MICHEL MARTIN, host:
I'm Michel Martin, and this is TELL ME MORE from NPR News.
Coming up, we'll ask why President Obama's education budget slashes millions in aid to historically black colleges and universities and tribal colleges. And we'll talk about what these institutions plan to do about that. We'll have that conversation in a few minutes.
But first, President Obama's pending appointment to the Supreme Court. Since Justice David Souter announced his decision to retire this summer, speculation has raised about who the new president will choose to replace him. But it's more than questions about judicial philosophy that have the legal community and Washington insiders buzzing. It's also talk about what role race, ethnicity, age, gender, even sexual orientation, will or should play in the president's choice. And there's a question of history. Should the first African-American president make history again with another groundbreaking nomination. What about the first Latino? The first openly gay justice? Or should these factors even be part of the discussion?
We've gathered a roundtable of prominent voices in the legal community to talk about how President Obama may and, in their view, should address this important decision. In a few minutes, we'll hear from one of President Obama's former professors at Harvard Law School, Charles Ogletree. We'll also hear from Lani Guinier, also a professor at Harvard Law School who has her own experience with the buzzsaw of a confirmation process to a high government office. But we turn now to Alberto Gonzales. He is a former United States attorney general under President George W. Bush. Prior to that post he served as President Bush's White House general counsel, White House counsel. And for a time, he was the focus of intense speculation about a potential Supreme Court nomination himself. Welcome back to the program, thank you for joining us.
Mr. ALBERTO GONZALES (Former United Stats Attorney General): It's good to be back.
MARTIN: And before we turned to the Supreme Court, I just have one question about this - whole question of enhanced interrogation techniques or torture, as many people believe it to be. 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, although 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 a release of these memos detailing some of the conservations within the White House about these techniques and the authorization for those techniques. Some Republicans, including Vice President Cheney have said, if you're going to tell it, tell it all, release all of the conversations. Others say, this is just opening a can of worms that cannot be productive and I'd just like ask your view of this.
Mr. 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 obviously it's an interesting debate. And I think it's one that -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.
MARTIN: Would you like to be heard yourself? Would you like to testify yourself?
Mr. GONZALES: 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.
MARTIN: 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 select the first Latino justice?
Mr. GONZALES: Well, I think that the questions about race and gender are certainly considerations that any president should take into account. But in my judgement, they are secondary to the evaluation as to a 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's gender, ethnicity, how that would affect the work of the court, going forward.
MARTIN: Why does that matter? There was some talk, at one point, there was intense speculation about your becoming the first Latino justice. Why does that matter?
Mr. GONZALES: Well, I think something like that would be historic. Now clearly, there is no such thing as Black justice, Hispanic justice, Asian justice, female justice. And the outcome of the case should not depend on whether - on the gender or ethnicity of a judge anymore than it should depend on the gender or ethnicity of a prosecutor or a defendant, quite frankly. But such an appointment would send a very powerful message, a message of 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. And for that reason I think that a president is wise to take that into consideration in making a decision.
MARTIN: What about this question of judicial philosophy? There are conservatives who say that President Obama should not seek to move the court sharply to the left. Now, given that the retiree is Justice Souter, it's hard to see how the person would differ very greatly, that 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's what elections are about and if the president does not choose someone who reflects his values, particularly someone who's going to be a vigorous proponent of his values in effort to balance, for example, Justices Alito and Thomas, then he is not - he's broken faith with the people who put him in office. How do you address this question? How do you think he should address this question?
Mr. GONZALES: Well, you know, the president takes the oath of office to preserve, protect and defend the Constitution. And the guardians of the Constitution, some would say, are the members of the Supreme Court. And 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's going to be looking for. You're right, he did win an election. And probably the most important things about - that stem from an election and winning an election are the appointments of 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. And so I think that judicial philosophy is something extremely important and I suspect a judicial philosophy that President Obama wants to see in his nominees is going to be different than the kind of justice that Senator 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.
MARTIN: Do you think that the certain key questions should be asked? For example, can the president confirm that a nominee shares his philosophy on matters such as abortion rights or stem cell research and things of that nature?
Mr. GONZALES: I think that - I think…
MARTIN: Same sex marriage.
Mr. GONZALES: …you need to be careful about the kinds of questions that you ask a prospective nominee. We exercise 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.
MARTIN: Alberto Gonzales served as attorney general of the United States in the George W. Bush administration.
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