The Right Coast

June 27, 2005
"No, not Gonzales!" That Really Might Be the Kind of Cronyism that the Federalist Objected to...
By Gail Heriot

In a column entitled, "No, not Gonzales!," Robert Novak reports a "torrent" of leaks from the White House that Alberto Gonzales will be Bush’s nominee to the Supreme Court no matter whose resignation creates the vacancy. Conservatives are hoping this is not true. And maybe it isn’t. (Indeed, as of this writing it’s not even clear that there is a vacancy.)

Gonzales has a lot of opposition on the right. Pro-life advocates object to him on account of the views he expressed while he briefly served as a Bush-appointed member of the Texas Supreme Court. Opponents of racial and gender preferences, on the other hand, remember that Gonzales energetically intervened over the objections of Solicitor General Ted Olson, Assistant Attorney General for Civil Rights Ralph Boyd and Assistant Secretary of Education for the Office of Civil Rights Gerald Reynolds to prevent the United States from coming out in full support of Barbara Grutter and Jennifer Gratz, the lead plaintiffs in the lawsuits against the University of Michigan over its race-based admissions policies. Grutter and Gratz felt betrayed by the luke-warm, limited endorsement. And there is reason to believe Gonzales' intervention affected the outcome of the cases.

"I know that I’ve been helped because of my ethnicity," he told the Los Angeles Times. "Personally, I’m not offended that race is a factor. But it should never be the overriding factor or the most important factor."

Would any GOP member of the Senate vote against Gonzales on this account? Perhaps not. Most Republicans agree that a President, no matter what party he is from, must be given substantial (though not infinite) discretion to appoint judges of his choice. Bush insists that conservatives are mistaken about Gonzales. He knows the man well. Their personal friendship goes back many years. Shouldn't he then be cut some slack to make his choice?

But some would say that the fact that Bush and Gonzales are friends is just the problem. The one occasion that everyone agrees that the members of the Senate should be willing to resist an ill-considered nomination is when it is inspired by family connection or personal attachment. Bush's argument is favor of Gonzales is precisely that: I know this guy well. He says "trust me." But people make mistakes when they deal with friends.

In Federalist No. 76, Alexander Hamilton argued that the Senate’s role in the confirmation process should be largely passive. Members of the Senate should not second guess the President. It’s his choice. But they must act as a check upon "the spirit of favoritism" on the part of the President:

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity."

We'll see what happens.