The Nine [149]
The answer was straightforward. In 2000, during his brief career on the Texas Supreme Court, Gonzales had participated in a series of cases known as In re Jane Doe. Bush, then governor, had signed a law that required minors to obtain the consent of their parents if they wanted an abortion. As required by United States Supreme Court precedent, the law contained an exception that allowed some girls—abuse victims, for example—to proceed with the permission of a judge rather than a parent. Interpreting this so-called judicial bypass provision, Gonzales joined a 6–3 majority on the court in allowing a seventeen-year-old to go to a judge rather than her parents. The conclusion obviously troubled Gonzales, but he felt compelled to follow the law. “While the ramifications of such a law may?…be personally troubling to me as a parent, it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view on the decisions of the Legislature,” he wrote.
The conclusions of the Texas court in the abortion case were narrow. None of the judges, including Gonzales, addressed whether Roe should be affirmed or overturned. The opinions didn’t interpret the U.S. Constitution at all. The only issue was how one specific Texas law applied to one girl. But those caveats counted for nothing. Gonzales’s career—including four years of loyal service in George W. Bush’s White House—also counted for nothing. Fairly or not, accurately or not, the decisions branded Gonzales as unreliable on abortion, and that was enough for conservatives to veto him as a nominee to the Supreme Court. Such was the power of movement conservatives—and such was the importance of abortion to them—that Bush had no choice but to eliminate his good friend from consideration. The president never wavered in his admiration for Gonzales and never passed up an opportunity to say kind things about him. But he also never seriously considered him for a seat on the Supreme Court.
21
RETIRING THE TROPHY
In the sticky heat of a summer evening, Theodore Olson surveyed with evident and understandable satisfaction the guests assembled in his spacious backyard. For years, Ted and Barbara Olson, the first couple of the conservative legal world, had dreamed of a night like this one. A Californian who came east to be an assistant attorney general under Reagan, Ted went on to argue Bush v. Gore and, as a reward, to serve four years as Bush’s solicitor general. His wife, a former Republican Senate staffer, had been a vitriolic and telegenic critic of the Clintons and the author of best-selling books attacking their morals, politics, and marriage. The Olsons’ wedding in 1996 had drawn such conservative luminaries as Clarence Thomas, Robert Bork, and the couple’s close friend Kenneth Starr. If Hillary Clinton’s vast right-wing conspiracy had a headquarters, it was their estate in Great Falls, Virginia. Together the Olsons had dreamed of a true conservative majority on the Supreme Court, and now the moment had come. And the likely next justice was among the guests that night.
With the moment of triumph so close, there was a note of poignancy to the evening, because Barbara was not there to share in the celebration. She had been a passenger on the plane that crashed into the Pentagon on September 11, 2001. Her courageous phone calls to her husband in the moments before she died provided important clues to what happened on that terrible day. Still, there was little doubt that she would have approved Ted’s raiding their famous wine cellar for this special occasion.
It was a more polished crowd than one would find at, say, the Colorado Springs headquarters of Focus on the Family. The partygoers eschewed the rhetoric associated with the likes of Jay Sekulow or Manuel Miranda. But for all the differences in class and temperament in the conservative movement, the agenda for the Supreme Court was remarkably consistent across the board. Reverse Roe. Expand executive power. Speed executions. Welcome religion into the public