Balkinization: The Gonzales Nomination

The Gonzales Nomination

There are two reasons why Bush might have nominated Gonzales to be Attorney General. The first is that he is grooming him for a further appointment to the Supreme Court. The second is that he never plans to appoint him but wants to send a strong signal that he might.

Gonzales is not a doctrinaire conservative. He is a loyal servant and friend to the President. He is a team player. It is unclear what his deepest moral convictions are. But however fine a fellow he is, he has done something that is, in my mind, inexcusable. He commissioned and put his name on a series of despicable legal memos that justified torture and prisoner abuse and that tried to avoid America's obligations under international law. In ordinary times, this would in itself be disqualifying. But, alas, these are not ordinary times.

It is time for those who think the Bush Administration has gone too far to stand up to the President, to make the legal case against his Administration's policies and appointments. For years conservatives railed against judicial activism. It is time for liberals to start railing against government officials-- including judges-- who show disrespect for basic Rule of Law values, who flout basic protections of American constitutional law and international human rights law, and who seek to concentate ever greater power in an unaccountable executive.

Even if (and especially if) Gonzales is confirmed, it is vitally important to make these points loudly and often. Liberals must stand for something other than the correctness of Roe v. Wade. There are important constitutional, legal and democratic values at stake in the next four years. They have been repeatedly sacrificed by this Administation, in its fetish for secrecy and unaccountability and its endless thirst for unreviewable power. And the President seems to have taken from his victory at the polls the belief that he is entitled to seize even more power and cut even more corners. It is important to begin making the case before the American people that our Constitution, our democracy, and the Rule of Law itself have been placed in jeopardy-- not by the decisions of activist judges in Massachusetts, but by overweening and ambitious members of the Bush Administration-- and that the legal and constitutional values we hold dear must be preserved and defended vigorously or they will slowly but surely be dissipated. Daring to ask why a former judge who has defended the President's right to torture and mistreat prisoners in violation of international law should be made the nation's chief law enforcement officer is a good place to start.

Posted 5:59 PM by JB [link]

Comments:

This idealistic proclaimation about the "rule of law" might suprise some of the founders those who speak of it honor so much. Pragmatism has always been an important part of law, so yes, use of it does not violate the "rule of law." I don't know if Balkin is a kneejerk supporter of Dworkin's philosophy either. Also, ironically, Justice Thomas in Hamdi might just suggest Scalia is overly idealistic there as well.

As to Roe, well that's a tiring inclusion, as if someone who is wrong on Roe cannot be correct on opposition to torture memoranda. Also, even those against Roe per se, can support the right at its heart on other grounds, as many quite loyal to the Constitution easily can be. (e.g. equal protection)

# posted by

Joe : 7:34 AM

Professor Balkin,

I haven't followed the Gonzales nomination in great detail, but some assertions made both here and in Slate have made me wonder about a few things.

First, I am wondering about the charge that Gonzales tried to avoid America's obligations under international law. Is it possible that Gonzales is simply applying a different, legitimate view of the proper role of international law? I'm not a fan of the Bradley/Goldsmith position myself, but I also think that Bradley/Goldsmith (while I disagree with is) is a reasonable and intellectually consistent position. Is it possible that Gonzales's decisionmaking in the international law area stem from an attachment to Bradley/Goldsmith views on international law rather than an attachment to Henkin views?

My second question is how Gonzales's actions threaten the Rule of Law, and in what sense you are using the term. At one point you use the term "basic Rule of Law values." This phrase could mean any number of things, but common conceptions of the basic rule of law, depending on how they are framed, generally require that laws be knowable, performable, and equally applicable. It's not entirely clear from your reasoning how Gonzales's actions would violate a basic rule of law. (And to the extent that you are importing further content into your conception of the Rule of Law, do you open yourself up to criticism that your version of the Rule of Law is not the basic, widely accepted version?) If I may ask, what is your conception of the Rule of Law as discussed here, and how does Gonzales violate it?

I'm not disagreeing with you (yet) on either of these points, but I would like to see further information, if possible, since each of these seems to raise some potential questions.

Thank you.

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