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Friday, July 08, 2005

Gonzales and recusal

(Initial disclaimer: I have zero inside information and don't wish to get into the speculation that's whipping around the cable news networks and the internet over whether Chief Justice Rehnquist and/or Associate Justices Stevens and Ginsburg might be about to resign.)

Ed Whelan has been writing a series of posts on NRO's Bench Memos blog to argue that a — or perhaps in his view "the" — key reason Dubya shouldn't nominate Attorney General Alberto Gonzales to a seat on the Supreme Court is that by virtue of his service as AG, Gonzales would have to recuse himself from many, many important cases in which he's been involved on behalf of the DoJ and the Bush Administration. His newest full-fledged op-ed on NRO, and a follow-up post on the blog, feature Mr. Whelan's fairly technical debate with an unnamed (but obviously very bright) correspondent over just how often a hypothetical Justice Gonzales would have to recuse himself under the relevant statute.

I'm not sure who has the better of the argument over the statute. And although I have some reservations about a Gonzales nomination and see no shortage of other appealing candidates, I definitely don't know as much about his heart and his mind and his character as Dubya does.  I actually give more than just lip service to the idea that a President (any President) ought to be given a whole lot of discretion in making these choices. Based on that, I'll enthusiastically support a Gonzales nomination if that's indeed who Dubya picks.

But I do have this to say in particular about Mr. Whelan's recusal arguments: Whether it's in a few pending and impending cases, or in a whole lot, it's reasonably certain that a Justice Gonzales would have to recuse himself in at least some cases. But this man (d/o/b 4 Aug 1955) is still a bit shy of fifty; it's not inconceivable or even unlikely that he could be on the Court for twenty, twenty-five, even thirty or more years. I'm not saying that potential recusal problems are absolutely meaningless. But they'd be in a limited number of cases, and the problems would essentially be gone in a couple or three years. Even if Mr. Whelan's interpretation of the statute is correct and the percentage during those two or three years is significant, making this a disqualifying factor all by itself would be very short-sighted.

Mr. Whelan's almost certainly a smarter lawyer than me, but I'm older than him. And as an old fogey, I confidently proclaim that what's on the Court's current plate, or what's likely to be added to it in the next year or two or three, just isn't what this is mostly about. Dubya's drafting for the franchise — not for the next couple of seasons — and you don't strike a long-term prospect from your draft list over a twisted ankle that might hobble him for a few games.

Posted by Beldar at 09:34 PM in Law (2006 & earlier) | Permalink

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Comments

(1) Jim Rhoads (vnjagvet) made the following comment | Jul 8, 2005 10:12:54 PM | Permalink

Beldar:

As an experienced Texas litigator (my assessment from over one year's exposure to your blogging excellence, which has earned my respect and admiration) what is your assessment of General Gonzales' performance and reputation (a) as an attorney (b) as a Texas Supreme Court jurist? Would you share either on the Blog or privately on the email provided?

(2) Patterico made the following comment | Jul 8, 2005 11:00:49 PM | Permalink

Beldar,

Having read you for quite some time now, I have a pretty good idea what your philosophy of jurisprudence is. And it's pretty similar to mine.

And it's been [expletive deleted]ed up for some time now, and a Justice Gonzales is certain to continue [expletive deleted]ing it up -- for years to come, as you point out.

So I'm almost shocked that you seem so upbeat about the prospect of the President nominating someone who is going to be such a [expletive deleted]ing disaster for our constitutional interpretation.

(3) antimedia made the following comment | Jul 9, 2005 12:23:36 AM | Permalink

Beldar, I oppose Gonzales for one reason. He stated, on the record, "The Constitution is what the Supreme Court says it is."

For me, that is a disqualifying factor for ANY candidate for the Court.

(4) Beldar made the following comment | Jul 9, 2005 12:37:18 AM | Permalink

In case it's not obvious, my distinguished friend and colleague, the Right Honorable Gentleman from California, deleted his own expletives above.

Mr. Rhodes, your question is flattering and I thank you for it. But I'm mostly in a "withholding comments, negative or positive"-mode for now. I'll certainly share at more length my reactions to any nominee when announced. There's a long list of names that have been mentioned and whom I'd enthusiastically support if they were nominated, and while I know a whole lot more about some of them than I do others, I just prefer not to get into any sort of comparative discussion, nor a deeper discussion of any particular individuals. If Dubya wants my private input, though, I'll dash up to Crawford on a moment's notice. I'll pay for my own gas, for that matter, and if he wants I'll bring a few orders of ribs from Poppy's favorite barbecue joint in Houston, Otto's on Memorial.

(5) Jim Rhoads (vnjagvet) made the following comment | Jul 9, 2005 12:04:10 PM | Permalink

Prudent, Beldar, very prudent. I realize you are still practicing. I am trying to get a handle on why there is such a negative reaction from the right. As a casual observer of Gonzales' performance thus far in his positions in the Executive Branch, I haven't detected anything that would cause me to have such a strong negative reaction.

Then again, I am not very strongly invested in ideology.

Anyhow, thanks for the response.

(6) Patterico made the following comment | Jul 9, 2005 2:40:31 PM | Permalink

So if I delete my own expletives I don't get a response?

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