BRIAR PATCH TIME :

Friend of the Court : ALBERTO GONZALES'S HIGH-WIRE ACT (Ryan Lizza,05.16.02, New Republic)

Everything in Gonzales's record prior to his arrival in Washington suggests he is a moderate jurist uncomfortable and unfamiliar with the kind of conservative judicial activism identified with Justices Antonin Scalia and Clarence Thomas. And that worries Washington conservatives who fear a replay of 1990, when Bush pere nominated David Souter--another state supreme court judge with an ambiguous record--to the high court, only to have him become a stalwart of its liberal minority.

But if "No More Souters!" has become a rallying cry among conservatives, Democrats are equally determined not to allow another Scalia, an Italian-American right-winger who won confirmation in part because Democrats didn't want to be seen as standing in the way of an ethnic milestone. And if Gonzales's record in Texas causes him problems on the right, his conservative stances as White House counsel--on judicial picks, on terrorism, on administration secrecy--raise red flags for Senate Democrats and their allies on the left. Alberto Gonzales, in other words, has the misfortune to be a potential Supreme Court pick at a time when the window of political acceptability--between being too liberal to be nominated and too conservative to be confirmed--is narrower than ever before. Michael Farris, a home-schooling advocate and influential social conservative, summarizes the dilemma: "Until Judge Gonzales starts saying some things publicly like, `I believe the president is right both politically and constitutionally on abortion, and I'm happy to defend him,' he's not going to be rehabilitated. The problem is that if you start doing that you become unacceptable to the left." No wonder Gonzales addressed the CNP. And no wonder he didn't win them over.

[M]any on the right would prefer to see Bush choose someone like Miguel Estrada, the ideologically committed right-winger currently up for the D.C. Circuit. Estrada, they figure, could be confirmed for the same reason as Gonzales: Democrats wouldn't dare torpedo the first Hispanic nominee. And he'd be a reliable Thomas-Scalia ally on the Court.

But Estrada doesn't have Gonzales's close relationship to Bush--"more like a brother than a lawyer," says a friend of both men. And most close Bush-watchers assume that the president, if given his druthers, favors loyalty over ideological purity. Unlike Gonzales, Estrada has yet to spend time on the bench--a lack of experience that could make confirmation more difficult. Moreover, Gonzales has one other advantage over Estrada and other potential rivals: As White House counsel, he'll be the one leading the search for a new justice when a vacancy occurs. And the last time Bush put someone else in charge of this sort of hunt, Dick Cheney ended up picking himself.

C'mon, Mr. Lizza, get real--if Bush tabs Estrada the Democrats would have to be insane to oppose him. Are they really going to turn a Republican president who's already making inroads on one of their core constituencies into the very public defender of an embattled Latino nominee? God, I hope so.

Bush should hold off on Gonzales for when he needs an easy confirmation. Reagan's big mistake was in not putting Bork up the first time a spot opened. Bork would still have been borked, but the GOP controlled the Senate and he would have made it through. Then for the next openings you would have had O'Connor, unassailable because female, and Scalia, unassailable because Italian. All of which would have spared us the painful schizophrenia of Justice Anthony Kennedy.

Posted by Orrin Judd at May 17, 2002 12:45 PM