Is “Al Gonzales” Spanish For “Stealth Liberal”?
Is "Al Gonzales" Spanish for "stealth liberal?" Conservative activists think so, but their campaign against the likely Supreme Court nominee is a waste of time. In George W. Bush's world, loyalty trumps ideologyand no one has been more loyal than his San Antonio-born consigliere.
IN THE FALL OF 1996, George W. Bush, 21 months into his first term as governor, made a surprise decision: He would show up for Travis County jury duty. He made a very public appearance at the jury screening, telling reporters, “I’m just an average guy showing up for jury duty.” When he arrived at the county courthouse a week later for jury selection for a trial, he schmoozed with his fellow prospective jurors outside the courtroom, asserting to reporters his belief that jury duty was everyone’s responsibility.
But while Bush held forth in the corridor, a meeting was taking place inside the court that would make certain that the governor would never be impaneled. Back in the judge’s chambers, Alberto R. “Al” Gonzales, the governor’s quiet, dapper general counsel and one of his closest advisers, was making a forceful case that his client could not be a juror. Bush had the power to pardon defendants, Gonzales argued, and thus should not vote on their innocence or guilt at trial.
As Gonzales presented his argument, neither the judge nor the attorneys knew quite what to do, according to defense attorney David Wahlberg. “There was nothing in the criminal code to guide us here,” he says. “As far as anyone could remember, a sitting governor had never been called to jury duty before.” Finally, Wahlberg agreed to accommodate Gonzales by removing Bush from the jury. At the time, newspapers reported that Bush was excused as part of a routine defense counsel’s strike, but Wahlberg says that’s not what happened. “It was very clearly at Gonzales’ behest,” he says, adding, with grudging respect, that Gonzales was “professional, well prepared, and persuasive. And he snookered all of us. He approached us informally—and at the last minute—with an argument that I feel was disingenuous at best.”
Why, after Bush had so publicly declared his willingness to serve, did Gonzales move so deliberately to get him off? The answer came four years later. The week before the 2000 presidential election, the story broke that Bush had been convicted in 1976 of driving while intoxicated. As it turned out, the 1996 trial also involved a person charged with driving while intoxicated, which meant that Bush would almost certainly have been asked under oath if he himself had ever been convicted of drunken driving. Gonzales’ intervention meant that Bush would not have to admit his own conviction.
Today the man who fixed George W. Bush’s jury duty is Bush’s White House counsel, one of the most influential lawyers in the country. Given the Bush family’s Mafia-like view of loyalty and trust, it’s not surprising that Gonzales’ service and steadfast devotion have resulted in a meteoric career trajectory—eight years from private practice to the White House—propelled by a series of Bush appointments, which included Texas Secretary of State and Texas Supreme Court justice. He may soon get an even more exclusive post: The 47-year-old is viewed by many as the odds-on favorite to be the next Supreme Court justice of the United States. If that happens, he will be the first Hispanic on the court in American history.
In Washington political circles, where the buzz is that two Supreme Court justices—Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor—may resign this year, the focus is squarely on Gonzales. The handicapping goes like this: Since Rehnquist and O’Connor are Republican appointees, they are more likely to resign under a Republican president in a nonelection year. Though O’Connor, 73, is female, and the 78-year-old Rehnquist putatively to the right of Gonzales, the theory is that Gonzales’ intimate eight-year relationship with Bush—and his obvious appeal to Hispanic voters—easily trumps the president’s need to appoint a woman or a hard-line conservative.
To say that Gonzales is close to Bush understates their relationship. To Bush, he is not only friend, consigliere, and confidant. He is also a potent symbol of American opportunity. Gonzales is a flesh-and-blood Horatio Alger story, the son of dirt-poor migrant farmworkers who clawed his way up from poverty to attend Harvard Law School and become the first minority partner at Vinson and Elkins, one of Texas’ leading law firms. “Al represented the vision that the governor had for the future of Texas,” says Vance McMahan, Bush’s policy chief when he was govenor. “He was very proud of Al.” In his autobiography, A Charge to Keep, Bush gives more ink to Gonzales than to his legendary Iron Triangle of advisers—Karen Hughes, Karl Rove, and Joe Allbaugh—combined. He wept openly at Gonzales’ swearing-in ceremony as a Texas Supreme Court justice. In his second inaugural address in 1999, he devoted an astonishing 662 words to the life and accomplishments of his recently appointed justice, calling him a “great friend” and “a wise and trusted adviser whose counsel I have sought many, many times in the past.”
There is perhaps no better example of Gonzales’ closeness with Bush than his artful intervention in the DWI trial. Though Bush’s own conviction was a deep, dark secret in those days, Gonzales had been trusted with it. “I knew about his Operating Under the Influence arrest in Maine beforehand,” Gonzales says during a telephone interview from his new White House office, which took nearly a month to set up because of his war-related legal duties. “We didn’t know what the case was going to be about. It was only after we arrived that day at the courthouse that we came to know that it was a DWI case. Anticipating that that might happen, we had thought about what we would do, and obviously the governor was there to serve on jury duty and he was going to answer truthfully any question asked of him.”
Gonzales’ job was to make sure that did not happen. “Before the hearing, I went up to the defense lawyer,” he says, “and I mentioned to him that there might be an inherent conflict of interest in having the governor serve. But the defense attorney told me that he had already thought about the possible conflict and that he was going to object to having the governor serve as a juror.” Wahlberg acknowledges that he was thinking about striking Bush because Bush’s remarks to the press had suggested that the governor might be a “hang ’em high juror.” In any case, Gonzales made his argument and helped save his client from an embarrassing setback.
It’s precisely this kind of loyalty that makes Washington insiders take Gonzales’ potential Supreme Court appointment so seriously, and in the capital blabocracy he has already become a sort of ideological punching bag. Critics on the left point to his pro-business rulings during his 23-month term on the Texas Supreme Court and his authorship of Bush’s draconian 2001 executive order denying Taliban soldiers Geneva Convention protections as evidence that he is too conservative. Conservatives say that Gonzales’ tolerant views on affirmative action and what they consider an abortion-friendly judicial ruling during his tenure on the Texas Supreme Court show that he is too liberal. Many are deeply suspicious that he may turn out to be like George H. W. Bush’s Supreme Court appointee David Souter, a justice the elder Bush believed to be conservative but who has in fact ruled consistently with the court’s liberal faction. (“‘Al Gonzales’ is Spanish for ‘David Souter'” went a running joke at a recent Federalist Society convention.) On a court that is currently split 5-4 over Roe v. Wade, a single judicial vote carries potentially enormous impact, and politically and judicially speaking, Gonzales is something of a mystery.
Not that it’s really a problem. Gonzales is fundamentally an inside player—the guy who took care of the jury duty problem—and critics realize that his unwavering allegiance may be enough to make Bush overlook any ideological concerns. And so now the many, many constituencies who have a stake in the high court’s rulings and who know little about this man are starting to ask: Who is Al Gonzales?
HE IS, FIRST AND FOREMOST, a Texan whose parents picked crops for a living. His father, Pablo, had a second-grade education; his mother, Maria, finished the fifth grade. They met in their teens when they were both migrant workers. Gonzales was born in San Antonio in 1955. “When they started raising a family, my father quit doing farmwork and got into construction and then settled down in Houston, where I was raised,” says Gonzales, in a soft, measured, Texas-inflected voice. While his father worked, his mother raised eight children in a two-bedroom house. (His father died in an accident at a rice mill when Al was 26.) When he was 12, Gonzales helped support his family by selling soft drinks at Rice Stadium, where he dreamed of one day becoming a student. At MacArthur High in the Aldine school district, Gonzales was a good student and a gifted athlete: He was an all-district football player at strong safety and played short stop and center field on the baseball team.
When he graduated, in 1973, he did not go to college. “MacArthur is a fine school,” says Gonzales, “but a lot of blue-collar families went there, and there was not the same emphasis from counselors on going to college. My parents were just proud of the fact that I had finished high school.” Instead, inspired by the military career of a friend’s father, Gonzales joined the Air Force and was stationed for two years at Fort Yukon, in Alaska. There he met two Air Force Academy graduates who motivated him to seek an appointment to the academy. He spent two undergraduate years there, where he became interested in a career in government and politics. He transferred to Rice University, attended Harvard Law, where he graduated in 1982, then got a job in the business, real estate, and energy group at Vinson and Elkins, where he spent the next twelve and a half years.
V&E was a nice place to roost. It got even nicer, financially speaking, when Gonzales was named partner in 1990. “He was the kind of person you wanted to see get ahead,” says James W. McCartney, who was on V&E’s management committee when Gonzales became the firm’s first minority partner. “He worked hard and had good writing and analytical skills.” His elevation to partner at such an important law firm was seen as a landmark by the Hispanic community; Texas attorney general-elect Dan Morales and Texas Supreme Court justice Raul Gonzalez both attended the party celebrating the promotion.
But real estate law—”dirt and deals”—held only part of his attention. He became active in politics. “In his mind, the Republican party was where he wanted to be,” says longtime friend Roland Garcia, a partner at Locke, Liddell, and Sapp who worked with Gonzales at V&E. “Back before it was popular to be a Hispanic Republican, before Republicans were even courting Hispanics.” Gonzales became president of the Hispanic Bar Association of Houston and was active in a number of charities and civic organizations, including the Association for the Advancement of Mexican Americans and Catholic Charities of Houston. “From very early on, Al lived the life of a compassionate conservative,” says Garcia, who encouraged Gonzales to run for the board of directors of the State Bar of Texas. Gonzales ran and won and through Garcia met State Bar president Harriet Miers. As it happened—and this was the turn of fate that would determine the course of Gonzales’ life from then onward—Miers was also George W. Bush’s personal lawyer. After being elected governor, Bush solicited her opinion of Gonzales as a candidate for general counsel, whose job it is to render opinions on legislation, government ethics, pardons, and clemencies. Miers recommended Gonzales.
Gonzales quickly established himself in the governor’s office as a sort of lawyer’s lawyer: thorough, cautious, self-effacing, and deeply loyal to Bush. “He was extremely discreet,” says former state senator David Sibley. “You’d go by Al’s office and say, ‘Boy, there was quite a stir in so and so’s office yesterday.’ This is the way we all gather information around the Capitol. But with Al you’d get nothing back. Maybe an ‘Um’ or a ‘Really?’ I never had any idea what he was telling Bush or what he knew.” He was, by all accounts, a genuinely nice person: a good listener and a boss who was admired and well liked by his staff, whom he sometimes advised on their career choices.
Bush took an immediate liking to his soft-spoken new counsel. Gonzales also had a talent for presenting information in bite-size nuggets to his boss, a man with a notoriously short attention span. “The two had a warm relationship,” says former Bush adviser McMahan. “One of the reasons the governor liked Al was that when he presented something, he was very concise and to the point and at the end he made a recommendation.” Gonzales was almost preternaturally calm, say former colleagues, never raising his voice, never showing anger. “When he met with the governor, it was all business,” says Stuart Bowen, whom Gonzales hired to both the general counsel’s office and to the White House counsel’s office. “Unlike the others—Karen, Karl, Joe—he did not give and take a lot of quips. He is not a quipper.”
What cemented his closeness with Bush, say associates, were the death penalty cases that made up a significant part of the general counsel’s job. Gonzales vetted these cases for Bush, writing opinions if there were evidentiary or other legal problems; as counsel he signed off on 59 executions. In his autobiography, Bush writes that Gonzales’ guidance was particularly important to him on the eve of the controversial execution of Karla Faye Tucker, the attractive, born-again-Christian murderer whose death created an international sensation. Of the end of that long night, he writes, somewhat melodramatically: “On the way out the door, I paused and looked back in my office at Al Gonzales. ‘Thank you,’ I said somberly to the lawyer who had guided us through this difficult capital case. ‘You did a good job.'”
Gonzales did a good job on other cases too, including, when he was Secretary of State, Bush’s successful intervention in the state’s lawsuit against the tobacco companies, which ensured that the companies, not the state, would pay the lawyers’ fees. In 1998 Bush’s affection for Gonzales led to his appointment as a justice to the Supreme Court of Texas, though he had never tried a single case—civil or criminal. Gonzales was then elected to the position in 2000; friends say he found the electoral process distasteful. “He is well grounded, but he also has a very idealistic view of the world,” says media consultant David Weeks, whose company produced Gonzales’ lone campaign ad. “Al is the antithesis of a politician.”
Indeed, Gonzales is not a conventionally ambitious person. “I don’t believe Al had a grand strategy mapped out to carry him to the White House,” says his friend Garcia. “A lot of his success is due to skill and hard work, and a lot of it is due to luck—being there at the right place at the right time.” After Bush appointed him counsel to the president, in 2001, he moved east with his wife, Rebecca, and their three children (one from her first marriage and two of their own; it is his second marriage too). With a salary of $140,000—a fraction of the $500,000 or more he would be pulling down as a partner with Vinson and Elkins—he lives quietly in the middle-class Virginia suburb of Vienna, socializes with a small group of friends, never drinks, attends Falls Church Episcopal Church, plays golf occasionally, and drives to work each day before dawn across the Potomac River.
THE SHORT LIST FOR THE United States Supreme Court is indeed short: Six names crop up in most discussions of who the next justice will be. In addition to Gonzales, they are: J. Harvie Wilkinson III and J. Michael Luttig of the U.S. Fourth Circuit Court of Appeals, Samuel Alito of the Third Circuit Court of Appeals, Emilio Garza of the Fifth Circuit Court, and Janice Rogers Brown, a black woman who is a justice on the California Supreme Court. All are conservative enough to annoy most mainstream liberals; none have anything like Gonzales’ compelling credentials as a confidant of Bush.
For now, the game in Washington is to try to decode the tight-lipped Gonzales. What sort of Supreme Court justice would he be? On a court tilted ever so slightly in favor of conservatives, Gonzales’ lone vote could have cataclysmic effects. An inveterate Republican with such close ties to Bush, he is clearly no David Souter. He should instead inspire liberal fears that he will be carrying water for the Bush administration. Still, the problem court-watchers have is that the sphinxlike Gonzales has left virtually no trail for anyone to follow. His thirteen years as a real estate lawyer offer no clue. He has published nothing in any legal journal. His work as counsel for both Governor Bush and President Bush is largely behind the scenes. The one exception to this ideological blackout is his brief term on the Texas Supreme Court, where he participated in several hundred, mostly non-earthshaking, decisions.
Though judges are supposed to be objective and impartial, they are invariably rated according to their supposed politics: Is he for or against affirmative action? For or against abortion? For or against prayer in public schools? For or against gay rights? During his 23 months on the court, Gonzales kept such opinions to himself. He was widely viewed as a “moderate,” meaning someone who was specifically not exercising those sorts of political agendas. “If there is anything Al Gonzales is not, it is a judicial activist,” says Gonzales’ former colleague Tom Phillips, the chief justice of the Texas Supreme Court. His reference is to judges who, ignoring both judicial precedent and the letter of the law, seek to legislate from the bench. “I never saw him insinuate his personal beliefs into his application of the law.”
Indeed, Gonzales was known as part of a group of Bush appointees who were moderating influences on a court that had become known by the mid-nineties for its pronounced anti-consumer, anti-plaintiff, pro-business bias. In the eighties the Texas Supreme Court had been a paradise for personal injury lawyers, ruling heavily in favor of plaintiffs. In the early and mid-nineties, after a wave of Republican electoral victories (Supreme Court justices are elected in Texas but are appointed when a vacancy opens), the court’s politics swung violently back the other way, to the point where, in 1995, 82 percent of “defendants” (read: corporations) won their cases. Gonzales was one of four Bush appointees (along with James Baker, Deborah Hankinson, and Greg Abbott) whose work resulted in a decline in the defendant win rate to 57 percent in the 1999-2000 judicial session.
Still, Gonzales is no liberal. His Texas Supreme Court was, like Gonzales himself, thoroughly Republican and fundamentally conservative. He authored the majority opinion in an important 1999 case known as Southwestern Refining v. Bernal, which made it far more difficult for personal-injury lawyers to put together class action suits. He ruled with the majority in a similar well-known class action suit known as Ford Motor Company v. Sheldon. In Fort Worth v. Zimlich, Gonzales authored the majority opinion in a case where, according to consumer advocacy group CourtWatch, “the court eliminated an important shield to protect whistle-blowers against retaliation.”
But Gonzales could also take the other side. In Pustejovsky v. Rapid American Corporation, he wrote the majority opinion, holding that a plaintiff could recover damages for a disease that may develop in future years despite a previous settlement. “Gonzales’ opinion in Pustejovsky exemplifies his moderate approach,” wrote CourtWatch in a study. That decision and others were plaintiff- and consumer-friendly. Gonzales insists that during his time on the bench, he left his personal feelings and political opinions at home. “I tried to call them as I saw them,” he says. “I tried to be fair and apply the law no matter who won or lost the case.”
There was, however, one bitterly controversial decision in which Gonzales was deeply involved in 2000. It concerned the right of a minor girl to use the courts to “bypass” a Texas law requiring her to tell her parents that she is going to have an abortion. The issue before the court was how far a girl had to go in proving that she was mature enough to make the decision by herself. The court voted 6-3 in favor of a relatively low standard, arguing that the Texas Legislature had not meant to make it extremely difficult to bypass the parental-notification law. Abortion opponents had wanted the girl to demonstrate that she had considered the psychological, moral, and physical implications of an abortion in order to exhibit “maturity.”
The decision created a firestorm of opposition on the political right. Gonzales, who ruled with the majority, was held partly responsible. “We were shocked that a long-term friend and conservative political ally of the Bush family would rule against a law that Bush aggressively pursued,” says Elizabeth Graham, of the Texas Right to Life Committee, echoing the views of many in the pro-life community. “At the time of his appointment, we did not perceive Mr. Gonzales as an abortion-rights advocate; however, we think he interpreted the law in a way that we would call judicial activism, and we were very disappointed in his decision.”
In a blistering dissent, Justice Nathan Hecht accused the majority of judicial activism, singling out Gonzales as an example of the majority’s hypocrisy. Justice Priscilla Owen added her own sweeping condemnation of the majority, writing “the court has forsaken any semblance of abiding by principles of appellate review.” Gonzales fired back in his concurrence, writing that it was the minority, not the majority, that was guilty of “an unconscionable act of judicial activism.” Gonzales took pains to point out that “while the results of the court’s decision may be personally troubling to me as a parent, it is my obligation as a judge to apply the laws of this state without imposing my moral view on the decisions of the Legislature.”
Three years later Gonzales acknowledges that “it was a heated debate. Some members accused others of trying to impose their own personal ideology, and I wanted to reassure my colleagues that that was not going on. Looking at the words of the statute, some of us felt that the Legislature did not intend the statute to impose an absolute prohibition on minors receiving a judicial bypass.” The judicial bypass case would have far-reaching implications for Gonzales’ career. It is seen by conservatives who oppose him as a stark example of his ideological impurity. His sharply worded concurrence was also used by Democrats last year to help sink the nomination of Priscilla Owen to the Fifth Circuit Court of Appeals, pointing out that Gonzales himself had accused her of judicial activism. It is, ironically, part of Gonzales’ job as White House counsel to review, screen, and promote the administration’s judicial nominees. And thus he is now put in the position of supporting Owen, who has been renominated to the Fifth Circuit and whose nomination, as of this writing, Senate Democrats are filibustering. Through it all, Gonzales has insisted that he fully supports Owen. “The fact that she and I may have disagreed on a particular case doesn’t mean that she is somehow unfit or unqualified to serve on the court,” says Gonzales. “Quite the contrary. I think she would make a great judge on the Fifth Circuit.”
Another of Bush’s nominees to a federal appellate court, Miguel Estrada, is being blocked by Senate Democrats. Estrada, who also has a short paper trail, was once considered to be ahead of Gonzales in the line for the high court. But his nomination to the Washington, D.C., appellate court has been stalled for so long that he is unlikely to be going anywhere else. And many observers believe that Estrada’s hostile reception will guarantee smooth sailing for Gonzales.
SINCE HIS ARRIVAL IN WASHINGTON, Gonzales has been a busy, aggressive, and unusually visible White House counsel. He argued, successfully, to preserve presidential privacy when the General Accounting Office sued to get records of Vice President Dick Cheney’s energy task force. He helped write Bush’s controversial 2001 executive order on military tribunals, denying Al Qaeda and Taliban troops the status of prisoners of war and then defended it in speeches and on the op-ed page of the New York Times. He confirmed his conservative credentials (and annoyed Democrats) by firing the American Bar Association from its long-term role in vetting judicial nominees and hiring a staff of lawyers that included former clerks to Clarence Thomas, William Rehnquist, and Antonin Scalia and an aide to Kenneth Starr. He also chaired the White House Judicial Selection Committee, which has nominated judges who are in general far more conservative than the Bush appointees on the Texas Supreme Court.
Though in general his White House legal work has raised few red flags among conservatives, there is one notable exception. In January of this year, the Bush administration filed a so-called friend-of-the-court brief in a Supreme Court case challenging the University of Michigan’s use of racial preferences in admissions. Its message was principally that Bush opposed racial quotas but that he favored other “race neutral” solutions—such as the Texas rule that allows high school seniors who finish in the top 10 percent of their classes to attend the state’s flagship universities—that would have the effect of broadening racial and ethnic diversity. According to a story in Newsweek, Gonzales and his office dominated the discourse, edging aside solicitor general Theodore Olson, who considered quitting over it and had to be persuaded not to by Vice President Cheney.
Indeed, Gonzales is no purist: He has publicly supported the idea that race can be a factor in hiring and college admissions, telling the Los Angeles Times in 2001, “I know that I have been helped because of my ethnicity. Personally, I am not offended that race is a factor. But it should never be the overriding factor or the most important factor.” He and Bush seem to hold a similar view on this, and that view is well to the left of what many conservatives believe. “There is an element of ambiguity in their position,” says a source who has known Bush and Gonzales for many years. “Both men believe in their hearts that there is true social and educational benefit in having a diverse student body.” Conservatives found this point of view deeply troubling. “White House counsel Al Gonzales succeeded in weakening the government’s intervention in the University of Michigan racial preference dispute,” wrote conservative columnist Robert Novak at the time, “but at a potentially heavy personal cost.” The cost? Loss of conservative support for his Supreme Court nomination.
But Gonzales shouldn’t lose any sleep. As critics on both the left and the right wait to see which justice resigns first, the qualities in Gonzales that drive them crazy—his discretion, his circumspection, and his tact—are exactly what make him such a viable pick in the eyes of Bush. He is hard to fathom. And this personal and professional opaqueness will also make it an uphill battle for anyone to block his nomination. It is difficult to imagine Republicans’ opposing a creature of Bush with such steadfast conservative credentials; it is even more difficult to imagine Democrats’ trying to sink a man whose opinion on the Texas Supreme Court they brandished last year against Priscilla Owen. Then again, stranger things have happened. Let the judicial games begin.
With reporting by Trevor Rosen.