Jim Lindgren of the Volokh Conspiracy has weighed in with his thoughts on potential Bush judicial nominees:
Personally, my uninformed guess is that Bush will nominate Alberto Gonzales for the next vacancy on the Supreme Court, though this is far from certain. White House Counsel Gonzales has Bush's trust, has prior judicial experience, and is reputed to be competent. Gonzales would be as moderate an appointment as the Democrats are likely to see. Not only is Gonzales probably in favor of affirmative action, but he decided against parental notification for abortion in Texas. If there are two slots to fill at the same time, I would expect an attempt at a deal--Gonzales plus another much more conservative justice. Depending on whom they replace, that would leave the abortion split close to the same.
All sounds reasonable. The one thing that could be a big stumbling block for Gonzales is his role in the now-famous torture memos from the White House. In early 2003, Gonzalez authored several memos that suggested that the Geneva Conventions were quaint and out of date and need not apply to the war on terrorism, thus giving the green light to torture. He was not alone in this, of course, similar memos came from Justice Department and Pentagon counsels. But this could prove to be a difficult sell. The Constitution establishes that ratified treaties are the equivalent of Constitutional provisions in Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The US has ratified and signed all 4 Geneva Conventions, making them absolutely binding on our government to follow. The idea of a Supreme Court nominee having written memos contrary to this clear understanding is not likely to sit too well with many members of Congress, though I doubt most of the public will care much. I'm not an expert on the subject, and I haven't been able to find a link to the actual memos themselves, so I haven't had the chance to examine in any great detail whether Gonzales' views were more nuanced and defensible than they have been portrayed in the quotes I've seen. If any of our legal experts who read this wants to weigh in, it would be appreciated.
Update: Dan Ray sent me a link to the actual Gonzales memo. I think what is most fascinating about it is that it was written in response to a request by Colin Powell that the President reconsider his decision not to apply the 3rd Geneva Convention. The State Department's legal counsel had concluded that the Convention should apply to both Taliban and Al Qaeda prisoners. The President, on the advice of DOJ counsel, had already concluded that it did not apply and they could treat them as they wished. Powell had asked the President to reconsider his decision and Gonzales' memo supported the President's initial decision and said there was no need to reconsider.
The other interesting thing about it is that it goes through the arguments for why, even if it could be technically justified, it would be a bad idea not to comply with the Conventions and purports to answer them. Those answers are not terribly convincing, it seems to me. It also notes that Bush's father had wrestled with the same question and determined that the US should follow the Geneva Conventions in any and all armed conflicts regardless of the technical status of a prisoner.
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I'm not an expert on the subject but the VC's Juan Non-Volokh (who probably knows a lot, but who really knows) has discussed this at length when dealing with the case of Berkeley law prof. John Yoo. Link:
http://volokh.com/archives/archive_2004_06_07.shtml#1087173334
There are a lot of links to other discussions on the subject in the post as well.
In an earlier post, I described Gonzales as being too "radioactive," and it was precisely because of this Memorandum, written for the President in January of 2002. The Memorandum does not demonstrate the sort of high-quality legal work product that one would expect from Counsel to the President, and it is perhaps this fact, more than any other, that I found most surprising. The arguments are generally weak and conclusory (e.g., (paraphrasing from memory here) we don't have to observe the Geneva Convention on the Treatment of Prisoners of War because our enemies don't or won't). I certainly would have expected better than that -- frankly, I would demand it from my students.
Nevertheless, you must consider the context. Gonzales was commenting on the DOJ memoranda interpreting the applicability of the Geneva Conventions, and he wrote after the President had already determined not to apply the Convention on Treatment of Prisoners of War to captured Taliban and al Quaida prisoners. When Secretary of State Powell objected, Gonzales wrote the Memorandum. He examined the reasons for and against reconsidering the President's decision, and concluded that the President need not change his position. The generally poor arguments I mentioned above are found in Gonzales's conclusions.
There are two ways to argue this. The side that the Democrats will take if Gonzales is nominated is that Counsel to the President or not, Gonzales was and is bound to uphold the Constitution and the laws of the United States, and his conclusions are in contravention of the law. This is a decent rhetorical argument; whether it would get any legs with the public is doubtful. But you can bet your last dollar that Senator Schumer will be on every evening news show and every talking head show screaming about how the President nominated someone who blatantly disrespects the Constitution and United States law.
The other side of the argument is that as an attorney, Gonzales was simply doing his job: arguing zealously on behalf of his client, the President of the United States. He is ethically bound to do that, and he did not suggest that any laws be broken. On the contrary, he argued that the law simply didn't apply. I think this argument is equally effective, from a rhetorical point of view.
In the end, I agree that there are upsides to a Gonzales nomination: the President knows what he is getting, and he gets to nominate the first Hispanic to the Supreme Court. But I think he'd be right to expect serious fire from the Democrats, and if I'm President Bush and I'm going to hunker down for a tough confirmation fight, I want to fight for a more hard-liner.
Dan wrote:
The other side of the argument is that as an attorney, Gonzales was simply doing his job: arguing zealously on behalf of his client, the President of the United States. He is ethically bound to do that, and he did not suggest that any laws be broken. On the contrary, he argued that the law simply didn't apply. I think this argument is equally effective, from a rhetorical point of view.
I don't think I buy this. The job of White House Counsel is not to defend a client, it is to advise the President on legal matters. At the very least, a memo TO the client cannot be regarded as requiring that he agree with whatever position that client has taken. There is no ethical responsibility on his part here to defend the actions of the President in a memo to the President himself; his ethical responsibility is to give the President the best legal advice he can on the matter. Now, would the public understand the difference between the two obligations? Highly unlikely.
The job of White House Counsel is not to defend a client, it is to advise the President on legal matters. At the very least, a memo TO the client cannot be regarded as requiring that he agree with whatever position that client has taken.
Well, not exactly. Lawyers do many things, and advising a client is only one of them. Sometimes lawyers are called upon to defend a client, sometimes to advise a client, and sometimes to try to figure out a way to give some plausible--even if barely plausible--legal cover for something a client intends to do anyway. You can consider a memorandum directed to the last something of a CYA ("cover your ass") memo, if you like, although it is generally referred to as an "opinion of counsel." In the private sphere, an opinion of counsel can be used by a party for many things, including, for example, to try to mitigate damages or avoid punitive damages in a lawsuit. For example, if a particular law called for increased damages or punitive damages if a party did something that knowingly did something that contravened the law, the party might successfully avoid that by asserting that the opinion of counsel provided a basis for it to believe that it had a legal right to do what it did. With reference to Dan's second-to-last paragraph, the party could have had a legal right to do what it did for one or both of two reasons, (i) what it did was within a law that covered what it did, and (ii) what it did was not covered by the law.
Given what is here in the post and in Dan's comment, it appears that Gonzales's memoranda were in the nature of an "opinion of counsel"--to try to give legal cover for something that the president wanted to do anyway. I'm sure that the president wanted the memoranda for public relations purposes--the likelihood that anyone would prevail in a lawsuit for damages over the matter is remarkably slim--but that is beside the point.
BTW, I have been involved in generating "opinions of counsel" more than a few times, and sometimes it can be very difficult to come up with even a barely plausible argument. On the other hand, a few years ago on a forum there was a discussion of whether the Geneva Conventions regarding prisoners of war would apply to the captured Taliban and al Qaeda. I looked at the texts of the conventions (they are posted through http://www1.umn.edu/humanrts/instree/ainstls1.htm ) and it is not exactly clear that they actually do apply. Whether or not the Bush Administration should, from a political or practical standpoint, apply them anyway is another matter.
raj-
I agree with you that this memo was written as a cover-your-ass document. I was just making the point that in that capacity, he was not ethically required to support the President's position because he was not acting as a defense attorney but as White House legal counsel.
I also agree, based on the little research I've done on it, that there may actually be a decent legal case to be made that the Conventions do not apply to Al Qaeda at least (I think claiming they don't apply to the Taliban is a tougher sell). I don't think Gonzales' opinions on the technical legal questions are totally implausible at all, and I think that, at the very least, there is sufficent room that intelligent people could disagree legitimately on that question. It was his answers to the practical objections to the President's decision that I thought were pretty unconvincing, all in all.
In the end, I don't think that the torture memos would be enough to prevent a Gonzales confirmation for one primary reason - I don't think the public will care much about it, and if the public doesn't care much about it, the politicians won't fight too hard on that issue as there will be little to gain politically from it.
I was just making the point that in that capacity, he was not ethically required to support the President's position because he was not acting as a defense attorney but as White House legal counsel.
I think you misunderstand the role of a lawyer. A lawyer does not necessarily approve of everything that his client does, has done, or wants to do, for which his services are requested. A lawyer is a hired gun. There are cases where the lawyer, because he personally believes that he is incapable--for whatever reason--from providing the client with adequate representation, and in those cases the lawyer must refuse to represent the client. And I will tell you that that can include if the lawyer believes that the client is distasteful--one instance of that occurred with a law firm I was associated with about 20 years ago, and then it was because the female secretaries found the client distasteful.
In this case, it's impossible to tell whether Gonzales actually agreed with the president's position merely from the fact that he wrote the memorandum. As I said, he apparently believed that came up with a (to my mind, barely) plausible argument to provide cover for what the president was going to do anyway. If he had believed that he was unable to come up with even a barely plausible argument, he should have refused to write on the memoranda. In that case, he could have had the memoranda written by others--plausibility is in the eye of the beholder. (Actually, I don't know what his position was in the White House counsel department. If he was head of the department, it is unlikely that he wrote it alone. Indeed, he might not have written any of it, and instead merely signed off on it. Something like a senior partner in a law firm.)
BTW, there really are instances in which a law doesn't apply, even if some people believe that they should. A number of years ago, I was helping out my partner regarding a traffic ticket that he had been awarded. (It wasn't substantial, but I thought it would be fun to do.) He had been ticketed for speeding and for following too close to a fire engine. I knew that it was almost impossible to attack the speeding part, but the "following to close to a fire engine" part looked intriguing, and more important from a financial standpoint. I looked up the relevant statute, and discovered that it prohibited following a fire engine within 300 feet when it was going to an emergency, but was silent about returning from an emergency. I checked the records of the town's fire department and it was clear that, when he was following the fire engine, it had to have been returning to the firehouse from the emergency. We got that part of the ticket expunged on that "technicality." It is interesting to note that, as I was checking the fire department's records, the fire chief had commented that he believed that the law should apply whether the fire engine was going to or from the emergency, and I commented to him that, in that case, he should try to get the law changed. Sometimes, laws really don't apply. Even if some people believe that they should. I realize that this example is relatively trivial in the scheme of things, but it is an example.