With the one-hundred-day mark of George W. Bush’s presidency still visible in the rearview mirror, the “compassionate conservative” campaign mantra appears to be tilting more and more to the conservative rather than the compassionate. The left can take some solace in the ethnic diversity of his appointments and his emphasis on education while the right celebrates his insistence on huge tax relief and his appointment of John Ashcroft as attorney general. Bush’s true colors, however, will not appear until he starts nominating folks to the federal judiciary. A place on the federal bench is forever, or at least for life, and a president’s judicial appointments reveal his fundamental beliefs in a way that more transitory political moves don’t. The stakes will never be higher, nor more high-profile, than when Bush fills vacancies that occur on the U.S. Supreme Court.Four spots could come open during the next four years, covering the court’s entire ideological spectrum. On the right is 76-year-old chief justice William Rehnquist; on the court’s liberal wing, John Paul Stevens, the eldest justice at 81, and Ruth Bader Ginsburg, 68, are both cancer survivors. Sandra Day O’Connor, also a cancer survivor at 71, is regarded as a centrist. The Washington rumor mill has Stevens and O’Connor leaving as early as this summer.
Depending on who leaves and how soon, the makeup of the court could change dramatically. If Bush were to act on his stated admiration for justices like Antonin Scalia and Clarence Thomas, he could swing the court on abortion, affirmative action, and an assortment of other individual-rights and federal-powers issues and change the American political scene for the next two decades. But first his appointees would face a confirmation battle in the Senate—and in the court of public opinion—that could be as frenzied as his Florida recount fight.
Three Texas jurists are said to be on the relatively long short list for court appointments: Fifth Circuit Court of Appeals judges Edith Jones of Houston and Emilio Garza of San Antonio, and governor’s counsel turned Texas Supreme Court justice turned White House counsel, Bush legal handyman and supreme loyalist Alberto Gonzales.
Jones, 52, and Garza, 53, are the better-known quantities, with a combined 26 years of service on the Fifth Circuit. Both were widely reported to be finalists for Supreme Court seats that ultimately went to David Souter and Clarence Thomas during the elder George Bush’s administration. Jones and Garza are considered hard-shell conservatives; as David Dow, a University of Houston constitutional law professor who has handled more than fifty cases before the Fifth Cir-cuit, puts it, they are “on all fours with Rehnquist in the most significant thing his court has done, which is to dramatically alter the balance of power from the federal government to the states.”
Despite her background in the dry field of bankruptcy, Jones would be the most controversial choice by far. When her name surfaced a decade ago as a possible pick by the elder George Bush, critics charged that she was too extreme for the Supreme Court. But it’s not just her conservatism—as evidenced by a 1997 opinion that threw out a federal ban on possession of machine guns—that drew their ire; it’s the way she parades it on hot-button issues like sexual harassment and capital punishment. In 1989’s Waltman v. International Paper, an attorney argued that Waltman, a female paper plant employee, had endured three years of sexual graffiti, notes, and propositions from male co-workers, along with having her breasts grabbed and her butt pinched with pliers. Jones’s position—that the allegations did not constitute sexual harassment—would have been controversial enough. But according to published accounts of the oral arguments, Jones said to the woman’s attorney, “Well, your client wasn’t raped,” and pointed out that the breast-grabber later said he was sorry.
However, what would get the most attention in a confirmation fight is her unsympathetic (to put it mildly) approach to capital punishment. Jones has published articles and lectured prosecutors and judges on how to speed up death penalty appeals. She once complained to attorneys in a teleconference hearing that a last-minute request to stay an execution was causing her to miss her six-year-old son’s birthday party. In the now famous “sleeping lawyer” case, Burdine v. Johnson, Jones upheld the conviction of a Texas capital murder defendant whose attorney, by all accounts, had snoozed through significant portions of his trial. The court’s opinion, joined by Jones, held that these naps by Burdine’s court-appointed representative did not violate Burdine’s Sixth Amendment guarantee of the right to counsel unless Burdine could prove the attorney slept through important parts of the trial. The case is being reviewed by the entire Fifth Circuit and an en banc opinion is expected soon.
Garza would be a less controversial pick than Jones, and his Spanish surname would be a plus: It is widely thought that Bush wants to be the first president to nominate a Hispanic to the court, and no Democrat wants to be known as the person who shot him down. Garza’s philosophy is similar to Jones’s. “Emilio would not be driven to create new laws, discover new rights,” says Lino Graglia, a University of Texas law professor and conservative icon. “He would be, like Edith, willing to resign himself to the appropriate judicial role of self-restraint.” But Garza’s low-key conservatism stands in sharp contrast to Jones’s unapologetic rhetoric. In last year’s Flores v. Johnson, Garza went so far as to criticize one of the more draconian death penalty developments, picking apart the trial court’s basis for allowing so-called Dr. Death testimony—expert witness testimony on the future dangerousness of a capital murder defendant by a psychiatrist who had never interviewed the accused.
Another case where Garza did not hold his tongue was an abortion case, and with Roe v. Wade being every bit the litmus test for the left that Bush swears it is not for him, Garza’s comments could come back to bite him. In Causeway Medical v. Ieyoub, the Fifth Circuit struck down a Louisiana law that weakened exceptions to the state requirement that minors get a parent’s consent before receiving an abortion. In his concurring opinion, Garza lamented the fact that he had to follow the precedent of Roe v. Wade and its progeny. These cases, he said, “have always stood on precarious constitutional footing,” suggesting that the time had come for the Supreme Court to extricate itself from the “morass of abortion cases and [return] the debate to the people.”
With only two years of judicial experience, and that on the Texas Supreme Court rather than the federal bench, White House counsel Al Gonzales is the hardest of the three to peg. In his tenure on the state’s high court, he wrote only fourteen majority opinions, shedding little light on his views concerning the kinds of issues that face the U.S. Supreme Court. He did write a concurring opinion in an abortion case that was favorable to minor girls seeking a judicial bypass to the state’s parental notification requirement. “While the ramifications of such a law,” he wrote, “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”—a statement with elements that could appeal to both sides.
“I don’t think he has a particular dogmatic model of always looking at history or precedent or policy,” says UT law school dean Bill Powers, who has appealed tort cases for plaintiffs and defendants before the Texas Supreme Court for fifteen years. “I think he has a solve-the-problem approach of looking at all those things, and that is very distinct from someone who will stick to his method of analysis no matter what.”
The absence of a paper trail would only help Gonzales. It would give Democrats less ammunition come confirmation time, while Republicans who are worried that he might pull a Souter and make a sharp left turn upon taking his seat should be put at ease by the confidence that led Bush—who values nothing so much as loyalty—to bump Gonzales up from governor’s counsel to Texas Secretary of State to state supreme court justice to White House counsel, all in the span of barely three years.
But the road could still get bumpy. In a whistleblower lawsuit in progress in Austin, a former state employee has questioned whether Gonzales played a role in calling off a state investigation into the business practices of funeral home giant SCI, whose CEO, Robert Waltrip, is a major Bush contributor. And Senate Democrats might want an explanation why, as White House counsel, Gonzales saw fit to fire the American Bar Association’s Judicial Selection Committee from its 53-year role of vetting potential nominees to the federal bench.
The difficulty of the confirmation fight for any of the three varies according to the identity of the justice they would replace. The permutations play out like a Rubik’s Cube. Some observers think Jones is too controversial to be confirmed, but even her intemperance might get by if Rehnquist retires. But suppose Garza or the inexperienced Gonzales is nominated to replace O’Connor, Ginsburg, or Stevens. Then Senate Democrats would face a tough decision: oppose the first Hispanic nominee to the Supreme Court or put the balance of power on the court in jeopardy.
Bush’s four appointments to the Texas Supreme Court didn’t create much commotion, and not simply because they proved to be centrists who moved the court back to the middle from a previous rightward correction. The rulings of the state’s high court aren’t a good indicator for who Bush might pick for the U.S. Supreme Court. The law that the Texas court wrestles with is state law, covering everyday life: family law, contract disputes, estate planning, landlord-tenant relations, personal injuries, and the like. The work of the U.S. Supreme Court, on the other hand, is to answer the sweeping, fundamental questions of our nation, to identify the basic truths at the heart of the relationship between government and the governed, and to define our most basic concepts of equality, justice, and freedom. That may sound like the kind of star-spangled syrup best left to opening day of con law class, but it’s true. And that’s why George W. Bush’s Supreme Court appointments may be the most important thing he does.