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(Note, by the way, that the phrase "unconscionable act of judicial activism" does not refer to fellow Texas Supreme Court Justice Priscilla Owen, recently confirmed to the 5th District US Court of Appeals, or to her dissent, as some have claimed.)

This case, No. 00-0224 In Re Jane Doe, was messy. And certainly Owen's dissent—which did not challenge Roe v. Wade—was principled and focused on "strictly a legal issue," rather than personal biases.

But what can be said about Gonzales? That he's a judicial activist akin to O'Connor or David Souter? That he's soft on abortion? That he, as one right-wing online publisher wrote, "would be a disaster. Might as well let the American Civil Liberties Union name the next justice"?

No: What can be said is that he's really into the separation of powers and eager to interpret the law as it was written, not as the latest fads of legal theorists dictate.

"There are no litmus tests for judicial candidates," Gonzales told the Los Angeles Times in 2001. "My own personal feelings about [abortion] don't matter. … The question is, what is the law, what is the precedent, what is binding in rendering your decision. Sometimes, interpreting a statute, you may have to uphold a statute that you may find personally offensive. But as a judge, that's your job."

Now, there are many pro-life activists who say he's wrong. Among them is American Life League president Judie Brown, who says life takes precedence over the rule of law. "Gonzales's position is clear: The personhood of the pre-born human being is secondary to technical points of law, and that is a deadly perspective for anyone to take," she wrote to supporters. By supporting Gonzales, Brown said, Bush is "betraying the babies."

But Dobson and others have taken a very different tack than Brown. They have not made abortion the issue. They have made originalism vs. judicial activism the issue. Which puts them in a bind.

'Judgments in conformity with the laws'
The Jane Doe case isn't the only item making pro-lifers nervous about Gonzales. There's also this reported 2004 exchange with anti-abortion activist C.J. Willkie:

Q: Judge Gonzales, we're hearing conflicting reports about your position on abortion. Can you tell us where you stand?

A: As a judge, I have to make judgments in conformity with the laws of our nation.

Q: Would you say that, regarding Roe v. Wade, stare decisis would be governing here?

A: Yes. As a judge, I have to make judgments in conformity with the laws of our nation. …

Q: Judge Gonzales, it's well known that the Clinton administration had a very clear and consistent litmus test in regard to judicial nominations. If that person was not pro-abortion, they were not nominated. In light of this, do you ask your nominees what their position is on abortion?

A: No, we do not. We judge them on a very broad basis of conservatism and constitutional construction.

Q: Many of us feel that the Constitution does not speak to permissive abortion. Would you comment?

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July (Web-only) 2005, Vol. 49