Right target, wrong backlash

As the religious right searches for hints about Gonzales and abortion, they ignore torture

July 15, 2005

Back in June, before Sandra Day O'Conner announced her retirement from the Supreme Court, the pro-Bush group ironically named "Progress for America" began its $18-million ad campaign in favor of whoever Bush nominates, with an ad accusing Democrats and liberals of being about to jump the gun and start criticizing anybody who Bush nominates. A strange gambit, for sure, and it failed: as soon as O'Conner made her announcement, conservative groups and commentators began to pile on one prospective nominee, Alberto Gonzales.

Tony Perkins, the president of the Family Research Council and the organizer of "Justice Sunday," said, "I think what you would hear would be [what] sounds like slashing the tires of the conservative movement" if Gonzales were nominated. Joseph Farah wrote, "Might as well let the American Civil Liberties Union name the next justice." Phyllis Schlafly, Paul Weyrich, Gary Bauer, Focus on the Family and more all joined the preemptive pile-on.

It was only a few months ago that a bitterly divided Senate narrowly confirmed Gonzales as Bush's second Attorney General, but in that battle, we were the ones in opposition and conservatives were fervently behind Bush, as ever. Today, as the Reverend Flip Benham of Operation Save America put it, Gonzales is supposed to "placate" Democrats. We don't buy it -- we're still opposed to Gonzales being put in charge of anything relating to "justice," and for the same reasons.

MYTH: Alberto Gonzales is no a conservative; he's a nominee liberals should favor

When Ronald Reagan nominated Arizona's Sandra Day O'Connor to the Supreme Court in 1981, conservatives were nervous because little was known about her. Mr. Reagan assured religious conservatives they had nothing to fear. Mr. Reagan told Rev. Jerry Falwell he had spoken to her (about abortion, the main concern of religious conservatives) and found her to be "OK" on that issue. ... I was right and Mr. Reagan was wrong. Conservatives were disappointed. Justice O'Connor has been the key vote upholding the extraconstitutional ruling known as Roe v. Wade. ... This history is what makes conservatives nervous about the choice President George W. Bush will make, especially when he speaks of ... Alberto Gonzalez. ...

Conservatives say they have learned from previous court battles and won't be fooled again. They will look beyond assurances a nominee is "OK" to the substance of that nominee's record and philosophy. Nothing but delivery on the president's promise will satisfy them. This is the big one, the main event. If the president does not nominate someone who measures up to his often stated view of the court and the Constitution, he can forget about conservative support for anything he wants to do during the rest of his term. (Cal Thomas, "Supreme lessons," Washington Times, 7/6/05)

Gonzalez has wide appeal as an ideological moderate who also carries the possibility of endearing the Republicans to the Hispanic voting populace. Just one thing: Gonzalez is anything but a cultural conservative and therefore ill-suited to fight the culture war that is currently eroding family values and our traditional way of life. (Armstrong Williams, "Retirement will change direction of court for years," Town Hall, 7/11/05)

That the rumor mill on potential nominees has even mentioned Alberto Gonzales, who would uphold both Roe and Grutter [diversity a factor in college admissions--Ed.] (and probably would have parted with O'Connor on Gratz), is deeply troubling, and would reek of unprincipled cronyism. (John Tabin, "O'Conner's ups and downs," American Spectator, 7/6/05)

Gonzales would not exactly be another O'Connor, but he is still considered a disaster by Republican conservatives. He also is the best Democrats can hope for. (Robert Novak, "Bush is biggest obstacle to conservative court," Chicago Sun-Times, 7/7/05)

REALITY

Let's look at Gonzales "social conservative" credentials. As Attorney General, he has been extraordinarily popular with the "family values" crowd, exceeding even John Ashcroft's zeal in prosecuting obscenity.

I just met with Attorney General Gonzales and right now he is launching a major effort to prosecute the porn industry. He intends to smash these criminal enterprises on the Internet and elsewhere with a special new obscenity strike force. That is the only way to handle hardcore pornographers! (Tony Perkins, Family Research Council, 6/17/05)

Parents across the nation empathize with General [sic] and Mrs. Gonzales in an age when children have access to obscene material on the Internet, their email inbox, on cable and satellite TV, in book and video stores, in hotels and motels and even in public libraries. Most of that material is illegal and we think General Gonzales is dead serious in his intention to move aggressively against it. (Family Research Council, 5/1/05)

When it comes to free speech, Gonzales places a premium on First Amendment rights, but he says that certain communications do not deserve the same protection. He is lending the full power of the Justice Department to prosecute adult obscenity -- a crackdown on par with the war on terror and violent crime. ("Patriot Games: Gonzales defends anti-terror law," CBN, 4/6/05)

Pro-family advocates are praising the work of the Department of Justice for busting a major pornography distributor. One group's spokesman commends the actions of the new head of the DOJ, Attorney General Roberto Gonzales, for doing exactly what he said he was going to do. ... "A couple of weeks ago, Attorney General Gonzales said to the American people that he would begin a severe crackdown on the issue of the distribution of obscenity," [Randy Sharp of the American Family Association] says. "This indictment against Wedelstedt simply reinforces what he said." ("Family activists applaud DOJ for indictment of long-time porn peddler," Agape Press, 4/18/05)

Yes, that's the same Tony Perkins who predicted what "sounds like slashing the tires of the conservative movement" if Gonzales were nominated -- last month, he had nothing but praise for the man he calls "General Gonzales." (Presumably a "general" in the culture war.)

How about the death penalty, another favorite of social conservatives? As an official lawyer for then-Governor George Bush from 1994-1997, Gonzales advised Bush on clemency appeals during the governor's record-breaking season of executions.

Take the case of Terry Washington, a thirty-three-year-old mentally retarded man with the communications skills of a seven-year-old executed in 1997. Gonzales's clemency memo, according to Berlow, did not even mention his mental retardation, or his lawyer's failure to call, at trial, for the testimony of a mental health expert on this issue. Nor did it mention that the jury never heard about Washington's history of child abuse... Execution of the mentally retarded was already under a shadow at that point ...

But according to Berlow, Gonzales went even further: "I have found no evidence that Gonzales ever sent Bush a clemency petition - or any document," Berlow writes, "that summarized in a concise and coherent fashion a condemned defendant's best argument against execution in a case involving serious questions of innocence...." This suggest that even the crucial issue of guilt versus innocence was frequently ignored.

What did Gonzales's memos include, then? They focused heavily on repeating the purported gruesome details of the crime. By doing so, they no doubt made it easier for the governor to feel he was doing the right thing by denying clemency. (John Dean)

Sounds more and more like he should fit the bill of "social conservative." If these credentials weren't enough, he also happens to have been one of the closest and most loyal apparatchiks to conservative hero George Bush, from governor's lawyer and a brief tenure on the Texas Supreme Court to White House counsel during the War on Terror and now Attorney General. He has even been helping to select the scores of ultraconservative lower-court judges appointed by Bush.

But despite all this, social conservative activists don't consider him part of their movement. Instead, it all comes down to abortion, as it always does. It's not that Gonzales is pro-choice -- he's certainly never suggested anything remotely like that. But he just hasn't proven himself hardline enough.

Social conservatives cite one case he heard on the Texas Supreme Court involving the state's parental notification law. But in his decision, Gonzales did not advance any notion of reproductive rights. Instead, he observed that the Texas law in question contained exceptions, and reserved the job of removing them to the legislature.

As the Court demonstrates, the Legislature certainly could have written section 33.033(i) to make it harder to bypass a parent's right to be involved in decisions affecting their daughters. But it did not. Likewise, parts of the statute's legislative history directly contradict the suggestion that the Legislature intended bypasses to be very rare. Thus, to construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism. As a judge, I hold the rights of parents to protect and guide the education, safety, health, and development of their children as one of the most important rights in our society. But I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so.

While the ramifications of such a law and the results of the Court's decision here may be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view on the decisions of the Legislature. ... This decision demonstrates the Court's determination to see to it that we discharge our responsibilities as judges, and that personal ideology is subordinated to the public will that is reflected in the words of the Parental Notification Act (In re Jane Doe (2000))

Reading his decision, especially his views of the dissent (signed by, if you recall, Priscilla Owen), it sounds like he's using all the right code words. Leave it to the legislature -- "judicial activism" -- "without imposing my moral view" -- "personal ideology is subordinated to the public will." And indeed, since the decision did not strike down any law as unconstitutional, he is inviting the state legislature to add yet more restrictions, since the law is "personally troubling" to him.

But because he didn't simply follow the mental process of "abortion bad -- not allowed," he is marked as a pariah, little better than NARAL to these activists.

The only other scrap found by the social conservatives is this exchange in 2003, as related by C.J. Willkie:

Q: Judge Gonzales, we're hearing conflicting reports about your position on abortion. Can you tell us where you stand?

A: As a judge, I have to make judgments in conformity with the laws of our nation.

Q: Would you say that, regarding Roe vs. Wade, stare decisis would be governing here? (Note, stare decisis means that he would continue to uphold that decision because he would regard it as a binding precedent.)

A: Yes.

In response to this, there was a loud, spontaneous murmur across the entire auditorium of an "oooooh." Rising above that were clearly audible "boos."

But Gonzales was speaking "as a judge" -- that is, as a judge on the Texas court, not hypothetically if he were on the Supreme Court. As Vikram Amar and Akhil Amar note in their discussion of confirmation questioning, "past decisions may not tell us much, and may indeed be misleading in what they do suggest."

For one thing, stare decisis -- the principle that precedent should generally be followed, and that precedent from higher courts is binding on judges lower down in the pyramid -- limits all lower courts, federal and state. This principle may force individual judges to reach decisions and embrace reasoning deeply in conflict with the judge's own views. Ironically, the willingness to reach such a decision, or employ such reasoning, based on precedent despite the judge's personal views may in fact illustrate a virtue, even as it is condemned during the confirmation process as a flaw.

This is similar to the position of moralist icon John Ashcroft, Gonzales' predecessor at the Department of Justice. He said he was opposed to it, but that as Attorney General he must treat it as "settled law."

And in fact, in the same account from C.J. Willkie, Gonzales observed that the Supreme Court can in fact make the determination: "The Constitution is what the Supreme Court says it is." Bizarrely, these social conservatives read that statement to mean the opposite, that as a Justice he would not feel empowered to decide on Roe.

If this is all it takes to be cast aside as "soft on abortion" by the right-wing activists, then it is clear that the only thing that would satisfy them is a nominee who has somehow unambiguously proven how he or she will decide on Roe as a future justice. Not only is this a litmus test, it is asking for prejudice. So much for the quaint notion of a judiciary independent of political leverage.

And speaking of "quaint" notions, that's exactly how Gonzales described a little thing called the Geneva Conventions in his infamous memo on torture as legal counsel to the president. Since he has never been an academic or written any books about how he sees the law, this is about as explicit an example of his legal philosophy as there is: advice to Bush on the powers of the president, in particular the power to hold detainees outside any law.

But the consequences of this thought experiment were anything but academic. The executive's policy on detainee status and interrogation set the stage for the abuses at Guantanamo, Abu Ghraib, Bagram and elsewhere -- from abducting and holding bystanders for years to torture and murder, outsourced and American-made.

Of all the foul smells emitted by this presidency, torture -- torture -- is the most rotten, and the most likely to stay even after we leave Iraq. We opposed Alberto Gonzales as Attorney General, and we will always oppose him, as he embodies more than anyone else the lowest America can sink.