The Right Coast

July 07, 2005
Al Gonzales, Abe Fortas and Cronyism
By Gail Heriot

"‘Al Gonzales is a great friend of mine,’" Bush recently said in a USA Today telephone interview. "‘When a friend gets attacked, I don't like it.’''

Precisely. And that is one of the reasons that appointing close friends to critical governmental positions is not the best Presidential practice when it can be avoided. It gets emotional. It’s easy to lose one’s judgment. And that’s part of what Robert Novak suggests in his latest column, entitled, "Bush Is Biggest Obstacle to a Conservative Court." (See my earlier post on the same topic and Novak’s earlier column on Gonzales.)

It’s not that a President should never appoint a friend to high office. Presidents tend to have a lot of talented friends. If you excluded them all from Presidential appointment, the country would be poorer for it. But it does mean that the fact that a potential appointee is a "great friend" of the President is not an argument in favor of his appointment.

And I think it goes further than that. A gentle thumb on the scale should go against anyone who is the President’s friend as a counterweight to the deference the Senate should normally accord the President. The closer the friend, the less gentle the thumb. When the President appoints a close friend, he should be prepared to demonstrate that the nominee is indeed the best person for the job.

That’s impossible to do with Gonzales. For one thing, even if Gonzales were the best person in the abstract (and he does not appear to be), a Justice Gonzales might have to recuse himself from crucial decisions on the lawfulness of Bush’s War on Terror. As former White House Counsel and Attorney General, he has had a major hand in formulating these policies. He cannot now be their judge. A court that is short one Republican-appointed justice is the last thing President Bush should want.

Does my argument against appointing friends mean that Bush should never have appointed Gonzales to be Attorney General? I don’t think so. The Attorney General is part of the President’s Cabinet. The ability to get along with the President and do his bidding are important assets there. And the President had every right to take into consideration his knowledge that Gonzales has that ability for the Attorney General's position.

Sure, it’s true that friendship with the President and ability to get along with the President are very similar things. But they are not the same thing. Most of us have known someone who was very pleasant and easy to work with and yet with whom we did not share any kind of relationship that extended beyond the work we were doing together. Often they were potential friends, but for one reason or another it never happened. Similarly, most of us have had close friends with whom we just could not work without tempers flaring and misunderstandings occurring. A President may take into account his ability to work well with a potential Attorney General. It is therefore sensible for the Senate to give him wide latitude in making appointments to that office.

It’s worth pointing out that the only filibuster in Senate history over a judicial nomination prior to present times was over LBJ’s nomination of his long-time friend Abe Fortas as Chief Justice. (Fortas was already an Associate Justice on the Court appointed by LBJ.)

Fortas’ long-term friendship with LBJ was not the only reason for the bi-partisan filibuster against him. Some Senators were concerned about Fortas’ integrity. Others were concerned about what they regarded as a liberal judicial philosophy. But the group–24 Republicans and 19 Democrats–all considered Fortas’s close relationship to Johnson to be troubling and a reason not to accord Johnson the usual deference granted to Presidents in these matters. The leader of the opposition to Fortas was Senator Robert Griffin of Michigan–a moderate to liberal Republican, who explicitly argued that it is "highly unusual for a President to subject himself to the charge of cronyism with a nomination to the Supreme Court."

Alas, the good Senators turned out the be right to refuse to defer to LBJ’s judgment. Fortas’s integrity (or at least his ability to avoid the appearance of impropriety) left something to be desired. Fortas had been one of the founding partners of Arnold and Fortas (now Arnold & Porter) in Washington and was used to living quite well. When he was initially considering whether to accept the nomination as Associate Justice, he was concerned about the effect it would have on his income. Financier Louis Wolfson (later convicted of securities fraud) offered to pay him $20,000 for life in return for unspecified services. Fortas initially accepted, but later changed his mind. When this information was made public, however, it was enough to shock the nation (and rightly so in my opinion). Fortas became the first and only Supreme Court Justice to resign in disgrace.

No one questions Alberto Gonzales’ integrity. What they question is whether he is the kind of legal and constitutional heavyweight that is demanded by the office and which most of the other potential nominees on Bush's short list are. Let’s hope Bush doesn’t let his friendship with Gonzales cloud his judgment.