Will the President Nominate Gonzales to the Supreme Court?     7/13/2005

CWA's Chief Counsel Jan LaRue responds.

TO: CWA Constituents
FROM: Jan LaRue, Chief Counsel
RE: Alberto Gonzales as a potential nominee to the Supreme Court
DATE: July 13, 2005

Despite attempts by media to bait us into criticizing Alberto Gonzales as a potential Supreme Court nominee, CWA hasn’t done so. We praised Mr. Gonzales as White House counsel for his role in providing the President with the excellent slate of nominees to the circuit courts of appeal. We supported his nomination as Attorney General, and praised his commitment to make obscenity enforcement a priority of the Department of Justice.

We don’t think it's likely that President Bush will nominate him. It has nothing to do with Gonzales personally, and these concerns are shared by others.

First, as White House counsel, Gonzales has given the President legal advice and, as Attorney General, he is most likely directing the litigation strategy in the Department of Justice on several crucial cases that are or will likely be heard by the Supreme Court. This raises the issue of recusal if Gonzales is appointed to the Court. Recusal means having to remove himself from deciding a case if his impartiality is reasonably questioned. This creates the serious potential problem of a 4-4 split on the Court in each case, which would leave the ruling of the lower court in place. Some of the cases involve the President’s agenda and core issues for CWA, such as:

• Physician-assisted suicide: Gonzales v. Oregon (9th Circuit ruled that state law trumps federal Controlled Substance Act). Case will be heard in the coming term.
• Abortion: Ayotte v. Planned Parenthood of Northern New England (State is challenging a lower court decision striking down its law requiring parental notice for abortion). Case will be heard in the coming term.
• Religious liberty: Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (Can the federal government ban the use of hallucinogenic tea in a religious ceremony?). Case will be heard in the coming term.
• Department of Defense’s “Don’t Ask-Don’t Tell” policy: Rumsfeld v. Forum for Academic Rights (Lower court held that the Solomon Amendment, denying funds to law schools that discriminate against military recruiters, is unconstitutional). Case will be heard in the coming term.

• Abortion: Scheidler v. NOW (7th Circuit held that federal extortion law applies to pro-life protesters). Case will be heard in the coming term.
• Federal ban on partial-birth abortion: Stenberg v. Carhart (Supreme Court, including Justice O’Connor, voted 5-4 to strike down Nebraska’s ban in 2000. The 8th Circuit just affirmed a district court ruling striking down the federal ban based on Stenberg rationale.) Similar challenges are pending in the 2nd and 9th Circuits and will be appealed to the Supreme Court.

Second, the President is unlikely to change the Attorney General in a time of war. Nor does he need or want another contentious confirmation hearing for Gonzales’ replacement.

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