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Beware of Texans Bearing Friends

If you can recall back to the days before 14 Senators defused the Nuclear Option, one of the big issues was whether a filibuster of a judicial nomination was "unprecedented." And the key factual question was whether LBJ's nomination of Abe Fortas to move up to chief justice had been filibustered in 1968.

Of course it had, as David Greenberg proved, and various attempts to show that it wasn't really a filibuster were laughable. (They said it wasn't a partisan filibuster -- true, Southern right-wingers were still Democrats back then -- or that it didn't last that long, or that there wasn't proof that Fortas had majority support at the outset, or that it was irrelevant because Fortas had been confirmed as an associate justice and the filibuster blocked his promotion, not his appointment.)

In the end, the right-wing argument for writing the Fortas filibuster out of history came down to this: He was a really, really bad guy. If you believe that, I always thought it should support the case for the filibuster. After all, sometimes a president might nominate a really, really bad guy and his allies in the Senate might be willing to go along with it, unless a truth-telling minority stands in the way.

In fact, Fortas was not a really really bad guy. Among other things, he had been Clarence Gideon's lawyer in the pro bono case that established our right to legal representation. He did exercise what we would now call poor judgement in accepting payments from a foundation run by a dubious character, but that was not known at the time of the filibuster.

But he did come to a sad end, and his reputation is not what it should be. It is not the financial shenanigans that stained Fortas's reputation, but the fact that he could not make himself independent from his career patron, LBJ. As Laura Kalman's biography of Fortas showed, the far more disturbing aspect of his tenure on the Court was that he continued to provide personal and political advice to the president while sitting on the court. This deeply compromises the independence of the Court.

Yesterday's news that Bush was asking conservatives to back off from attacking Alberto Gonzales -- "my friend" -- and the clear indication that Bush strongly wants to appoint Gonzales to the Court, should bring Fortas to mind. In fact, when is the last time a president appointed someone to the Court with whom he had such a close personal relationship? Clinton hardly knew Breyer or Ginsburg; Reagan hardly knew Bork or O'Connor and probably not Kennedy, etc. The last is certainly Fortas.

(I mentioned this question to a distinguished attorney friend who I ran into on the subway this morning, and he immediately reeled off the names of three Truman appointees who were congressional cronies, one of whom I'd never heard of, but agreed that Fortas, like Gonzalez, was highly unusual in the degree to which his career was intertwined with the president's. And unlike Fortas, Gonzalez's entire career is dependent on the president.)

When LBJ tried to move Fortas up to Chief Justice, he tried to appoint a Texas protege, Rep. Homer Thornberry -- who I think held LBJ's old seat in the House -- to replace him on the Court.

So I guess it's a Texas thing.

And this is a reminder that, above all else, independence is an essential characteristic of any judge and a Supreme Court justice in particular.  The torture memos are bad in themselves, but they are also evidence that when Gonzalez had an opportunity to exercise some independence, by saying that there are values more important than giving the executive branch a shaky legal rationale to do what it wants to do, he did not exercise it.

There should be three concerns with a Supreme Court nomination: Ideology (is the nominee, who will be a conservative, within the conservative mainstream or beyond it); qualifications; and independence. That means independence from the president certainly, but it also means independence from some of the other political forces that will try to shape these nominations to their liking. Let's not forget about the third.

Posted by Mark Schmitt on July 8, 2005 | Permalink


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Gonzalez is undoubtalby one of Bush's guys, to the point where he's practically family. But more than that, I think, Bush wants Gonzalez on the Court not because of his views on abortion, but because he wants to secure his legacy in two areas - the Establishment Clause, and the war powers of the executive. Bush knows that Gonzalez will uphold any future challenges to the torture policy and the faith-based initiative. And I think that trumps the abortion issue for Bush.

Posted by: Jon | Jul 8, 2005 6:18:41 PM

It says a lot about where we are that many Dems, including so-called "progressives" are cheering on Bush to appoint to the Supreme Court a crony who considers the Geneva Convention "Quaint!" Well it was a nice republic while it lasted.

Posted by: richard lo cicero | Jul 8, 2005 9:40:12 PM

Fortas, like Gonzalez, was highly unusual in the degree to which his career was intertwined with the president's.

Hey, that's a good point. It is highly unusual. Some might even say that the circumstances were "extraordinary."

Posted by: Kagro X | Jul 8, 2005 10:58:49 PM

It may be true that Gonzalez's defining characteristic is his closeness to Bush. I suppose we can assume that he will be predictably loyal. But Bush will be gone in a couple years. Gonzalez will sit for a couple decades. What next?

Posted by: buckets | Jul 9, 2005 12:21:50 AM

The torture memos are bad in themselves, but they are also evidence that when Gonzalez had an opportunity to exercise some independence, by saying that there are values more important than giving the executive branch a shaky legal rationale to do what it wants to do, he did not exercise it.

Remember, at the time, Gonzalez was his legal counsel, not attorney general. He was simply doing his job, under the ethics of his profession. If you cast aspersion on Gonzalez for the terror memos (which is all partisan politics) you are casting aspersion on the entire legal profession. Also, Gonzalez is pretty much the best case scenario and I think if Dems are somehow able to successfully defeat him if he is nominated, you will almost certainly get a much more conservative appointed. Its not like Bush is going to nominate John Paul Stevens, Jr. or William O. Douglas, Jr. to the Court under any circumstance, so forget about, take what you can get.

Also, Mark, please post here more, I love TPMCafe and understand your obligation, but I think your analysis here is usually better.

Posted by: Joe Smith | Jul 9, 2005 1:25:46 AM

If you cast aspersion on Gonzalez for the terror memos (which is all partisan politics) you are casting aspersion on the entire legal profession.

Um, speaking as a lawyer, the technical term for that assertion is "utter crap". I (and pretty much every other lawyer I know) often counsel clients that while there may technically be legal extremes to which they could push their actions, it would be wrong to do so.

And Gonzalez (and more importantly, the rest of the people involved in writing and endorsing the torture memos, particularly the DoD and OLC attorneys) were being paid by our tax dollars to represent us, not to advance a particular political agenda involving the imperial presidency and the pro-torture crowd. While Gonzalez may have been the attorney to the Office of the President, that's a far cry from being George Bush's private attorney. He represents the Office of the President, which has at least some fealty to common decency and the rule of law.

BTW, I would argue the same thing with respect to even private counsel, but the case is much stronger for someone counseling a public officer on the public's dime.

Posted by: paperwight | Jul 9, 2005 12:33:09 PM

What buckets said. Once he's a Supreme, Gonzalez isn't beholden to anyone anymore. Maybe he could finally reveal what he really thinks about things, and maybe he'd surprise his mentor.

Posted by: David Weigel | Jul 9, 2005 10:24:35 PM

What a well-written post... I agree with the last comment, however, it may be that whoever Bush nominates could very well surprise. I mean, who wouldn't act differently about everything if they held a job they couldn't get fired from.

I will look up Fortas and put something up on http://bztv.typepad.com/instanthistory/

Posted by: BZTV | Jul 9, 2005 11:00:05 PM

I can't help pointing out that the optimistic case for Gonzalez is the belief or hope that he is a whore. He has always done whatever his John wanted, but, once on the Supreme Court, with no John to please, who knows? That's what it has come to.

Posted by: C.J.Colucci | Jul 10, 2005 11:09:21 AM

With any luck we won't have to be writing about him for the next month, but if we do:

His name is Alberto Gonzales with an S. The damned Speedy cartoon has infected all our brains, yes, but try to resist.


Mark, it wouldn't hurt for you to correct your post. Commenters follow along because they assume you've got it right.

Posted by: Nell | Jul 10, 2005 10:43:55 PM

There are so many qualified possible nominees that the only reason the president forces a Bolton through the process of U.N. ambassador or Gonzales for SCOTUS is because it is his decision and Democrats need to accept his decision, his mandate and stop playing partisan politics. IMHO, that is arrogance. It isn't that Bolton or Gonzales are the most qualified bar none of every American available, it is because I made this decision and that is that.

Posted by: niteskolar | Jul 12, 2005 1:54:43 PM

"at the time, Gonzalez was his legal counsel, not attorney general. He was simply doing his job, under the ethics of his profession. If you cast aspersion on Gonzalez for the terror memos (which is all partisan politics) you are casting aspersion on the entire legal profession."

Wrong on two counnts.

First the ethical obligation of an attorney to his client requires that the attorney give the client objective advice, not simply tell the client what the client wants to hear. Objectively, the advice given by Gonzales was glaringly wrong--for example, Gonzales took a positon on the scope of the president's commander-in-chief powers that was flatly contrary to the leading Supreme Court decision on the issue (rejecting Truman's attempted takeover of the steel industry to stop a strike)--and Gonzales never even mentioned that decision.

Second, the White House counsel is not the president's attorney--that was settled back in the Clinton adminstration, when Clinton's attempt to use the attorney-client privilege to prevent testimony by the White House counsel was rejected.

Posted by: rea | Jul 14, 2005 9:38:34 AM

With rumors swirling that President Bush has selected Edith Brown Clement of the conservative 5th Circuit Court of Appeals to be replace Sandra Day O'Connor on the Supreme Court, Democrats can get to down the business of planning their response.

Their response should be to vote to confirm Judge Clement.

Why? In a nutshell, Democrats should grudgingly accept Clement because she simply does not cross the threshhold of unsuitability...

For more, see:

"Supreme Limitations for Democrats"

Posted by: Jon | Jul 19, 2005 4:04:31 PM