Posted on 08/24/2003 11:47:17 AM PDT by Scenic Sounds
Alberto R. Gonzales, a Texas native, is a Harvard Law School graduate who became a partner in a Houston law firm. He later served as then-Gov. George W. Bush's general counsel, was Texas secretary of state and a justice on the Texas Supreme Court. He has been White House counsel to President Bush since 2001 and is reported to be a possible nominee to the U.S. Supreme Court.
Question: Where do President Bush's high level judicial appointments that are now in the Senate stand? What does the White House plan to do about these?
Answer: If you look at the total numbers, I think one could draw the conclusion that we've been fairly successful in having a lot of the president's nominees confirmed. We've worked very hard at it. And we think we've nominated some very good people to the federal bench. And if you look at the numbers, certainly for district court level, one could conclude that we've done a pretty good job. The numbers are a little bit more disappointing at the circuit court level. If you look at the percentage of confirmation for the first two years of President Reagan, Bush 41 and President Clinton, the confirmation rates for circuit court judges was about 90 percent during the first two years of their administrations. We're about 50 percent. So we haven't enjoyed the same level of success.
So only half of those you've nominated have been confirmed.
Yes. At the circuit court. Which is far below, sort of the deference paid to other presidents during the first two years of an administration. We are currently enduring a filibuster with respect to three of our circuit court nominees. There have been hints and rumors that there will be a fourth against (California) Judge Carolyn Kuhl, who the president nominated for the 9th Circuit. All indications are that she will also be filibustered. I continue to meet with Senator Leahy and others in the Senate to try to reach an accommodation. I met a few weeks ago with Senator Leahy specifically about the 6th Circuit where we have four nominees from Michigan pending. They've been waiting for two years in some cases. And the stated reason they're being blocked is because of the treatment given to President Clinton's nominees to the 6th Circuit. So we continue to talk.
Aren't these primarily ideological objections?
Not to the 6th Circuit. Not at all. I have not heard one complaint from the Michigan senator regarding the qualifications or ideology of the president's nominee to the 6th Circuit. Not one complaint about their qualifications.
So this is just retaliation?
I don't know if it's retaliation. One of President Clinton's nominees to the 6th Circuit waited four years after nomination and she never got a hearing. Now that is wrong. That should not have happened. No president should have any nominee pending and waiting for four years before the Senate takes some kind of action. Now I'm on the record saying it was wrong. The president, even when he campaigned as president, said that every nominee deserves fair treatment and a prompt hearing and a prompt vote. And believe that, and that's why the president last November came out with a proposal that no matter who controls the White House, no matter who controls the Senate, the president would make a nomination within 180 days of learning of the vacancy, that the Senate Judiciary Committee would provide a hearing within three months of a nomination, and then three months after that, the Senate would vote up or down. And that's the proposal that the president laid out. No matter who controls the White House, who controls the Senate. Because everyone is entitled to some kind of finality.
And where is that proposal now?
It's kind of pending in the Senate. The Senate can formally adopt it. They haven't done so. We've asked them to do it. We have been operating as if that proposal is in place. We have worked extremely hard to make sure that we make a nomination within six months of learning of a vacancy.
Why might Judge Kuhl be the target of a filibuster by Senate Democrats?
What I understand is you've got two Democratic senators (Dianne Feinstein and Barbara Boxer), the home state senators, who are opposing her. I think it will be couched in terms of a procedural opposition. I think some people have raised some concerns about some of her decisions in the past. But she enjoys broad bipartisan support in this state, (she's) an extremely popular judge (among) Democrats and Republicans. Her colleagues in the courts speak very highly of her.
What is the procedural hang up in the Senate?
That if you have two Democratic, home state senators that oppose a nominee, the nominee doesn't move forward.
What is their opposition to Kuhl?
I don't know what their substantive opposition is to Judge Kuhl. And I don't want to speak for the senators. My understanding is that based upon a letter that both senators wrote to Chairman Hatch, they believe it's unprecedented to move forward with a nominee when you have two home state senators that have raised an objection.
Do you know the status of the new judgeships for San Diego?
No, I don't know what the status is.
Has the president made decisions on nominees?
I think we've made (them).
I was told the process is being held up by FBI background checks.
The way the process works is we identify a vacancy, we find good people to bring in and interview. We then make an internal decision within the White House and the Department of Justice. We then take that name to the president. The president approves the recommendation to that point. And then the person undergoes an FBI background check. If the FBI background check comes back clean, then the president makes a final decision to move forward. So it's not a question of being held up by an FBI background check. It is part of the process.
Can you give us any insights into the future of the Supreme Court, with so many justices at potential retirement ages? If a vacancy doesn't occur this year, do you anticipate this president will have vacancies in the next year? And what's his general approach to filling those vacancies?
I am in no better position to anticipate a vacancy than you are, quite frankly. We don't have any special relationship with the Court where they're going to call us and let us know that 'I'm stepping down next year or two years from now.' So it's hard to predict. I think the conventional wisdom is that we would not have a vacancy in an election year. People seem to presume that if you don't have a vacancy this year we're not going to have one next year. It will be sometime in '05.
Because it would be impossible to confirm a justice?
I think there's a feeling that getting anyone who's nominated to the Supreme Court confirmed is going to be a tremendous battle. To do it in an election year would make it doubly difficult. So I think and people presume that the judges on the Supreme Court pay attention to what's going on politically. And that they understand that if they were to leave during an election year that they would make the confirmation of their successor doubly difficult. Of course, if you're a judge on the Supreme Court, you can do whatever you want to in terms of when you want to leave or have to leave because of sickness or something like that.
Do you top the list for appointment to the court?
I think who the president is going to nominate to the court is going to depend on a lot of factors: What else is going on in the Senate, who leaves the court. Whether or not someone tops the list, it's hard to predict without knowing a lot of other facts.
What would be the president's principle qualifications that he would look for in a Supreme Court justice?
Well there are lots of things that I think one would look for. I think he would look for someone who is very respectful of the role of the court in our system of government.
Is that code language for a strict constructionist?
I think the president believes that unelected officials like judges should not be in the business of developing policy for the American people. Because they are unaccountable. There is nothing you can do to a federal judge once they make their decision. And so they can make decisions on policies and very important issues that are important to the American people and they're accountable to no one. The president believes that judges should be mindful of the fact that their primary responsibility is to discern what the Congress intended when they passed the statute, try to interpret the Constitution and apply both of those and render their decisions.
Do you think it is a bad thing that the confirmation process has become so difficult?
I don't know if it's a bad thing. I know it's a lot different than what it used to be when you had previous Supreme Court justices confirmed in a day. A day of hearings and it's done. And you wonder what is changed that requires us now to go through protracted weeks of hearings and examination and things like that. I think it's discouraging to people. I know the process itself and the level of pay has discouraged good people that I'm aware of that were unwilling to, say, consider positions on the circuit. So I think that's unfortunate.
Don't you think the Bork experience more or less turned things? Was Bork too honest? There was no doubt where he stood. Since then the name of the game seems to be to say as little as possible and maybe be less than truthful about your positions.
It's a difficult position to put someone in if you're a nominee. People want to know what your personal views are. And if you express your personal views then people say 'a-ha, you can't possibly be objective, you are going to come to the bench with pre-conceived ideas about how you are going to decide on cases.' It's a problem that Bill Pryor is currently enduring, the Alabama attorney general who's been nominated to the 8th Circuit (Court of Appeals). Extremely vocal, his personal views. Very strong Christian. Strong views about abortion and Roe v. Wade. And he was very candid and very honest. And because of that, people say he can't possibly come on the bench and be objective, that you're going to be totally influenced by your personal views. And I think that's unfortunate.
Do you think he will be confirmed?
I hope he'll be confirmed. I think some people believe he may be another likely candidate for a filibuster. I don't know. It's hard to gauge at this time. I take that back, he did enjoy a Senate floor vote and he was filibustered. Will he be confirmed? I hope so.
What are your own personal views about Roe. v. Wade?
I don't give my own personal views on that. And won't do it today.
Are there other vacancies on the 9th Circuit? What would it take to divide up the 9th Circuit to make California two circuits?
It would require legislation to do that. You have to figure out how you would divide it.
The Patriot Act is obviously a contentious issue right now about the balance between civil liberties and the government's ability to protect itself. What is your general take on where this debate is?
I think it's good that we're having a debate.
But are you concerned as a lawyer in terms of civil liberties?
I'm always concerned. The president's concerned. We're always concerned about the protection of civil liberties. We're also concerned about the protection of the security of this country. And the thing that we have to do is balance the two. And that's hard to do sometimes. What is the appropriate balance between protection of the security of this country and the protection of our civil liberties? And sometimes there are no clear answers. Yes, we are very concerned about civil liberties. And we make an informed judgment after talking with a lot of folks. Let me assure you of one thing: there has not been a single decision that this president has made in the war on terror that wasn't fully vetted and approved by all the lawyers in the administration starting with the attorney general.
That's certainly a big issue. Do you think that Mr. Gonzales should be willing to share his views on that subject?
Well, that's reasonable. I noticed, though, that we won't even share his views on Roe v. Wade.
I assume his refusal is in anticipation of a nomination hearing down the road, but I'm not sure a nominee can get approved without some discussion of the issue.
Gonzales makes an extremely important point here. The unaccountablity of judges is a serious issue, and it's very important to have a conservative choosing these judges that will serve lifetime terms.
I don't know if it's a bad thing.
It's not a bad thing.
And he was very candid and very honest.
Wasn't it Scalia who said that if you ever wanted to make it to the Supreme Court, you should never, ever put any opinions into writing?
I don't give my own personal views on that. And won't do it today.
Completely understandable, if he's going to be vying for a position on the Supreme Court.
LOL. Maybe I should have just said that he (Mr. Gonzales) seems to think that he and the White House play a key role in the selection of nominees for the federal bench. ;-)
I think it's pretty standard, yes, after so many nominees get ripped to shreds by Senators who use every single statement against them.
In this case, I don't blame Gonzales for not speaking out.
I think that each nominee has to develop his or her own strategy regarding how much judicial philosophy should be disclosed. Obviously, no one should commit themselves to voting a certain way on any particular case that is known to be before the court, but beyond that, it gets pretty murky.
LOL. Yeah, we all can.
I think your suggestions are good ones. ;-)
You know, I heard about that, but I don't know the reasons for which he intervened. Do you think that maybe he did that because, like a lot of other conservatives, he believes in states' rights?
Of course the effort failed, leaving conservatives livid, the constitution further deformed, and the left still hating Bush (despite his pathetic "applauding" of the Court's eventual decision).
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