The Nine (47 page)

From the moment Gonzales had come to Washington from Austin, it had been more or less assumed that Bush would appoint him to the Supreme Court. His story could hardly be more inspiring. The second of eight children of a construction worker and a homemaker, the grandson of Mexican immigrants, Gonzales was raised in a Texas town whose name matched his family’s circumstances—Humble. He enlisted in the air force out of high school, graduated from Rice University, and earned a degree from Harvard Law School in 1982. Gonzales became a partner in the prominent Houston law firm of Vinson & Elkins, where he worked until Governor Bush named him his general counsel in 1994. Three years later, Bush appointed him secretary of state, and in 1999 he named Gonzales a justice of the Texas Supreme Court. Gonzales served for less than two years, because Bush took him to Washington as his first White House counsel. After his reelection, the president named Gonzales the nation’s eightieth attorney general and first Hispanic to hold the job. Gonzales was only fifty years old in 2005, the perfect age to begin a long career as a justice. He would, of course, have been the first Hispanic, a major milestone for an ethnic group that Bush had spent much of his political career courting. In addition, on a personal level, Bush adored Gonzales, who was by 2005 one of his closest friends in the government.

The clear political and personal logic for a Gonzales appointment meant that leading conservatives felt they had to move swiftly to forestall his nomination. The attacks began early the next week, in the pages of the
Washington Times
, a sort of house organ of the conservative movement (owned by the Reverend Sun Myung Moon). Then, Phyllis Schlafly, founder of Eagle Forum, a conservative activist group, said, “I don’t see any paper trail that convinces me he is somebody who is a strong constitutionalist.” Similarly unsupported comments came from Paul Weyrich, chairman of the Free Congress Foundation, a founding father of the New Right. The
National Review
published an editorial entitled “No to Justice Gonzales.” Robert Novak, the conservative columnist, wrote of “deep and broad opposition [to Gonzales] from the president’s own political base.”

In fact, the “base” was a couch—in the living room of the Capitol Hill town house belonging to a former congressional staffer named Manuel Miranda. A year earlier, Miranda had been forced out of his job as a staffer for Bill Frist, majority leader of the Senate, when it was revealed that he had been reading the e-mails of Democratic staffers on the Judiciary Committee. So Miranda set up shop at home, founding what he called, rather grandly, the Third Branch Conference, which mostly amounted to himself, his laptop, and cordless phone. But Miranda knew almost everyone in the conservative legal movement, and his blast e-mails and conference calls became a key conduit of anti-Gonzales information.

Just two hours after O’Connor’s retirement became public on the morning of July 1, Miranda scheduled a conference call with his allies, telling them he was “urging that the nomination not be Alberto Gonzales.” After the long weekend, Miranda elaborated on his reasons, saying that Gonzales “is not a movement conservative. He has not written prolifically on many issues. And so, there is no paper trail. And, we don’t know what he really thinks on many, many issues. That is something that conservatives on this nomination cannot tolerate. Justice David H. Souter did not have a paper trail. Justice Anthony M. Kennedy had a paper trail, but not on the particular issues that conservatives wished to see. So, it’s really no more Souters and no more Kennedys. And that does not add up to an appointment for Gonzales.” Miranda wasn’t much more than a glorified blogger, but his passion and his contacts whipped his views into something like the conservative conventional wisdom. He helped popularize the devastating quip “ ‘Gonzales’ is Spanish for ‘Souter.’ ”

By this time, bigger guns than Miranda were taking up the anti-Gonzales cause. A delegation of conservative lawyers, led by former attorney general Edwin Meese III and C. Boyden Gray, White House counsel to the first President Bush, met with Andrew Card, the president’s chief of staff, to warn against a Gonzales appointment. The onslaught was so immediate and intense that Bush himself, who was on a state visit to Denmark on July 6, felt compelled to respond. “I don’t like it when a friend gets criticized. I’m loyal to my friends. And all of a sudden this fellow, who is a good public servant and a really fine person, is under fire,” Bush said. “And so, do I like it? No, I don’t like it at all.”

Inside the White House, the young Federalists in the counsel’s office—conservative firebrands themselves—watched the attacks on Gonzales with astonishment. They knew that he had been among the administration’s true believers, “a hundred percenter,” in the movement argot. Gonzales had taken the most aggressive position among Bush’s allies on the legal basis for the war on terror, dismissing the protections of the Geneva Conventions as “quaint.” He had reversed decades of precedent by refusing to submit Bush’s judicial nominees to the scrutiny of the American Bar Association, because he thought the ABA was too liberal. He had joined with Vice President Cheney in asserting a new and expansive view of executive power and concurred fully with the refusal to turn over the documents in the energy task force lawsuit. He had negotiated the government’s position in the
Grutter
and
Gratz
affirmative action cases (albeit with a slightly more sympathetic view than Dick Cheney and Ted Olsen) and had supervised the selection of the judicial nominees who had so outraged the Democrats that they were moved to filibuster. Gonzales had proved his conservative bona fides many times over. What do these people want? the young lawyers in the White House asked in bewilderment. He hired us, didn’t he? What did Gonzales do to deserve this kind of treatment?

The answer was straightforward. In 2000, during his brief career on the Texas Supreme Court, Gonzales had participated in a series of cases known as
In re Jane Doe
. Bush, then governor, had signed a law that required minors to obtain the consent of their parents if they wanted an abortion. As required by United States Supreme Court precedent, the law contained an exception that allowed some girls—abuse victims, for example—to proceed with the permission of a judge rather than a parent. Interpreting this so-called judicial bypass provision, Gonzales joined a 6–3 majority on the court in allowing a seventeen-year-old to go to a judge rather than her parents. The conclusion obviously troubled Gonzales, but he felt compelled to follow the law. “While the ramifications of such a law 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,” he wrote.

The conclusions of the Texas court in the abortion case were narrow. None of the judges, including Gonzales, addressed whether
Roe
should be affirmed or overturned. The opinions didn’t interpret the U.S. Constitution at all. The only issue was how one specific Texas law applied to one girl. But those caveats counted for nothing. Gonzales’s career—including four years of loyal service in George W. Bush’s White House—also counted for nothing. Fairly or not, accurately or not, the decisions branded Gonzales as unreliable on abortion, and that was enough for conservatives to veto him as a nominee to the Supreme Court. Such was the power of movement conservatives—and such was the importance of abortion to them—that Bush had no choice but to eliminate his good friend from consideration. The president never wavered in his admiration for Gonzales and never passed up an opportunity to say kind things about him. But he also never seriously considered him for a seat on the Supreme Court.

21

RETIRING THE TROPHY

I
n the sticky heat of a summer evening, Theodore Olson surveyed with evident and understandable satisfaction the guests assembled in his spacious backyard. For years, Ted and Barbara Olson, the first couple of the conservative legal world, had dreamed of a night like this one. A Californian who came east to be an assistant attorney general under Reagan, Ted went on to argue
Bush v. Gore
and, as a reward, to serve four years as Bush’s solicitor general. His wife, a former Republican Senate staffer, had been a vitriolic and telegenic critic of the Clintons and the author of best-selling books attacking their morals, politics, and marriage. The Olsons’ wedding in 1996 had drawn such conservative luminaries as Clarence Thomas, Robert Bork, and the couple’s close friend Kenneth Starr. If Hillary Clinton’s vast right-wing conspiracy had a headquarters, it was their estate in Great Falls, Virginia. Together the Olsons had dreamed of a true conservative majority on the Supreme Court, and now the moment had come. And the likely next justice was among the guests that night.

With the moment of triumph so close, there was a note of poignancy to the evening, because Barbara was not there to share in the celebration. She had been a passenger on the plane that crashed into the Pentagon on September 11, 2001. Her courageous phone calls to her husband in the moments before she died provided important clues to what happened on that terrible day. Still, there was little doubt that she would have approved Ted’s raiding their famous wine cellar for this special occasion.

It was a more polished crowd than one would find at, say, the Colorado Springs headquarters of Focus on the Family. The partygoers eschewed the rhetoric associated with the likes of Jay Sekulow or Manuel Miranda. But for all the differences in class and temperament in the conservative movement, the agenda for the Supreme Court was remarkably consistent across the board. Reverse
Roe
. Expand executive power. Speed executions. Welcome religion into the public sphere. Return the Constitution from its exile since the New Deal. All of these goals seemed increasingly within reach.

The ostensible reason for the party was to salute David Leitch, who was leaving his position as deputy White House counsel to become general counsel to the Ford Motor Company. The gathering was modest—perhaps twenty-five people—and it served as a reminder of what a small world the Washington conservative legal elite was. Leitch himself had an almost comic number of connections to the likely nominees. He had been a law clerk for J. Harvie Wilkinson III, had worked for Michael Luttig in the first Bush Justice Department, had become Roberts’s protégé at Hogan & Hartson, and had then served as Gonzales’s deputy in the White House.

The candidates assembled that night began with Olson himself. He had a place on the short list, but no one, including Olson, thought he had much chance. He had never been a judge, his political activities had made him a Democratic target, and besides, at sixty-four he was probably too old.

Al Gonzales was there, receiving commiseration for the abuse he was taking from the movement conservatives—some of whom were also among Olson’s guests. Gonzales was technically still a possibility, but the conservative assault had taken its toll. He, too, looked like a very long shot.

Harvie Wilkinson, the courtly former chief judge of the Fourth Circuit, remained in the running. He was telling stories to his fellow guests in the same soft Virginia accent as that of his mentor, Lewis Powell. The O’Connor seat was vacant, but everyone knew Rehnquist probably wouldn’t last much longer, so many in the White House were planning for this first nominee to move up to chief justice. That was good for Wilkinson because he had the patrician charm of a Southern politician, a valuable skill for the more public duties of a chief. Still, Wilkinson was already sixty years old and, worse, he had the dreaded taint of moderation about him.

There were no such worries about Michael Luttig, whom no one ever called a moderate. Although Luttig was invited, he didn’t make it to Olson’s party, and his nonappearance reflected a problem with his candidacy: he was awkward and unsocial. Still, if anyone was the favorite for the job at this point, it was Luttig, Wilkinson’s colleague on the Fourth Circuit. Luttig was just fifty years old, the perfect age, a former Scalia clerk and a judge since 1991, with a network of former law clerks pressing hard for his appointment. Luttig still lived in Vienna, Virginia, a Washington suburb, and he remained well wired in the capital. He had been a groomsman at Roberts’s wedding.