Conservatives vs. Gonzales

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A lot of conservatives are really distraught over Bush's choice of Gonzales for attorney general (note: not for the Supreme Court). I just can't understand this reaction. It's true that Gonzales voted against Priscilla Owen in a Texas Supreme Court case involving abortion and parental consent, Owen not to allow the girl in question to have the abortion without parental notification, Gonzales to allow it. It's also true that the law in Texas at the time required parental notification for most such cases. However, Gonzales' actions were simply following the law, since the law said specifically that a judicial authority could rule that a girl under 17 to be mature enough and well-informed. The law as written requires judges to make that call. Gonzales made that call. It doesn't mean he endorses abortion or doesn't believe in parental consent laws. His job wasn't to write the law. It was to enforce it, and he did that. He saw voting with Owen and the other half of that court as judicial activism by not following the law and declaring a mature, well-informed girl not to be mature and well-informed. So this case says nothing about his views on abortion or his views on interpreting the law strictly or loosely. I should note that Owen may not have been judicially activist herself, since she may not have deemed the girl to be mature or well-informed enough. Given Gonzales' view on that, he couldn't go against the law without being judicially activist.

The other issue that comes up is a reported but unsubstantiated comment by Gonzales that the Constitution is a living document and that it gets interpreted by the nine justices on the Supreme Court. Well, the second claim is just true. That's what happens. He may have meant nothing more than that the Supreme Court is the final authority on such matters. As for the living document issue, there are a couple issues to remember. What some people mean when they say the Constitution is a living document is that in fact judges have been interpreting some of its deliberately vague or ambiguous language whenever there has been a need. When you write laws by committee, it's not often clear what the original intent was, since the writers agreed on language they all, coming from different viewpoints, could interpret as in accordance with their views. Then when a case comes that needs a decision on what that language will mean, the Supreme Court has to make a decision. They have in fact done this since Jefferson's time. For all I know, that's all Gonzales means. There are some expressions in the Constitution where there's no question as to original intent, but some judges think the new context we're in requires interpreting thing differently. That's a different kind of living document view, one a strict constructionist will disagree with, saying we still need to take the original intent, and if people want to change the Constitution legally they should try to do so. I haven't seen any evidence that Gonzales takes the more liberal view of the Constitution as a living document, and I will refrain from judgment until I see more information. Now some justices have gone way beyond all this and flat-out invented rights that they have claimed to find in the Constitution, and it also remains to be seen whether Gonzales supports that. That's the most extreme view of the Constitution as a living document, and the judges conservative complain most about in terms of judicial activism will do that. Using such terms as 'living document' doesn't reveal which of those three tendencies he might go along with. The uproar is just not justified until we know more. Besides, the attorney general has little to do with any of this as a law enforcement officer. Would you be mad if a judge who believed in judicial activism became head of the local police force?

3 Comments

His job wasn't to write the law. It was to enforce it

Actually, if he was a judge, then his job was to interpret the law. (In this case, that also involved making a call about the maturity of a girl under the age of 17.) The role of enforcement of the law goes to the executive branch (of which he'll be a part if he becomes AG).

This if course has almost no bearing on your point.

Well, in this case the law was clear, and all the judges agreed. The just disagreed about whether the "if" clause of a conditional applied to her. Maybe it would be more accurate to say it was his job to enact the law by carrying out its stipulation that judges make a judgment call on her character and maturity. It didn't in this case involve interpreting the law itself. It involved interpreting her. Maybe that's not what a judge should be doing, but if so then it's a bad law.

It involved interpreting her. Maybe that's not what a judge should be doing, but if so then it's a bad law.

So far as I understand, that is indeed what a judge should be doing. The judicial branch is supposed to interpret the law and to determine which laws are applicable in a given circumstance (and which laws might override others if there is some sort of conflict). So interpreting a person or a situation is part of the judicial branch's responsibility as it is all a part of interpreting the law as a whole to determine which laws are applicable.

Thus it seems to me appropriate that a law would say something along the lines of "a judicial authority could rule that certain cases do not apply". Similarly, it seems to me appropriate that the judicial branch provides "judicial oversight" to the executive branch in some of its enforcement roles. Not only is it part of the check and balance system, it is also part of the role of the judical branch to determine if the law requires agressive investigation given the circumstances so as to override normal privacy concerns.

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