Gonzales: Empathy Questions To Sotomayor 'Appropriate'

Supreme Court nominee Sonia Sotomayor's confirmation hearings have ended, and the Senate Judiciary Committee has delayed the vote on her nomination until next week.

Former U.S. Atty. General Alberto Gonzales talks about the hearings, shares thoughts on the confirmation process, and what it would mean to have the first Latino judge on the Supreme Court.

Alberto Gonzales Wades Into Nomination Debate

Alberto Gonzales

hide captionAlberto Gonzales says diversity should matter when selecting the next nominee to the Supreme Court.

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Shortly after he became attorney general, Alberto Gonzales, who had previously served as President Bush's White House counsel, was the focus of intense speculation about a potential Supreme Court nomination.

Gonzales weighs in on President Obama's pending nomination to the Supreme Court in an exclusive conversation with host Michel Martin. An announcement from the president is expected within days, following recent news that Justice David Souter plans to retire in June.

The following is an excerpt of the Tell Me More interview with Gonzales:

Martin: Today, a subcommittee of the Senate Judiciary Committee is holding a hearing on alleged efforts to suppress dissenting views on torture within the Bush administration. The hearing is called "What Went Wrong: Torture and the Office of Legal Counsel in the Bush Administration."

Since we last spoke, there has been the release of these memos detailing some of the conversations within the White House about these techniques and the authorization for these techniques. Some Republicans, including Vice President Cheney have said, if you're going to tell it, tell it all, release all of the conversations. Other's say, this is just opening a can of worms that cannot be productive in the end. I'd just like to ask your view of this?

Gonzales: I don't know, Michel, whether or not I have much to comment on this, I'm interested to see what the testimony reveals today. So, let's see what happens and then obviously it's an interesting debate, and I think ... it's a worthy debate to have in terms of what the government is doing to protect our country. Let's just see what the testimony reveals today.

Would you like to be heard yourself? Would you like to testify yourself?

I think I've done plenty of testifying already on a wide variety of issues. I stand by what I did in government service, I'm proud of that record, in terms of defending our country. But let's just wait to see what the testimony reveals today.

Let's turn to the question of the nomination. How much of a priority in your view should President Obama place on questions of race, gender or ethnicity, particularly given that there are many people asking him, suggesting that he should be the person to suggest the first Latino justice?

Well, I think that the questions about race and gender are certainly considerations that any president should take into account but, in my judgment, they're secondary to the evaluation as to the person's judicial philosophy and their professional excellence. Once a potential nominee meets those two tests for a president, not only do I think it's appropriate, I think it's probably wise for a president to take into account certain political factors, considerations in making a Supreme Court appointment.

Every president has done it. I think it's perfectly appropriate, and in this particular case, I think it would be appropriate for President Obama to, once he decides a particular person again meets his tests for judicial philosophy and professional excellence, to take into account whether or not a person, gender, ethnicity, how that would effect the work of the court going forward.

Why does that matter? There was some talk at one point, there was intense speculation of your becoming the first Latino justice. Why does that matter?

I think something like that would be historic. Now clearly there is no such thing as a black justice, Hispanic justice, Asian justice, female justice and the outcome of the case should not depend on the gender, ethnicity of a judge any more than it should depend on the gender, ethnicity of a prosecutor or a defendant quite frankly. But such an appointment would send a very powerful message that the [inaudible] opportunity in this country and while no ethnicity or gender group is deserving of representation on our courts, it does send a message to America about the opportunity that is available in this country. For that reason I think that a president is wise to take that into consideration in making a decision.

What about this question of judicial philosophy? There are conservatives who say that President Obama should not seek to move the courts sharply to the left. Now given that the retiree is Justice Souter, it's hard to see how the person would differ very greatly — President Obama has praised him very much for his performance on the court — would differ very greatly from Justice Souter.

On the other hand, there are progressives who say that that is what the elections are about, and if the president does not choose someone who reflects his values, particularly someone who is going to be a vigorous proponent of his values in an effort to balance, for example, Justices Alito and Thomas, then he's broken faith with the people that have put him in office. How do you address this question? How do you think he should address this question?

Well, you know, the president takes this oath to preserve, protect and defend the Constitution, and the guardians of the Constitution, some would say, are the members of the Supreme Court. So a president's duty, to his oath, is to ensure that he appoints qualified men and women to the Supreme Court of the United States. It should be no surprise in terms of the kind of person that President Obama is going to be looking for, you're right, he did win an election and probably the most important things that stem from an election and winning an election are the appointments to the Supreme Court. They represent a president's most lasting and most symbolic legacy in my judgment, and because the decisions of the men and women on the court will last for years and years to come.

I think that judicial philosophy is something that is extremely important, and I suspect the judicial philosophy that President Obama wants to see in his nominees is going to be different than the kind of justice that Sen. McCain would have been looking for if he had been elected president, I think different than what President Bush looked for when he was president. But that's what elections are all about, and that's why elections are so important.

Do you think that certain key questions should be asked? For example, can the president confirm that a nominee shares his philosophy on matters such as abortion rights, stem cell research, things of that nature?

I think that ...

Same-sex marriage for example?

I think that you need to be careful about the kinds of questions that you ask a prospective nominee. We exercised great care when I was in the White House and as attorney general, we didn't ask people you know how they felt about certain litmus test issues, like abortion, like gay rights.

But you can look at someone's past record, particularly if they have prior judicial experience and evaluate how they approach certain kinds of cases, how they reach their decisions, and you can derive some level of comfort about the kind of job that they would do as a member of the Supreme Court.

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