Tuesday, June 28, 2005
Based on my email, there appears to be a little bit of confusion as to what my opinion is on Gonzales. I'll try to make it plainer.
First, I think that pro-lifers would probably be right to feel betrayed by a Gonzales nomination, and that therefore such a nomination is a huge risk for Bush to take. He'd be asking his base to support him out of loyalty, after he prized loyalty to his loyal steward above loyalty to them. That's a tough one to swallow.
Second, I think Bush, to the extent that he promised to appoint Justices who could be confidently expected to vote to overturn Roe, promised too much. It is certainly appropriate for prospective Justices to opine on whether Roe was well-decided, but that's not actually the same thing as opining on whether or in what terms it should be overturned, as the latter amounts to prejudgement which I think is categorically inappropriate. This may sound like nit-picking (does anyone doubt that Antonin Scalia would vote to overturn Roe?) but I don't think it is. These sorts of fine distinctions really do matter when you're talking about the integrity of the law.
For that very reason, I think that opposing Gonzales simply because he is not a clear anti-Roe vote is a bridge too far, as a matter of principle, even though it is probably right as a matter of politics. To put it plainly: if I were an advisor to the President, I would urge against nominating Gonzales. If I were a Senator, and Gonzales were nominated, I would likely vote to confirm.
Third, apart from Roe the other Gonzales red flag is his support for affirmative action. I think many affirmative action policies are poorly constructed, and that the entire concept may be both pointless and counterproductive. (I certainly feel that way about gender-based affirmative action.) But no originalist can argue with a straight face that the Fourteenth Amendment outlaws affirmative action. The Fourteenth Amendment does not even plainly outlaw segregation (as evidened by the record of debate on said amendment and the views of many of the ratifiers)! So I find it bizarre that supposed partisans of an originalist hermeneutic object to Gonzales on these grounds. For myself, I'd far rather see a general retreat from the extremes of equal-protection jurisprudence and let affirmative action get debated in the political arena than increase the scope of equal-protection even further, and wind up in the same situation as we currently are with voting rights and redistricting (where, if a district is either too black or not black enough, Justice O'Connor may decide that it violates the Fourteenth Amendment).
My advice to the President is the same as it was last time I opined on this subject a year or two ago: if and when Rhenquist retires, nominate Clarence Thomas for Chief and Michael McConnell for Associate Justice. Thomas is not really an originalist; he's heavily influenced by natural-law thought that, frankly, I think is more in-tune with the President's own views (such as they are) on the Constitution, as well as with those of his strongest supporters. And McConnell is both respected by a broad political spectrum and supported by Christian conservative groups. I think such a strategy would give Bush the best shot at victory while simultaneously making his base very happy, and would add a Justice to the Court (McConnell) who would be a real credit to the institution. And victory begets victory; if he wins his first fight over a Supreme Court nominee, subsequent fights get easier to win.