Good. I'm glad that Gonzalez has conservative supporters, but questions about Gonzalez's judicial style remain open. This post is not th first time I'v weighed in on this issue. This is what I wrote 2 months ago:
...GWB promised in both of his presidential campaigns to nominate SCOTUS justices in the mold of Scalia or Thomas. He won, due in large part on that basis. Had he campaigned on his promise to nominate justices in the O'Connor mold, many conservatives would have stayed home and we'd be worrying about who President Gore or Kerry would nominate.Nothing I've said there has changed. I'd only add, and hopefully clarify, that I believe Gonzalez to be a conservative politically, and while conservatives want a political conservative appointed to the court, we want one who will interpret the constitution based on the meaning that its words had when they were enacted. So far as I'm concerned that may not always produce the politically conservative result, but the correct result. Conservatives voted for Bush because he promised to appoint justices to the court that would do this because we don't believe that the court should produce politically liberal results because those are the preferred policies of the justices making the ruling.
As far as I can tell, AG Gonzalez is a farily conservative guy, but as a judge in Texas, and as White House counsel he was not reliably conservative on certain issues such as affirmative action or abortion. A state supreme court judge is also bound by Roe v. Wade and other SCOTUS decisions, but a Supreme Court justice is not (...necessarily. O'Connor gave precedent great weight, whereas Thomas believes that if the decision was an incorrect interpretation of the Constitution, it should be overruled). Without having studied any of his opinions, it could be possible that Judge Gonzalez is an originalist, but a state supreme court judge does not have as much leeway with that judging style than does a SCOTUS justice does, particularly if they have their eyes on bigger and better things.
The consensus, however, seems to be that Gonzalez is an O'Connor type in his judicial style. If that is the case, then nominating Gonzalez is a breach of GWB's promise to nominate a Scalia/Thomas type strict constructionist/originalist. On the other hand, if Bush is convinced that Gonzales IS a Scalia/Thomas type justice then he should clearly state that is this belief AND provide evidence for such a claim. Of course, if he does believe that, conservatives may have real cause to be worried about the president's understanding of originalism.
It isn't that Gonzalez is not qualified to be a justice based on his resume or character. But there are a lot of qualified people. As far as I can tell, however, he is not an orginalist. To the originalist, the constitution's meaning does not change over time and thus there is no opportunity to move to the left. The right's worry is that only a strict originalist can be trusted not to drift leftward in his/her tenure on the court because his/her core judicial style does not allow for it.
Conservatives are rightly upset about the prospect of Gonzalez, not because we don't think he is a good person or qualified for the court, but because (1) he isn't an originalist, which we were PROMISED, and (2) this is the first time in a long time that conservatives have a real opportunity to shift the court in a constitutionalist/originalist direction, and we don't want to blow it. We want the court to apply the constitution as it is written, NOT based on how the justices feel that day or whether they might not get invited to a tony Georgetown party if they rule the "wrong" way. Unless Gonzalez is an originalist, he shouldn't replace O'Connor or the Chief. As far as I'm concerned, he'd be acceptable to replace any of the reliable lefty justices (Stevens, Breyer, Souter, Ginsburg), and MAYBE even Kennedy. For the reasons stated above, and for the time being, however, he should not replace Rehnquist or O'Connor.
The Dems will go nuts no matter who Bush nominates. That is the why the nominee should be someone and something (shifting the court rightward!) worth fighting for.
Conservatives fear a Gonzalez pick because we see no evidence that he would be an originalist jurist. The affirmative action case, in my eyes, cuts against a finding that he is. There the government argued that "achieving diversity" is a compelling state interest that justifes racial preferences in colleges admissions, but that University of Michigan had not narrowly tailored their policies to achieve that diversity. This is not a conservative result, to be sure, but it is not an originalist reading of the Equal Protection Clause by any measure and the Bush Administration should not have even argued it. It may be unclear about AG's role in the argument, but he was clearly involved.
Conservatives don't want any more Souters or O'Connors on the court. We want a clear originalist to be nominated because that is what we were promised. Anything less will be opposed.
