The New York Times reports that conservative activists are lining up in opposition to Alberto Gonzales as a replacement for Justice O’Connor. Gonzales is the one potential nominee opposed by both conservative and liberal activists. He’s also the potential nominee who, in my judgment, most easily would be confirmed by the Senate.
Gonzales’ role in the Priscilla Owen confirmation battle raises an issue that I haven’t seen flagged yet. You probably recall that the left tried to use statements made by Gonzales while he was a Texas Supreme Court Justice against Owen, his colleague on that court. Specifically, in a case involving parental notification of abortions, Gonzales was said to have blasted Owen for judicial activism that she allegedly manifested in her dissenting opinion. As we showed, the claim that Gonzales had blasted Owen was almost certainly false. A reading of the opinions in the case showed that Gonzales’ criticism was directed at another judge, Justice Hecht, who had written a different dissent, and also possibly at Justice Abbott, who had written yet another.
But here’s the curious thing, which I didn’t notice until the latter stages of the Owen wars. During his confirmation hearing, Gonzales was asked about his charge of judicial activism in his opinion in the parental notification case. The question was a “softball” from Senator Brownback designed to assist Owen by rebutting the notion that Gonzales had called her an activist. But instead of stating that he was criticizing Justice Hecht, as seemed plainly to have been the case, Gonzales answered as follows:
My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht; it was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used in terms of having a minor not totally informed or well informed but sufficiently well informed and the structure of the act, it was in my judgment that the legislature did intend the judicial bypasses to be real. And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case. If someone like Judge Owen in that case reached a different conclusion about what the legislature intended, it would have been perfectly reasonable for her to reach a different outcome. But as to the words that have been used as a sword against Judge Owen, let me just say that those words were related to me in terms of my interpretation of what the legislature intended, again, through the words of the statute and the way that the judicial bypass procedure would actually operate in practice.
I may be missing something, but this answer strikes me as goofy at best. It might be refreshing, though, to have a Supreme Court Justice who writes opinions with critical comments directed at himself.