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Friedman [Case]: Gonzales’ paper trial
Friedman [Case]: Gonzales’ paper trial

Peter Friedman, Case Western Reserve Law School:

"Alberto Gonzalez, the nominee to be chief law enforcement officer of the land, prepared 57 confidential memos on the merits of granting death-row inmates clemency. 56 of the inmates were executed. As Philip Carter writes in Slate, the memos "would have barely earned a passing grade in law school, let alone satisfy the requirements of a job in which life and death were at stake. Perhaps more important, these early memos from Texas revealed Gonzales' startling willingness to sacrifice rigorous legal analysis to achieve pre-ordained policy results at the drop of a Stetson." As Alan Berlow wrote in the Atlantic Monthly (subscription required) the memos reflect "an extraordinarily narrow notion of clemency." They appear to have excluded, for instance, factors such as "mental illness or incompetence, childhood physical or sexual abuse, remorse, rehabilitation, racial discrimination in jury selection, the competence of the legal defense, or disparities in sentences between co-defendants or among defendants convicted of similar crimes." In reporting on Berlow's article on Findlaw, John Dean writes: "Take the case of Terry Washington, a thirty-three-year-old mentally retarded man with the communications skills of a seven-year-old executed in 1997. Gonzales's clemency memo, according to Berlow, did not even mention his mental retardation, or his lawyer's failure to call, at trial, for the testimony of a mental health expert on this issue. Nor did it mention that the jury never heard about Washington's history of child abuse; he was one of ten children, all of whom 'were regularly beaten with whips, water hoses, extension cords, wire hangers, and fan belts.'" One of the Gonzalez memos is here.

One thing is certain about Gonzales, who is widely rumored to be in line for appointment by Bush to the Supreme Court: he doesn't have much of a paper trail. Thus far, I have only been able to locate 21 opinions he wrote as a justice of the Texas Supreme Court. Only one of those is politically notable, and not in a way liberals might fear. In In Re Jane Doe, 19 S.W.3d 346 (Tex. 2000), Gonzalez concurred in a decision holding a minor had the right to seek an abortion without her parents' consent. None of the other Gonzalez opinions I've located betray any particular political bent. In light of both his failure to take the anti-abortion position in Doe and the absence of a paper trail, it shouldn't be entirely surprising that, as Jeffrey Toobin wrote in the New Yorker in 2003, "around the Federalist Society . . . the joke goes that 'Alberto Gonzalez is Spanish for David Souter.'" [November 10, 2004: RawData has more].

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