Right Wing Risks a Supreme Injustice

Frank del Olmo is associate editor of The Times.

The whispering campaign that Republican right-wingers have been waging against White House Counsel Alberto R. Gonzales has become a full-throated roar. This is all the more reason President Bush must stand by his old Texas friend and keep Gonzales’ name atop the list for the next vacancy on the nation’s highest court, whenever it comes.

The conservative zealots who want to trash affirmative action have been in a tizzy since last week, when a sharply divided Supreme Court came down in favor of racial and ethnic diversity as a social good that government should help promote.

“In a society like our own,” Justice Sandra Day O’Connor wrote for the majority, “race unfortunately still matters.” That clear-eyed stance echoes the White House brief in the case, which took Gonzales’ position that diversity is a worthy goal rather than Solicitor General Theodore B. Olson’s stance against race-based criteria. And that is precisely what drives conservatives nuts about the White House’s top lawyer.

“This is a very political decision, and the administration’s brief played a crucial role,” said Linda Chavez, the extreme right’s reliable Latino mouthpiece. She told the New York Times that Gonzales was to blame. “He was really the key player in arguing for a down-the-middle compromise position before the court.”


Chavez’s dismissive remarks are part of a long-running campaign that conservatives have been waging against Gonzales, using unfavorable leaks to right-wing pundits and in-jokes like “Al Gonzales is Spanish for David Souter.” Souter is the Supreme Court justice who was billed as a conservative when appointed in 1990 but has since become a member of the high court’s liberal bloc. He voted with the majority in favor of the affirmative action program at the Michigan law school.

The anti-Gonzales campaign began a year ago, when it was first rumored that Bush wanted to make Gonzales the first Latino to sit on the Supreme Court. A Latino Supreme Court nominee would also enhance Bush’s effort to woo Latino voters.

Unfortunately for Gonzales, his tenure on the Texas Supreme Court gave his enemies ammunition. He was regarded as a moderate and cast a key vote in an abortion case -- against a rigid interpretation of Texas’ law requiring parental consent before a minor can have an abortion -- that made him suspect as a “stealth liberal,” in the words of Texas Monthly magazine.

Gonzales’ role in Bush’s reelection campaign takes on added importance now that the Republican right has decided to take its campaign against Gonzales public.


The White House counsel, a Mexican American who worked his way from poverty to Harvard Law School, is a far more attractive, and politically salable, judicial nominee than Miguel Estrada. Gonzales is one of eight children born to migrant workers. He attended public schools in Houston and spent two years in the military before deciding to go to college. He was a partner in a prestigious Houston law firm before joining Bush’s gubernatorial staff.

Estrada is the Washington attorney whom Bush wants to put on the appeals court for the District of Columbia. But his nomination has been held up by Senate Democrats. Although he is an immigrant from Honduras, Estrada came from a well-to-do family and was educated before arriving in this country, making it difficult to sell him as the Horatio Alger success story that Gonzales clearly is.

Worse, Estrada is as arrogant as Gonzales is self-effacing. Estrada also belongs to the Federalist Society, a right-wing legal group. Gonzales’ brief time on the Texas bench suggests that he is a legal pragmatist, or perhaps even a “compassionate conservative.”

It would be tough for Senate Democrats to hold up two of Bush’s Latino judicial nominees. Keeping a Latino off the Supreme Court would anger many Latino voters. It’s hard to envision even knee-jerk liberals in the Senate doing such a stupid thing. Which only makes it all the more shortsighted for knee-jerk conservatives to lead a charge against Gonzales.