Right Wing Objects to Bush Aide as a Justice

For conservatives who care deeply about the U.S. Supreme Court, all the stars look to be aligned.

With the possibility of a high court vacancy coming up, President Bush would be set to choose his first justice and have his choice win approval from a Republican-controlled Senate.

Yet many conservative activists are grumbling -- mostly in private but some publicly -- that Bush will betray their cause if he names his Texas friend and White House Counsel Alberto R. Gonzales to the court.

Gonzales, they say, is a moderate who would support affirmative action and uphold the right to abortion, two positions many conservatives find unacceptable.

If Chief Justice William H. Rehnquist were to retire, as has been speculated he might do this month, and Bush nominated Gonzales to replace him, the move would shift the court to the left, not the right, they say.

Conservative lawyers in and outside the administration have carried on a whispering campaign in Washington, arguing that Gonzales, 47, is neither a true conservative nor “Supreme Court caliber.”

Meanwhile, leaders of Christian evangelical groups and grass-roots conservative organizations have been alerting their members and speaking out in hopes of heading off a Gonzales nomination.

“We are absolutely opposed to Alberto Gonzales. He is soft on the constitutional issues we care most about,” says Tom Minnery, vice president for public policy at Focus on the Family, an evangelical group based in Colorado Springs, Colo.

As a Texas Supreme Court justice, Gonzales voted in several cases to allow a teenage girl to obtain an abortion without her parents’ knowledge. He said he was following Texas law.

Conservative activists are convinced that a Justice Gonzales would not vote to overturn Roe vs. Wade, the 1973 decision that legalized abortion nationwide.

“How in the world can someone with his views be a suitable nominee for George W. Bush? It makes no sense to us,” Minnery said.

Speculation that Bush would choose Gonzales has gained steam because of their long association. The Harvard-educated lawyer has been a trusted friend of the president since Bush recruited him as a general counsel when he was elected governor of Texas in 1994.

Gary Bauer, who ran for the Republican presidential nomination three years ago, said a Supreme Court vacancy would put Bush to a test with his conservative base.

“I think any conservative would be deeply concerned by a Gonzales nomination, particularly if he were to replace the chief justice,” said Bauer, who founded a Virginia-based group called American Values. Its Web site says a Supreme Court vacancy is a “time for prayer and fasting,” and members are urged to send a red rose to the White House to remind Bush of his pledge to protect “the unborn.”

“My deep hope is the president would pick one of the many individuals that all conservatives could support,” Bauer said.

The activists say they have conveyed their views to the White House, although the matter is complicated because Gonzales is in charge of vetting the president’s nominees to the federal courts.

“Karl Rove has heard it from many of us,” one conservative activist said, referring to the head of the White House’s political operations.

All the jockeying and speculation aside, there is no vacancy on the Supreme Court, and no clear sign anyone will retire this year.

The justices, far from talking about retirement, have been planning for the fall session. They have scheduled a special argument session on Sept. 8 to consider the challenges to the McCain-Feingold law that bans unregulated “soft money” from flowing to political parties.

Rehnquist, 78, has been seen as the most likely to retire, but he has dismissed talk that he is quitting. He has rehired his administrative assistant for another year and has speaking engagements set for the fall.

Nonetheless, liberal and conservative legal groups have geared up for a fight this summer over a Bush nomination to the Supreme Court.

People for the American Way and the Alliance for Justice, liberal lobby groups, have challenged Bush’s nominees to the U.S. Court of Appeals, but their leaders have kept their eyes on the Supreme Court.

“The nation will be ‘courting disaster’ with the next Supreme Court vacancy,” Ralph G. Neas, president of People for the American Way, said in a report issued last week. A Bush nominee who shares “the extreme far-right” views of Justices Antonin Scalia and Clarence Thomas could overturn settled law in areas ranging from the environment and civil rights to workers’ rights and separation of church and state, Neas said.

To counter a liberal onslaught, C. Boyden Gray, White House counsel for former President Bush, has organized a conservative coalition known as the Committee for Justice to defend the president’s court nominees.

“The liberal interest groups will oppose anyone he nominates. They want to make any nomination a referendum on abortion,” Gray said.

Yet this classic liberal versus conservative clash could be scrambled if Bush chose Gonzales. It would be a historic move -- he would be the first Latino to serve on the high court.

And it would not be the first time conservatives were dismayed by the Supreme Court choice of a popular conservative president.

In 1981, President Reagan came to office having pledged to protect “the sanctity of innocent human life” and to return prayers to public schools. A few months later, when a Supreme Court seat became vacant, Reagan decided to fulfill another campaign promise: to appoint the first woman to the Supreme Court. He chose Arizona state judge Sandra Day O’Connor.

The selection was widely hailed, including by liberal Democrats such as Sen. Edward M. Kennedy of Massachusetts.

But Reagan’s choice was denounced by some conservatives. The Rev. Jerry Falwell, then head of the Moral Majority, called O’Connor’s nomination a “disaster,” and the head of the National Right to Life Committee called it a “betrayal.”

Over 22 years, Justice O’Connor has fulfilled the predictions of her supporters and her critics. A centrist on most issues, she has cast deciding votes to preserve the right to abortion and to prevent a return to school-sponsored prayers, including at graduation ceremonies.

This week, she is likely to cast the deciding vote on the fate of college affirmative action in a pair of University of Michigan cases.

In January, Gonzales played a key role in putting a moderate tone on the administration’s friend-of-the-court brief in the case.

Two questions were at issue. First, may colleges consider a student’s race in deciding who is admitted? And if so, how much weight can be given to race?

Conservatives at the Justice Department, including Solicitor General Theodore B. Olson, believed the answer to the first question should be no. They said the high court should overrule the Bakke decision of 1978 and say diversity is not a sufficiently compelling goal that justifies race-based decision making.

Instead, Bush, with Gonzales at his side, said he believed the pursuit of diversity was a worthy goal. However, Bush said colleges should use “race-neutral” policies to increase enrollment of black and Latino students.

It is not clear that the administration’s stand will sway the court, but the flap hurt Gonzales among some conservatives.

Roger Clegg, general counsel for the Center for Equal Opportunity, said Gonzales “diluted a very good brief prepared by the solicitor general.”

“That concerns me,” he said, adding “I would not want to see anyone nominated [to the high court] who is not solidly opposed to racial quotas.”

There are conservatives who speak well of Gonzales, and in particular of the job he has done as White House counsel.

“He has done a really terrific job in that respect” as the president’s chief lawyer, said Ken Connor, president of the conservative Family Research Council.

Gonzales has excluded the American Bar Assn. from its traditional role of evaluating potential judges before they are nominated. While the ABA says it seeks to maintain a high standard of professional competence, conservatives accuse the group of having a liberal bias.

Gonzales also has won plaudits on the right for helping Bush select conservatives for the lower courts and for bolstering Bush’s authority in the war on terrorism.

But the praise ends when the talk turns to the Supreme Court.

“There are concerns among a variety of pro-life and pro-family groups about the judge’s philosophy,” Connor said. “I don’t think the president helps himself if he splits his base.”

So far, Bush has won steady praise on the right, but some conservatives say a weak Supreme Court appointment could change that. Chapman University law professor John Eastman said Bush’s pledge to appoint conservatives in the mold of Scalia and Thomas is a make-or-break issue, akin to the “no new taxes” pledge taken by his father.

“I don’t have much firsthand knowledge of [Gonzales], but I know there are many conservatives who believe that such an appointment would be a breach of a campaign promise just as serious as the breach of the ‘no new taxes’ pledge,” which former President Bush broke in 1990, Eastman said. “If this administration moved the court to the left, it would be a huge political problem for the base of his party.”