The Nine [147]
At the last minute, though, with the Senate at the nuclear brink, a compromise put off the conflagration, at least for the time being. A bipartisan group of fourteen moderate Senators, meeting in Senator John McCain’s office on May 23, 2005, brokered a deal where some of Bush’s long-delayed nominees (like Owen) would finally get their up or down votes and thus be confirmed. In return, the Republicans in the group agreed not to change the Senate’s rules—yet. Under the deal, the so-called Gang of 14 announced jointly that “nominees should only be filibustered under extraordinary circumstances,” a term that was carefully left undefined.
The ultimate battle had been postponed, but the political message was unmistakable—that the confirmation of very conservative judges was a central concern of the Republican Party. The compromise essentially left the moderates of both parties in charge of determining whether a filibuster could ever be mounted; since these senators generally disdained filibusters, and even the Democrats among them cared less about thwarting Bush’s judicial agenda, the compromise amounted to a victory for the conservatives.
Five weeks later, O’Connor announced her retirement. By that point, it was clear that Arlen Specter and other old-timers were reading an obsolete script for modern confirmation battles. In 1987, Robert Bork was defeated because he was too conservative for a Democratic Senate, and Specter still believed that the current Senate might vote down a nominee who was too conservative. In truth, the bigger risk for a George W. Bush nominee was if he or she was not conservative enough. To put it another way, Bork couldn’t be confirmed because he opposed Roe v. Wade; in 2005, a nominee couldn’t be selected unless he or she opposed Roe v. Wade.
O’Connor submitted her resignation on Friday, July 1, just before the Fourth of July holiday weekend. By the beginning of the next workweek, the conservative base started making demands about her replacement. The first: anyone except Alberto Gonzales.
From the moment Gonzales had come to Washington from Austin, it had been more or less assumed that Bush would appoint him to the Supreme Court. His story could hardly be more inspiring. The second of eight children of a construction worker and a homemaker, the grandson of Mexican immigrants, Gonzales was raised in a Texas town whose name matched his family’s circumstances—Humble. He enlisted in the air force out of high school, graduated from Rice University, and earned a degree from Harvard Law School in 1982. Gonzales became a partner in the prominent Houston law firm of Vinson & Elkins, where he worked until Governor Bush named him his general counsel in 1994. Three years later, Bush appointed him secretary of state, and in 1999 he named Gonzales a justice of the Texas Supreme Court. Gonzales served for less than two years, because Bush took him to Washington as his first White House counsel. After his reelection, the president named Gonzales the nation’s eightieth attorney general and first Hispanic to hold the job. Gonzales was only fifty years old in 2005, the perfect age to begin a long career as a justice. He would, of course, have been the first Hispanic, a major milestone for an ethnic group that Bush had spent much of his political career courting. In addition, on a personal level, Bush adored Gonzales, who was by 2005 one of his closest friends in the government.
The clear political and personal logic for a Gonzales appointment meant that leading conservatives felt they had to move swiftly to forestall his nomination. The attacks began early the next week, in the pages of the Washington Times, a sort of house organ of the conservative movement (owned by the Reverend Sun Myung Moon). Then, Phyllis Schlafly, founder of Eagle Forum, a conservative activist group, said, “I don’t see any paper trail that convinces me he is somebody who is a strong constitutionalist.” Similarly unsupported comments came