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.