The Gonzales Nomination, Part I

Despite a contentious confirmation hearing, all indications point towards, Alberto Gonzales, President Bush’s nominee for attorney general (and by the way, in case you missed the 31,527 mentions of this fact in the press, the first Hispanic to be nominated to the post and a veritable minority “conservative” supreme if you listen to Sean Hannity) being confirmed by the United States Senate sometime this week.

Gonzales’ nomination has stirred controversy on both the right and left.

Conservatives and pro-lifers have focused on a ruling made by Gonzales while he was on the Texas Supreme Court that allowed a 17-year-old girl to get an abortion without notifying her parents in spite of a Texas parental notification law. This decision seems consistent with Joseph Farah’s claim that Gonzales believes the Constitution is a “living document” – words often used by lawyers and judges who have sought to use the judiciary to impose a social agenda on the American people.

A point of history seemingly lost on conservatives who support Gonzales’ confirmation is the instrumental role he played in shaping the Administration’s position on two of the most important cases involving affirmative action/racial preferences in recent years – cases involving the University of Michigan undergraduate (Gratz v. Bollinger) and law school (Grutter v. Bollinger) admissions system. Gratz held that race preferences were illegal because “the procedures employed by the University of Michigan’s Office of Undergraduate Admissions do not provide for a meaningful individualized review of applicants.” Whereas, in Grutter the Court found that the law school’s method of review does provide an individualized review process and therefore validated giving minorities preferential treatment on the basis of the “compelling state interest of diversity”. Stripped of its rhetorical veneer the Court essentially struck down a rigid quota system while providing a nod and a wink to the policy of university administrators who are allowed to discriminate against better-qualified white applicants in the service of a loosely defined social engineering objective.

The President’s response?

I applaud the Supreme Court for recognizing the value of diversity on our Nation's campuses. Diversity is one of America's greatest strengths.

So where does Gonzales fit into all of this? According to CNN’s Robert Novak, the Bush Administration, led by Solicitor General Ted Olson, originally planned to file a brief opposing any consideration of race by public universities, that is, before Gonzales intervened:

Gonzales, who has publicly supported racial preferences, revised the petition. Accepted by the president, it advocates the desirability of government-sponsored diversity if achieved short of quotas.

In other words, the legal reasoning put forth by the Court in Grutter is totally congruent with Gonzales’ legal philosophy on this matter. The entire tale of how Bush and his advisors were able to skillfully appease the Republican Party’s conservative wing by denouncing “quotas” while simultaneously assenting to Gonzales’ tortured (no pun intended) Constitutional argument, which essentially allows for what amounts to a stealth quota is intriguing and I will not attempt to rehash it here. Suffice it to say, the President’s handling of the affirmative action cases and his choice for attorney general provide two more examples amongst a litany of betrayals of his conservative base.

Part II: Gonzales, Torture, and the Constitution