Attorney General Pick Faces Pro-Life Scrutiny
WASHINGTON — President Bush's announcement Nov. 10 that he would replace outgoing Attorney General John Ashcroft with White House counsel Alberto Gonzales was greeted with caution in Catholic and pro-life circles.
If confirmed, Gonzales, the son of migrant workers from Mexico, would be the first Hispanic-American attorney general.
While much of the initial reaction to the nomination has focused on legal memorandums Gonzales supervised regarding the treatment of terror suspects, some observers have questioned his dedication to standing up for the rights of unborn citizens.
“As a Texas Supreme Court justice, Gonzales' rulings implied he does not view abortion as a heinous crime,” Judie Brown, president of the American Life League, said in a press release. “Choosing not to rule against abortion, in any situation, is the epitome of denying justice for an entire segment of the American population — pre-born babies in the womb.”
Brown was referring to a case Gonzales ruled on involving parental notification for minor girls considering abortion. He voted against the law.
But Darla St. Martin of the National Right to Life Committee said Gonzales will have a position in the president's Cabinet that will require him to carry out Bush's policies. “And since we have a pro-life president, we can expect he will carry out pro-life policies,” she said.
Asked if he would be able to carry out something similar to Ashcroft's initiative on the dispensing of federally controlled lethal drugs in Oregon, St. Martin said simply that it was a policy of the president, and Gonzales would be expected to carry it out.
Focus on the Family issued a brief statement saying it knows how highly the president regards the man known in the White House as “The Judge.”
“We expect these issues and other policy priorities of the president will be carried out by Mr. Gonzales with excellence,” the organization stated.
Douglas Kmiec, former dean of the Columbus School of Law at the Catholic University of America, was not incensed, as Brown was, about Gonzales' action in the Texas court case. Kmiec, who is now professor of law at Pepperdine University Law School, believes Gonzales was merely doing his job at a subordinate court.
“He put his objections [to Roe v. Wade] in the opinion,” Kmiec said, but voted against the law because he knew the U.S. Supreme Court would not uphold it. Those who are criticizing him, Kmiec said, probably have not read the opinion.
But Teresa Collett, a law professor at the University of St. Thomas in St. Paul, Minn., has read it. Collett used to teach in Texas and wrote an article on the case in the Baylor Law Review. She was “distressed” by the opinion, she told the Register.
The case was about a 17-year-old pregnant girl who did not want to notify her parents or seek a judge's permission for an abortion because she had been abused at home. The question before the court was what level of abuse this should be considered — child, adult or ordinary abuse. The highest standard is child abuse, which would mean she needed a judge's permission. But Gonzales argued for the adult abuse, Collett said, which does not require that oversight.
Collett believes, though, that Gonzales was trying to reach consensus on the issue. As it ended up, there was a plurality of opinions, which meant the ruling only applied to the case that came to the court and not to the law in general.
The Torture Question
Still, Kmiec said he knows Gonzales on both professional and personal levels and believes him to be a man who “is certainly sound in his instincts.”
Gonzales is drawing fire from human-rights watchers because of his opinions on al-Qaida members and their rights under the Geneva Convention.
Among other things, he called the Geneva Convention “quaint” when it comes to dealing with terrorists.
But Kmiec said there's good reason for Gonzales to make that kind of statement. The convention recognizes a prisoner of war when the prisoner is a member of an identifiable nation and is going after targets of war, not civilians. Gonzales was “courageous” to stake out a position for the president, Kmiec said, in showing that al-Qaida members do not fit under the Geneva Convention despite pressure from European countries. Certainly they are to be treated humanely, Kmiec added, but they do not have the same rights as prisoners of war.
That, of course, leads to the issue of torture. Some reports have said Gonzales has met opposition from military lawyers because of the memos he supervised about allowing torture to be used.
But Kmiec said Gonzales has recognized and admitted that what was written, based on advice from the Office of Legal Counsel at the Justice Department, was wrong. Kmiec said he wanted to be careful in speaking about that office, in which he used to work, but he acknowledged that what Gonzales was given was “theory.”
“He didn't get good advice,” Kmiec said. “He got a theory by an academic.” And the advice “did not get the vetting it should have received” from others at the Justice Department, he added.
What is most telling, he added, is that Gonzales “admitted the error” and said the issue “needed to be re-looked at.”
That comment, Kmiec said, “infuriated many of my conservative friends” who uphold a certain ideology, “and he took some heat for saying that.” But “that's what you want in an attorney general,” he added. “Someone who is willing to re-look at things and not uphold a certain ideology.”
While pro-lifers are cautious about Gonzales' nomination, some are saying it is better for him to be attorney general than to be on the Supreme Court, where he was considered a prime candidate for any one of three to four expected vacancies.
“It's better that he's attorney general than on the Supreme Court,” said Gerard Bradley, a law professor at the University of Notre Dame.
Bradley said it was a “real risk” that a Justice Alberto Gonzalez he could turn out like Justice David Souter.
Souter was a Republican fixture in New Hampshire who had been assumed to be in line with pro-lifers when he was appointed to the high court, Bradley said. “But he isn't and he never was.”
With Gonzales as attorney general, “I don't think it would make much difference,” he added, because “the lion's share of what he needs to deal with is law and order. So whatever Gonzales' deficiencies are on cultural issues will not be a major impediment.”
The question it raises now, Bradley said, is “who will be on the Supreme Court?”
Thomas A. Szyszkiewicz writes from Altura, Minnesota.
- November 21-27, 2004