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White House counsel Alberto Gonzales — a former justice on the Texas Supreme Court — was in Dallas on Sept. 27 to speak at the Federal Bar Association convention and to students at Southern Methodist University Dedman School of Law. He spoke with Texas Lawyer senior reporter John Council about helping President George W. Bush craft a congressional resolution concerning Iraq, the rejection of Texas Supreme Court Justice Priscilla Owen’s nomination to the 5th U.S. Circuit Court of Appeals by the Senate Judiciary Committee, and whether he may be a candidate for the U.S. Supreme Court. What follows has been edited for length and style. Texas Lawyer: You’ve had this job for two years. Has it turned out the way you thought it would? Gonzales: No, of course not. This biggest difference in the job now, of course, is how we’ve been impacted by Sept. 11. No one could have anticipated that. The rest of the job is a lot like what I did as general counsel to the governor. Obviously it’s a magnitude above in terms of pressure scrutiny. I talked to previous White House counsel before I started the job, and I read a lot about what the White House counsel does. I had some expectations. TL: Talk a little about whether the president needs congressional approval to take action against Iraq. Gonzales: It’s a moot point. He’s decided he’s going to get it. He’s going to go to Congress and get authorization. TL: What was your legal advice to him about that? Gonzales: We think there are legal arguments to make that it’s not necessary to do this and that he can rely on the powers of the [U.S.] Constitution. But again, I think the focus should be on the fact that he decided to go to Congress and seek authorization. TL: Did you feel it necessary to narrow the resolution to make it acceptable to Congress? Gonzales: We worked very hard to try to address the concerns raised in the negotiations. It was a very productive meeting. We listened carefully to concerns raised by certain members, and we tried to address them the best way we could but at the same time providing the flexibility we felt was necessary to deal with the threat posed by Iraq. So I’m optimistic that this will be acceptable. But you know we have not yet met after the document has gone up. So I’m sure there will be some additional discussions and perhaps some additional give and take. TL: When you give the president legal advice, do you give him pure legal advice or do you also take political considerations into account? Gonzales: I don’t know if I’d call it political considerations. I tell him what I think; whether or not I think this would be kind of stupid or silly or not very wise or this may hurt. I mean, I don’t view it in terms of politics. I do worry, as do many of the other advisers, about his legacy. And the fact that something may be lawful doesn’t mean you ought to do it. How will he be judged 50 years from now? I do think about that. I worry about that. And that weighs in, in terms of my recommendations once I step outside the box that is purely legal considerations. TL: Moving over to political nominations, do you think Owen will be renominated to the 5th Circuit next year? Gonzales: That’s the president’s decision to make. If the Senate were to be recaptured by the Republicans, obviously that’s a possibility. Obviously he believes she should be on the 5th Circuit. TL: What did you make of the loud discussion about the Jane Doe 2 opinion that pointed out that you disagreed with her about Texas’ abortion parental notification law and used the words “judicial extremism?” Gonzales: I think it was unfortunate. Judges disagree all of the time. Even judges who approach cases the same way are going to come out with different results sometimes. I mean [U.S. Supreme Court Justice Antonin] Scalia and [U.S. Supreme Court Justice Clarence] Thomas disagree all of the time. [U.S. Supreme Court Justice William] Brennan and [U.S. Supreme Court Justice Thurgood] Marshall disagreed. Even though they approach the law in the same fashion, they sometimes disagree. And the fact that I disagreed with Justice Owen in a case doesn’t mean that I somehow think she’s unfit to serve. It was frustrating because I would keep saying that to people who would ask me, and I would write about it. I felt I should somehow dispel the notion that I somehow felt she was unfit to be on the 5th Circuit because [it's] quite the contrary. I think she’s very well qualified and would make an excellent judge on the 5th Circuit. TL: Do you think that nomination hearings for circuit judges have become almost akin to U.S. Supreme Court nominations? Gonzales: Well, of course I’ve never experienced a Supreme Court nomination in the counsel’s office so it’s hard for me to say. But I’m told it appears that that’s what these are becoming. I’m also told that these are viewed as almost warm-up acts for Supreme Court fights. So if that’s true, that’s an indication that whoever the president nominates is going to go through a fairly contentious confirmation process. And let me say it is appropriate for the Congress. They have an obligation in the Constitution to advise and consent, and I don’t begrudge them examining the qualifications and character of our nominees. That’s fair, and it’s appropriate; they ought to be doing that. I just wonder perhaps if there’s something else going on here. TL: Is there any way for you to minimize that? Gonzales: I don’t know. Again, it’s frustrating. There’s a lot of bitterness on the Hill at the actions of certain Republicans stalling [former] President Clinton’s nominees. Some people waited years and years before getting a hearing. And there’s still a lot of bitterness. Some people believe that the only reason that President Bush fills a vacancy is because of the actions of Republican senators. And they don’t believe that’s fair. And so this president is burdened with that bitterness, and we’re just having to deal with it and work through it. TL: Is it to the point where you have to go through every appointment and read every opinion that a justice has written in his or her career? Gonzales: Well, I think in some ways that’s probably the best indicator of the kind of job someone is going to do on a bench as a judge, if they’ve been a judge before, is go back and look at those opinions. I think more than anything else that’s the indicator. And so I don’t have a problem going back and looking at someone’s prior work. Until you’ve actually been there as a judge and had to weigh the law and weigh the facts, I’m not sure you really know how you’re going to do that job. And so I don’t have a problem going back and looking at opinions. That may be the most important indicator of how someone is going to do … as a federal judge. TL: I guess in Justice Owen’s situation it was almost one opinion that held her up. Gonzales: That’s unfortunate because I don’t think it’s a true measure of the kind of person she is and the kind of judge that she is. TL: Would you submit yourself to this process since you’ve been mentioned as a possible U.S. Supreme Court candidate? Gonzales: I wouldn’t speculate on that. It’s tough, and anyone would have to wonder, “Why would I want to put myself or my family [through that]?” … It’s hard enough on the family. You could easily see someone wondering, “Do I really want to do this?” TL: Would you? Gonzales: Really want to go through that process? TL: Would you take your chances? Gonzales: Would I take my chances? I really don’t want to answer that question.

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