No, not Gonzales!

Robert Novak
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Posted: Jun 27, 2005 12:00 AM

WASHINGTON -- It was not merely a leak from the normally leak-proof Bush White House. For more than a week, a veritable torrent has tipped Attorney General Alberto Gonzales as President Bush's first nomination to the U.S. Supreme Court. It has sent the conservative movement into spasms of fear and loathing.

 Gonzales long has been unacceptable to anti-abortion activists because of his record as a Texas Supreme Court justice. Beyond pro-lifers, he is opposed by organized conservative lawyers. Ironically, the same Bush supporters who have been raising money and devising tactics for the mother of all judicial confirmation fights are in a panic that Gonzales will be named. With the president's popularity falling among his conservative base as well as the general populace, a politically disastrous moment may be at hand.

 The president will have to act quickly if the high court's current session ends today [Monday] with a resignation. Justice Sandra Day O'Connor now is considered more likely to quit than ailing Chief Justice William Rehnquist. White House leaks describe Gonzales as the leading prospect for either vacancy. That creates a situation filled with irony, contradictions and questions.

 For example, why the torrent of Gonzales leaks from a White House extraordinarily adept at holding back the president's intended nominations? It looks like a trial balloon, but there are also suspicions that Gonzales's name has been floated by critics in order to shoot him down.

 If opposition to abortion is Bush's pre-eminent social conservative position, Gonzales is a most improbable choice. He could not bring himself to support parental notification on the Texas Supreme Court. While he professes to be anti-abortion, he maintains Roe v. Wade is inviolable -- a judicial version of John Kerry's formulation.

 Conservatives fear Gonzales will be another in a long line of Supreme Court justices who have proved more liberal than the president who appointed them expected -- John Paul Stevens, Sandra Day O'Connor, Anthony Kennedy, David Souter. That is a view widely held inside the White House, but not by the occupant who counts most. George W. Bush loves Al Gonzales and would like his former chief counsel to head a "Gonzales Court."

 Since Gonzales was confirmed as attorney general after a nasty debate over treatment of terrorist detainees, the argument he would be confirmed more easily than other prospects might seem dubious. But Senate Democrats may have expunged anti-Gonzales bile from their system and be willing to support somebody who is markedly less conservative than any other nominee.

 Indeed, all other possibilities are conservative. They face trouble from Democratic senators who have led the campaign to block Bush's judicial nominees. Three of them, Sens. Edward M. Kennedy, Patrick Leahy and Charles Schumer, went on the Senate floor last Thursday morning to issue a virtual ultimatum. Underneath restrained rhetoric, they were telling the president: name justices acceptable to us or face a bitter battle. Gonzales might be the most acceptable name mentioned.

 The White House has sent word that two favorites of the conservative movement -- Appellate Judge J. Harvie Wilkinson (4th Circuit, Richmond, Va.) and former Solicitor General Theodore Olson -- are ineligible because they are over 60. The two current favorites are Appellate Judges John Roberts (D.C. Circuit) and J. Michael Luttig (4th Circuit).

 But sources report Rehnquist is not ready to resign and that O'Connor is readying the way for a return to Arizona with her invalid husband. While Bush would consider replacing one of the court's two women with its first Hispanic justice, neither Roberts nor Luttig for O'Connor would be politically correct.

 Accordingly, White House judge-hunters are looking for a woman. They have interviewed Appellate Judge Edith Brown Clement (5th Circuit, New Orleans), a conservative who flies under the radar. She was confirmed as a Louisiana district judge in 1991, seven weeks after her nomination by the first President Bush, and was confirmed as an appellate judge in 2001, two and a half months after George W. Bush named her.

 Clement would be subject to far more scrutiny as a Supreme Court nominee. So would any other conservative named by Bush, though Democrats may have exhausted scrutinizing Gonzales. The president must choose between a fierce confirmation fight or the alienation of his political base.