush said. “I’m loyal to my friends.”

Since then, conservative groups have been careful to keep any concerns about Gonzales private. “My organization will support the president’s nominee, including Alberto Gonzales,” said Sean Rushton, executive director of the Committee for Justice, a conservative advocacy group.

Conservative groups insisted they were not raising the recusal issue as a more polite way to oppose Gonzales.

“It is not a cover for objections on other issues,” said Wendy Long, chief counsel to the Judicial Confirmation Network, another conservative group advocating the selection of conservative judges. “It’s a legitimate factor that would have to be weighed by any president elevating an attorney general who might sit on a court reviewing litigation in which the administration had taken a position, particularly if the recusal would cause a 4-4 split on the court.”

A White House official declined to comment on the issue on the record.

Federal law requires justices to recuse themselves from “any proceeding in which [their] impartiality might reasonably be questioned.” That includes justices who “served in governmental employment and in such capacity participated as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy.”

In recent days, Concerned Women for America, another conservative advocacy group, has circulated a memo listing six cases on which it fears Gonzales would have to recuse himself were he named to the Supreme Court.

“It’s nothing personal, and we haven’t expressed a position on him,” said Jan LaRue, the organization’s chief counsel, who wrote the memo. “My point has been all along that I don’t really expect the president to nominate [Gonzales] because of the issues described in the memo.”

The cases listed by LaRue included Gonzales vs. Oregon, a physician-assisted suicide dispute, and Gonzales vs. O Centro Espirita Beneficiente Uniao do Vegetal, a religious freedom case involving the use in religious ceremonies of a hallucinogenic drug prohibited under the Controlled Substances Act.

She also cited two abortion-related cases: Ayotte vs. Planned Parenthood of Northern New England, a parental-notification case, and Scheidler vs. NOW, which concerns the application of federal racketeering and extortion laws to punish aggressive antiabortion protesters.

In addition, Gonzales was active in drafting the administration’s policy on holding terrorism suspects at the U.S. detention facility at Guantanamo Bay, Cuba. Challenges to those detentions are winding their way through the court system.

Times staff writer Edwin Chen contributed to this report.