Marjorie Cohn: Payback Time?

"It is time to make good on those campaign promises, Mr. President. You have been given a mandate to end abortion in our nation by the American people who cast their votes for you."
-- Troy Newman, president of Operation Rescue, an anti-abortion group

"Al Gonzales is a great friend of mine. I'm the kind of person, when a friend gets attacked, I don't like it."
-- George W. Bush, responding to right-wing criticism of Alberto Gonzales

With the unexpected resignation of Sandra Day O'Connor, George Bush finds himself on the horns of a dilemma. After his 2000 campaign pledge to appoint justices in the mold of Antonin Scalia and Clarence Thomas, Bush garnered the crucial support of right-wing evangelical Christians. Mobilizing in thousands of churches across the country, they provided the foot soldiers and the votes to elect and re-elect Bush. Their eyes were on the big prize - overturning Roe v. Wade, to stop the "holocaust" of abortion. The Supreme Court vacancy they've prepared for so long and hard has finally materialized, and the right-wing fundies are calling in their chits.

However, if Bush succumbs to pressure from his right-wing religious base and nominates an anti-abortion extremist, he is in for the mother of all confirmation battles. Pro-choice advocates recognize the significance of the Supreme Court seat that Justice O'Connor has occupied. They also are ready to rumble.

O'Connor was a swing vote on the abortion issue, but she ultimately voted to uphold Roe v. Wade. In the event Bush were to replace O'Connor with a justice who would vote to overrule Roe, that would not necessarily tip the balance sufficiently to outlaw abortion. Assuming William Rehnquist remains on the Court or is replaced with an anti-choice justice, there would be four solid pro-choice votes (John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer) and four solid anti-choice votes (Scalia, Thomas and the two new justices, or Rehnquist and the new justice). Anthony Kennedy swings both ways. Although personally opposed to abortion, he voted to affirm Roe. So, until the 85-year-old Stevens, or Ginsburg (who is not in good health) leave the Court, Roe will remain the law of the land - for now.

If Rehnquist steps down before the Court's new term begins, that would alter the confirmation equation. While the Christian right would be gunning for two anti-Roe justices, the Democrats are more likely to accept a justice like Rehnquist if the other were more moderate, like O'Connor.

And Bush's quandary is further complicated by his own situation. He no longer faces re-election and would like to focus on his legacy. Bush the politician would love to reward a loyal friend with a plum appointment. Long eager to appoint the first Hispanic to the Supreme Court, this is his chance. There is a Hispanic who would satisfy the religious right, the anti-choice Emilio Garza, touted by evangelical Hispanic groups. Bush, however, would prefer his dear friend Attorney General Alberto Gonzales, whom he affectionately calls "mi abogado" (my lawyer). They go way back - to the days when Texas Governor George W. Bush turned to Gonzales for advice on legal issues such as whether the governor should pardon prisoners facing the death penalty. Gonzales never met a death row inmate he didn't want to execute.

As soon as O'Connor stepped down, right-wing interest groups, which have raised millions to eliminate a woman's right to choice, took aim at Gonzales. Never mind that Gonzales champions policies that conservatives love. He was chief architect of the memos that would allow the United States to torture prisoners in the name of Bush's "war on terror." And Gonzales' zealous support for the death penalty in Texas led to execution in nearly every case that came before him.

But abortion is the trump card for the religious right, and Gonzales does not satisfy their requirements. When Gonzales sat on the Texas Supreme Court, he voted to overturn a law that would require parental notification before a minor could have an abortion. Even though he voted the opposite way in a similar case, the right-wing evangelicals allow for no wiggle room on this subject.

Although both the right and the left would oppose a Gonzales nomination, ironically, he would be confirmed without a major conflagration. Senators already aired most of the contentious issues during Gonzales's attorney general confirmation process. The filibuster and the nuclear option would not likely be used if Bush nominates Gonzales to fill O'Connor's seat.

A Gonzales nomination would enrage right-wing fundamentalists, but could move many Latino voters into the Republican camp for the midterm elections.

Yesterday, once again mouthing his mantra that he will use "no litmus test" on abortion for a Supreme Court nominee, Bush added that he will "try to assess their character, their interests." These may be buzz words for a Gonzales nomination. Bush knows Gonzales' character and interests well. And he likes them.

Both the White House and the Senate Republican leadership are trying to rein in the right-wing hyperbole against Alberto Gonzales. "The extremism of language, if there is to be any, should be demonstrably on the other side," warned Eric Ueland, chief of staff to Senate Majority Leader Bill Frist. "The hysteria and the foaming at the mouth ought to come from the left."

Conversely, Nation columnist David Corn warns progressives to avoid labeling a Bush choice "extremist," and instead urge confirmation of a judge who won't eliminate or curtail abortion rights, favor corporate polluters over consumers, or restrict the federal government's role in advancing social justice.

With so much at stake, we must exhort our senators to demand a commitment from the nominee to put constitutional rights above corporate and conservative interests. This means opposing Alberto Gonzales for his torture and death penalty policies, as well as opposing any nominee who would gut a woman's right to make decisions about her own health and life without governmental interference.

Marjorie Cohn, is a contributing editor to t r u t h o u t, a professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists.

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