Commentary

Bush’s Tortuous Choice

Is Attorney General Alberto Gonzales now the front-runner to replace retiring Justice Sandra Day O’Connor on the Supreme Court? That’s what some concluded when President Bush jumped to his defense recently, urging conservatives to “tone down” the anti-Gonzales rhetoric. The same day, Karl Rove’s inadvertent use of the phrase “Justice Gonzales” at a press conference provoked laughter and speculation.

If Gonzales gets the nod, conservative activists will lead the fight against him, believing him to be “soft” on abortion. But Gonzales hasn’t built much of a public record on that issue, and the conservative case against him is based largely on speculation. There are much better reasons to oppose Gonzales’s elevation, reasons based squarely on his public record as White House Counsel.

As usual, both sides of the Court battle are focused myopically on the abortion issue and missing the larger picture. It’s tough to discern Gonzales’s position on Roe v. Wade from the record we have, which consists of a series of decisions interpreting Texas’s parental notification statute. Though in one case he voted to allow an abortion without notification under the “judicial bypass” provision of the law, Gonzales defended himself on the quintessentially conservative grounds that this was an issue of statutory construction, and even an ardently pro-life judge shouldn’t be in the business of drawing up a different statute than the one the legislature provided.

Less defensible by far was the advice Gonzales gave as White House Counsel in matters of war, peace and executive power. In the run-up to the Iraq War, under Gonzales’s direction, the White House Counsel’s office advanced the argument that the president’s powers include the power to decide, unilaterally, the question of war or peace — to launch the Iraq war without so much as a by-your-leave to Congress. That would have been news to James Madison, who wrote in 1793 that “In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department… the trust and the temptation would be too great for any one man.”

But Gonzales also had a fallback theory: the president didn’t need congressional authorization for this war with Iraq, because a previous president (George W. Bush’s father) secured authorization for the previous war with Iraq, 11 years earlier. Gonzales argued that the 1991 congressional resolution for the Persian Gulf War, drafted to authorize expulsion of Iraqi forces from Kuwait, still had enough life left in it to authorize a new war aimed at taking Baghdad.

That argument might pass muster for a plaintiff’s lawyer zealously pressing his client’s interest. But to give such advice to the president is to urge him to violate his oath to uphold the Constitution.

Gonzales’s theory of limitless executive power resurfaced in what have come to be known as the “torture memos.” An August 2002 memo prepared under Gonzales’s direction argues that the 1994 statute Congress passed prohibiting torture infringes on the president’s constitutional power as commander in chief: “Congress can no more interfere with the president’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.” If the president deemed torture necessary to achieving America’s war aims, the memo argued, then Congress would be powerless to restrain him. It’s a theory that echoes Richard Nixon’s infamous statement in a 1977 interview with David Frost: “Well, when the President does it, that means it is not illegal.” Asked about the memos in his confirmation hearings for attorney general last January, Gonzales refused to recant his view that the president can ignore the law.

It’s not clear what we can glean from Alberto Gonzales’s tenure on the Texas Supreme Court. But his record as a top administration official is clear: he is altogether too much a company man, all too willing to waive constitutional limits in support of radical expansions of executive power. He should not be allowed to serve on a Court that will in the future be called upon to check that power.

Gene Healy is senior editor at the Cato Institute and editor of the new book Go Directly to Jail: The Criminalization of Almost Everything.