Bush's Speedy Gonzales Appointment

I suspect many of my conservative compadres will be up in arms over Alberto Gonzales' fast appointment as Attorney General in the wake of John Ashcroft's resignation. I, on the other hand, think the appointment may be a good thing.

Though Gonzales served on the Texas Supreme Court after being appointed by Governor George W. Bush, he doesn't have a long list of rulings to his credit by which one can judge his judicial philosophy. He's also been tight-lipped when asked about it.

But one particular Gonzales ruling has stirred the ire of conservatives. In a confusing parental notification/abortion case, Gonzales joined the majority in ruling that a lower court erred on its basis for denying a 17-year-old girl a judicial waver that would have allowed her to get an abortion without the consent of her parents, and ordered them to rehear her case.

Though any pro-lifer is understandably concerned about such a ruling, it may not be the "pro-abortion" decision it appears to be. Though details of the case are hard to come by, no less a liberal wacko than Molly Ivins thinks that Gonzales' ruling was no indication of a "moderate" stance--which she would clearly prefer. In a column penned back in 2000, Ivins wrote:

Bush's appointees to the court - James A. Baker, Greg Abbott, Deborah Hankinson and Alberto Gonzalez [sic] - have something of a reputation for being more moderate than their elected Republican colleagues, many of whom are favorites of the right-to-life movement. The reputation may be a misimpression. It is based largely on the court's decisions in parental notification cases. Three of Bush's appointees were part of a 6-3 majority giving a teen-age girl a second hearing on ending her pregnancy. Under the state's parental notification law, a girl can seek a "judicial bypass" of the law's requirement that her parents be notified of an abortion. The girl must convince a judge that she is mature enough to make the decision herself or that notifying her parents would be harmful.

One elected Republican on the court, Nathan Hecht, accused the majority of "deep-seated ideology that minors should have the right to an abortion without notice to their parents, free of any significant restriction." However, there are no signs that the Bush appointees favor abortion rights. The decisions can be read as classic strict constructionism, since the legislature, to put it mildly, did not write the law with any precision. It's also pretty clear that this court thinks judicial bypass cases are a waste of its time.
[Emphasis added]

While not defending Gonzales' vote (especially since I'm lacking much pertinent information), I've said all along that the solution to the current runaway judiciary is not remedial conservative judicial activism, but rather a return to the legislature making the laws and the judiciary applying them. Our system was designed for the people to be able to make their laws, rather than having an unelected judiciary make laws for them.

But a restrained judiciary is not a panacea for our problems. To my mind, a restrained judiciary merely returns many of these questions back to the people. At that point, conservatives will still have to do the hard work of convincing the majority of their position through the political process, which is the way the system was designed to work in the first place. A conservative judiciary will not suddenly make all abortion nationally illegal. It will instead return the question to the people, where it belongs.

From a conservative standpoint, Gonzales' job in the Texas case was not to simply rewrite the state law in a way more to his own personal liking. It was to apply the duly passed law of the people. I'm in no position to decide if he did that correctly or not, but a vote with a result that conservatives don't like is not necessarily de facto evidence of liberalism or activism.

But even granting legitimate conservative concerns over Gonzales (and they are legitimate, when one considers, say, David Souter), here's why I think the Attorney General appointment is a good thing: it takes Gonzalez off the short list for the Supreme Court. Though the job of Attorney General is an important one, it does not have the long-term significance of Supreme Court rulings. The A.G. is essentially a cop and a prosecutor. It's not a lawmaking position. There was no question Bush, for whatever reason, was going to give him a big appointment. If Gonzales' conservatism is shaky, he won't be able to do significant damage from the Justice Department. Everything in his past demonstrates that he will prosecute the laws that are there and that he'll be effective in organizing domestic counterterrorism operations.

Meanwhile, he's off the Supreme Court list, and if Bush's other judicial nominations are any indication, we can expect a solid, unshakeable conservative in the mold of Thomas or Scalia to be appointed. Gonzalez will be a fine A.G., and frankly I'll sleep better with his name scratched off the Supreme Court list. The rest of the list looks outstanding.