Justice juggling

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The prenomination battle over who President Bush should name to the Supreme Court contains enough irony and internal political warfare to fill a Tolstoy novel.

Initially, the story leading up to Mr. Bush's first nomination to that court was expected to be an all-out war by liberal Democrats who know the next Republican appointment will push the nine-judge panel in a decidedly conservative direction. Indeed, Sen. Chuck Schumer, New York Democrat, was overheard on an Amtrak Metroliner last week saying he and his liberal allies were preparing "to go to war" to block whomever Mr. Bush chooses.

Surprisingly, while Mr. Schumer and an army of angry activists beat their war drums, other Democratic liberals urged their party to hold their fire until they know who will be the nominee. More surprisingly, the Senate's No. 1 Democrat seemed to be all but endorsing Attorney General Alberto R. Gonzales.

Vermont Sen. Patrick Leahy, a leader of the Senate Democrats' liberal bloc, who has been fighting Mr. Bush's judicial nominees for the past 4 years, suddenly was urging fellow liberals to cool it for now and tone down their rhetoric.

And Senate Democratic Leader Harry Reid said he thinks Mr. Gonzales "is qualified" to sit on the court. "He's attorney general of the United States and a former Texas judge." Mr. Reid, of course, voted against Mr. Gonzales to run the Justice Department, but apparently he now thinks the Supreme Court is different matter -- especially after millions of Hispanic voters supported Mr. Bush over Democrat John Kerry last year.

But there was even more division over on the Republican side, where the GOP's powerful social conservative armies were up in arms over the thought of George W. Bush putting Mr. Gonzales -- his longtime friend, political ally and confidante -- on the highest court in the land.

Mr. Gonzales is essentially a very conservative guy. He and Mr. Bush are joined at the hip in their intense opposition to judges who like to legislate from the bench. He is as tough as can be on national security issues and proved it in his post-September 11, 2001, memoranda on how to deal with the terrorist threat.

On social, especially right-to-life, issues no president has been tougher or more effective than Mr. Bush in advancing the pro-life agenda, from supporting a partial-birth abortion ban to opposing cloned stem-cell research. Alberto Gonzales personally opposes abortion.

But social conservatives fear Mr. Gonzales is a little soft on right-to-life issues, though they can't point to any written judicial decisions to suggest he would overturn Roe v. Wade, a ruling his predecessor, John Ashcroft -- a hero in the social conservative movement -- said was "settled law."

However, they do point to a 2000 abortion case opinion he wrote when on the Texas high court, a decision that overturned a lower court ruling in which a teenage girl sought a waiver from the state's parental-notification law.

Ironically, Mr. Gonzales based his opinion in the case on his belief he could not rewrite the law to suit his own views. In his opinion, he said "to construe the Parental Notification Act so narrowly as to eliminate bypasses, or create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism."

"I cannot rewrite the statute to make parental rights absolute, or virtually absolute, particularly when, as here, the Legislature has elected not to do so," he said.

Most bothersome for social conservatives was Mr. Gonzales' answer at a conservative forum last year where he was asked if existing legal precedent would prevail in reconsidering the 1973 landmark case that established abortion rights. He said "yes."

Right now, Mr. Gonzales is on Mr. Bush's short list, no doubt about it. If chosen, Mr. Gonzales would be the first Hispanic jurist named to the court, a move that could help the Republicans make even deeper inroads among Hispanic voters. Mr. Bush won a little more than 40 percent of their vote last year. Karl Rove thinks the GOP can push that number even higher by reaching out to this huge and growing voting bloc -- which is overwhelmingly pro-life, by the way.

But has the intense opposition from social conservatives killed any and all chances Mr. Bush will still nominate this once dirt-poor son of Mexican immigrants? Ironically, their opposition may have strengthened Mr. Gonzales' position all the more. Mr. Bush sent that signal last week: "All of a sudden this fellow, who is a good person, is under fire. I don't like it at all."

His robust defense of Mr. Gonzales has put many top social conservatives in a very tough position where some may sit this one out. "I can't support him because of my constituency, and I can't oppose him because I can't hurt this presidency," social conservative leader Paul Weyrich said last week.

Stay tuned.

Donald Lambro, chief political correspondent of The Washington Times, is a nationally syndicated columnist.