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The Loyalist, continued

Gonzales introduces President Bush
On Oct. 30, Gonzales introduces President Bush, who announced a new proposal for confirming nominees to the federal bench.

The words "first" and "Hispanic" cling to Gonzales in life and on the page. They are used in the typical summary of him: the first Hispanic White House counsel, the first Hispanic partner at his firm, a leading candidate to become the first Hispanic justice on the Supreme Court (though, depending on how one defines the term, Benjamin Cardozo, a Sephardic Jew of Portuguese descent who served on the high court from 1932 to 1938, may actually have been the first Hispanic justice). Throughout Gonzales' career, he has belonged to Hispanic organizations, serving as president of the Houston Hispanic Bar Association and chairman of the Republican National Hispanic Assembly of Harris County, Texas. In 1999, the Hispanic National Bar Association gave him the Latino Lawyer of the Year award.

His heritage is important to him and also important to a president who has emphasized including people of all backgrounds and ethnicities in his administration, Gonzales says. When the White House counsel wrote an op-ed in the Washington Post in September advocating for Miguel Estrada's ('86) confirmation to the U.S. Court of Appeals for the D.C. Circuit (the confirmation was stalled in committee last year), he noted that Estrada "is an inspiration to Hispanics and to all Americans." Many people do feel special pride in seeing someone who looks like them in positions of prominence, he says.

"It is true that, for some Americans, they couldn't care less that I am Hispanic, doing this job. What they care about is that the job gets done right," he said. "But I am always very mindful that for another segment of the population, there is a special pride that someone named Gonzales is advising the president of the United States on legal issues."

But he also is quick to note that there is no Hispanic way to judge a case or to do a job, and that, while it pleases Bush when a well-qualified person may also happen to be Hispanic or another minority, merit will always be the priority for the president. Gonzales agrees, and that's why he says he doesn't concern himself with debates on whether he got this far because of his heritage. It's what he has done with the opportunities that matters, he says.

Judging that, of course, may depend largely on what you think of what President Bush has done in office. Gonzales doesn't like to talk about the advice he's given to the president, but he has helped guide Bush through legal questions surrounding the war on terrorism, such as military tribunals and detaining suspects without counsel. Tribunals, Gonzales said, "would provide basic rights to terrorists, but they would be structured in a way which would ensure the continued protection of the national security of this country." And in every war this country has fought, he says, people have been detained without access to a lawyer, even if they are American citizens. "I think legally we are right, and that will be confirmed in the courts," said Gonzales. "[But] maybe we need to do a better job of educating the American public about what we are doing here and the need for that course of action."

Though his office tries to find ways to allow the president to do what he believes needs to be done to protect the country, there are times, Gonzales says, when he has to tell the president what he doesn't want to hear. An effective White House counsel is one who can say "no" to his boss. That has happened occasionally, particularly on questions of executive privilege. People have criticized the secrecy of this White House, but that charge is leveled against most administrations, he says. The White House has released most documents that Congress has requested, Gonzales says, and has reached agreement on releasing some disputed records, such as those detailing the administration's contacts with Enron. In addition, the president may want to turn over communications that, in the opinion of his counsel, should be privileged, and his counsel doesn't hesitate to advise him that he shouldn't. "My job is to protect the institution of the presidency, and so, in that case, my job is to make the president understand that 'by doing this, Mr. President, you'll weaken the institution of the presidency,'" said Gonzales. "This president has great respect for that institution, so when someone tells him that it weakens it, he considers that very, very seriously."

Gonzales also advises the president on the judiciary, an institution of government that he fears has been weakened by the Senate's failure to fill a number of vacancies. Indeed, by the end of November the Senate had confirmed only about half of Bush's circuit court nominees, while it confirmed a much higher percentage for recent presidents in their first two years in office. The dearth of confirmations and the long delays in hearings for many nominees are frustrating, he acknowledges. Particularly unfortunate, he says, was the failed 5th Circuit nomination last year of Priscilla Owen, with whom he served on the Supreme Court of Texas. (In January, she was renominated to the appeals court.) Her critics cited Gonzales' own words in an abortion case, in which he characterized Owen's interpretation of a statute as an "unconscionable act of judicial activism," as evidence of her unfitness for the court of appeals. But disagreement, he notes, should not mean disqualification, a point he made in a letter to the Senate Judiciary Committee.

Earlier last year, he cited the judicial issue as one key reason that the Republicans needed to take back the Senate in the fall elections. Before the Republican victory, in fact, came to pass, Bush and his counsel unveiled a proposal that would streamline the judicial confirmation process. The initiative calls for the Senate Judiciary Committee to hold a hearing within 90 days of receiving a nomination and for the full Senate to vote on each nominee within 180 days after the nomination is submitted. "All Americans would see a more dignified process and have their federal courts fully staffed to protect their rights and their liberties," Bush said. "And the vacancy crisis would be resolved once and for all."

At its core, the wrangling over judicial nominees exemplifies a fundamental disagreement on what makes a person qualified for the job, according to Gonzales. "That person should come to the bench with no personal agenda to follow," he said. "Certain Democrats on the Judiciary Committee believe that judges do come with a personal agenda. . . . [They] ask, 'What are your personal beliefs about an issue?' because they believe that that is going to impact your decision making as a judge. I think that that is wholly inappropriate; I think it is wrong for a judge to pursue a personal agenda, and their own personal beliefs, in my judgment, are wholly irrelevant to how they should do their job as a judge."

He believed the same when he was a judge. And he has been criticized for it by people in his own party, as in the abortion case in which he differed from Owen. In that opinion, he ruled with the majority to overturn a lower court ruling, thereby allowing a minor to have an abortion without parental consent. In doing so, he was following the law, not his own values, he wrote: "While the ramifications of such a law and the results of the Court's decision 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."

That deference to legislative intent pervaded Gonzales' time on the bench, according to Supreme Court of Texas Chief Justice Thomas Phillips ' 74. For example, Gonzales' opinion in another case, Fitzgerald v. Advanced Spine Fixation Systems, reads as a "paean to strict statutory construction," he said.

Gonzales' decisions "show an equal disdain for activism, regardless of what side of the political spectrum it comes from," Phillips said. "I never saw anything inconsistent on that, and I never had any sense that he was casting any votes based on whether somebody--a former employee, a contributor, a friend who was governor or anybody else--would approve or disapprove."

On the court, Gonzales was soft-spoken, not confrontational, said Phillips: "He tried to prevail through reason rather than intimidation." Perhaps it is a testimony to that style that the case Phillips cites to praise his former colleague is one in which he took the opposite side.

* * *

Kenneth Starr's book about the Rehnquist court, "First Among Equals," lies on a shelf outside Gonzales' office on the day of the interview. Whether Gonzales will be a member of that court is a topic of much speculation. But of course no one who has any say in the matter, least of all Gonzales himself, is talking about it. Viet Dinh, who helps recommend judges to the president, was asked what he would think of a candidate for the Supreme Court with Judge Gonzales' credentials. He laughed and laughed at the question, and he didn't stop laughing until he said goodbye.

Such talk is not a distraction to Gonzales at all, he says. There is nothing he can do about it, and he is a person who focuses on what he can do. But he does worry about something, on top of the worries inherent in his current role. He wonders what he will do next after his job in the White House is done, what will be as exciting and satisfying. After all, how many once-in-a-lifetime opportunities can one person have?

See also:
The Role of a Counsel

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