Bush's Supreme Challenge

• Share

(2 of 4)

The fuss may seem a little curious, given that Bush's nominations to the lower courts have been so solidly planted on the right. In fact, some skeptical conservatives believe that Bush has been true blue on the lower courts in order to pave the way for nominating the more moderate Gonzales. And perhaps to burnish his conservative credentials, Gonzales has helped select and then sell these judicial nominees. He has personally met nearly all the candidates for district and appellate seats and says they are never asked their opinions on any hot-button issues.

Overall, 124 of Bush's judicial nominations have been approved, and the judiciary has its lowest vacancy rate in 13 years. But those numbers belie the intensity of the struggle over the White House selections. Senate Democrats have in recent months filibustered two nominees for appellate-court seats: Priscilla Owen, who is fiercely antiabortion, and Miguel Estrada, who has given Senators too little information about how or what he thinks. Republicans are irate and are considering trying to bar filibusters of judicial nominations.

Despite the laurels Bush wins from his base for seeding the lower courts with judges it considers ideologically correct, the Supreme Court pick is seen in a different league. "It doesn't do any good to pick good lower-court guys and throw the Supreme Court" to a moderate, says conservative activist Grover Norquist. The Supreme Court is the Holy Grail for the right and not to be bargained or traded away. The firmness of conservatives on the high court casts some doubt on one option that White House strategists are considering: elevating Scalia to Chief Justice if Rehnquist leaves, thereby earning enough credit with the right to put Gonzales in the vacancy.

So what's the problem with unassuming Al? Pro-life advocates believe that if the right jurist replaces either O'Connor or Stevens, the court will finally have a chance to overturn Roe v. Wade, the 1973 ruling that established the right to have an abortion. Though Gonzales' views on the matter are not known, opponents cite his vote--and the concurring opinion he wrote--as a Texas Supreme Court judge allowing a girl to use a bypass provision of a state parental notification to get an abortion. "Pro-life conservatives will oppose him for that," says Terry Jeffrey, editor of Human Events, a conservative magazine.

Gonzales opponents also see the White House counsel as having a hidden hand in what they regard as the President's too soft position on the Michigan affirmative-action case. For that case, the White House filed a Supreme Court brief opposing the University of Michigan's admissions program but did not push to end affirmative action outright. And Gonzales did not help himself with a speech to a group of Evangelical leaders last year in which he did not strongly call for reversing Roe. The rock ribbed just find him squishy. "He is the counsel to a conservative President rather than a conservative counsel to the President," says Clint Bolick, vice president of the libertarian Institute for Justice.