True Faith and Allegiance

by Alberto R. Gonzales

  That anger manifested itself in my next phone conversation with Ted Olson. When I informed Ted the president did not want to take a position on whether racial or educational diversity was a compelling interest to the government, he responded, “If the president believes race can be a factor, then we have a problem.”

  On January 13, I gave the president an update on the development of the brief, and he reaffirmed his position. He felt that the vice president could help sway Ted in that direction.

  David Leitch and Noel Francisco had done tremendous work in analyzing the cases, but as we moved toward the final brief, I also asked associate counsel Brett Kavanaugh to work with the deputy solicitor general, Paul Clement. Brett had clerked on the Supreme Court with Paul and they were friends, so I hoped his involvement would facilitate the editing process on the brief.

  Their relationship was quickly tested. That same evening, in a phone conversation, Paul reported to Brett that Ted Olson did not believe the White House position made any sense. It was inconsistent, Ted said, to oppose racial diversity as a compelling government interest, but at the same time, support educational diversity through our silence. Paul suggested that Ted was dug in and unlikely to change his opinion.

  Ted was more comfortable not filing a brief than filing a brief suggesting a distinction between racial diversity and educational diversity. He wanted to reject the Powell construct that recognized a difference between the two and that had permitted race to be considered in admissions decisions. Ted believed it was only appropriate for an institution to consider race where there had been clear instances of past discrimination by that institution.

  Exacerbating matters further, the following day, I received word from Paul Clement that neither Ted nor he would sign a legal brief to the Supreme Court that distinguished between racial and educational diversity.

  Fortunately, the news was not all bad. Ted had developed a new argument that he wanted us to consider. He contended that government should try to address societal discrimination, but it had an obligation to do so through race-neutral means. We know such measures work, but if they fail, then we can presume that ongoing discrimination exists, and then it would be permissible to consider race.

  When we presented this new idea to the president, he seemed to like it and indicated that such an approach might work. He didn’t mind answering the question of whether race can ever be considered if the answer was yes. He reminded us that we should promote diversity and allow people who have suffered from discrimination to have an equal shot in our society.

  Later that afternoon, we had another meeting in the Oval Office with the president, Dan Bartlett, Mike Gerson, Jay Lefkowitz, and Karl Rove. The president seemed to like the proposition that if a school exhausted race-neutral means and still failed to achieve diversity, then the school could consider race as a factor in its admissions process. He viewed this as consistent with his views. Our lawyers worked late into the night, trying to incorporate this caveat into the government’s brief.

  The next day, January 15, I was in my office by 6:00 a.m. and already assessing where the affirmative action arguments stood. To me, it appeared the president was still struggling over how best to promote diversity in our universities. Two competing interests were working against each other: on one hand, he had a desire to remedy past discrimination, and on the other hand, he had a strong belief that government should not make distinctions among people based on race.

  Liberals and many minority organizations focused on the first goal. They saw affirmative action programs that took race into account as not only permissible but necessary at times, especially when trying to correct the mistakes caused by past discrimination.

  At the opposite end of the spectrum, conservatives usually focused on the second goal, and insisted that government should never consider race when making decisions. Because of this, many minority groups—Hispanics included—felt that conservatives paid only lip service to the notion that affirmative action is necessary to remedy past causes and effects of discrimination.

  The president was trying to find the right balance between these two competing goals, and at times, he pushed us to find a way to meet both. The working group met with the president from approximately 7:00 a.m. to 8:00 a.m. in the Oval Office. The discussions were spirited regarding the new section of the brief, but for reasons only he knew, the president decided to stay with his initial instinct and say nothing about whether race could be considered as a factor. He was back to opposing the Michigan programs, solely on the basis that the university and law school had failed to exhaust race-neutral alternatives. He felt the Michigan programs were more like quotas.

  Indeed, in a written dissent, Sixth Circuit Court of Appeals judge Danny Julian Boggs described the Michigan Law School admissions program in blunt terms:

  An examination of the admissions data shows that even the most qualified majority students (those with an LSAT over 170 and a GPA over 3.75) do not achieve the perfect admissions percentages for under-represented minority students with a GPA nearly a point less and an LSAT score in the 164–166 range. More roughly speaking, under-represented minorities with a high C to low B undergraduate average are admitted at the same rate as majority applicants with an A average with roughly the same LSAT scores. Along a different axis, minority applicants with an A average and an LSAT score down to 156 (the 70th percentile nationally) are admitted at roughly the same rate as majority applicants with an A average and an LSAT score over a 167 (the 96th percentile nationally).

  More shocking is the comparison of the chances of admission for applicants with the same academic credentials (at least numerically). Taking a mid-range applicant with an LSAT score 164–166 and a GPA of 3.25–3.49, the chances of admission for a White or Asian applicant are around 22 percent. For an under-represented minority applicant, the chances of admission (100 %) would be better called a guarantee of admission.3

  Once again, the president asked Vice President Cheney to inform Ted Olson of the new instructions. When Cheney did so, Ted responded that if it were left up to him, he would not file that brief; however, he knew for whom he worked. If the president ordered him to sign the brief, he would, but he’d have to consider whether to continue working in the department.

  The president called me around 2:00 p.m., but I had no new information for him so I had Brett Kavanaugh call Paul Clement to inform him that the White House wanted a revised brief that evening, one that reflected the president’s original decision. Shortly afterward, John Ashcroft called me to find out what was happening with the brief. “The vice president has already called Ted,” I told him, “with instructions to prepare a narrow tailoring brief.” The AG seemed unaware of these recent events, so I assured him that I would have Brett call Clement to discuss the president’s instructions.

  Within fifteen minutes, the two young legal stars had spoken. Following my instructions, Brett had given unambiguous directions regarding the brief. Though normally calm and unflappable, Paul responded, “Should I just rip out the first section of the brief arguing that educational diversity is not a compelling government interest?”

  Brett responded, “You should do whatever makes the brief good.”

  Exasperated, Paul replied, “I’ve been working for three weeks to make the brief good!”

  Tensions mounted and tempers flared. Around four o’clock that afternoon, the vice president called me down to his office on the first floor of the West Wing. It was one of the few times the vice president summoned me. His voice was stern as he asked, “Do you have a Brett Kavanaugh working for you?”

  “Yes, sir,” I replied, uncertain where the VP was going.

  “Well, Ted Olson complained to me that Kavanaugh had informed the department that the counsel’s office was taking control of the brief. According to Ted, Kavanaugh said that the department should send everything over to the counsel’s office and we would finalize the brief.” The vice president questioned why anyone in the White House was interfering wi
th the work of the solicitor general.

  I told him respectfully that the attorney general had called me and had appeared uninformed and confused about the president’s decision. Therefore, I had asked Brett to call Paul with clear directions. I also told the vice president that although I would check with Brett, I was quite confident he would not have told the Department of Justice that the White House was taking over the brief.

  The vice president said that he had persuaded Ted to prepare a narrow tailoring brief, but Ted would not sign it. Clearly frustrated and angry, Cheney said, “I’m done with this.”

  As soon as I left the vice president’s office, I spoke with Brett, who confirmed that he had not informed the Justice Department that the White House counsel’s office was taking control of the brief. But apparently the lawyers at DOJ were unhappy with the direction we were going, and the fact that I seemed to be steering the process away from the position advocated by the department leadership.

  Afterward, I walked down to the Oval Office to talk with the president. Vice President Cheney was there as well. The president said that he liked where things stood, and he reiterated that he did not want to be the one to end affirmative action. “Let the courts do that if they want to,” he said.

  I reassured the vice president that we had not asked the department to take over writing the brief. The president expressed admiration for Ted and his work, but said they simply had a difference of opinion. He told me not to worry about Ted and the others at Justice. He felt this was an opportunity to show America that he was not as far to the right as some thought.

  “Okay, thank you, sir,” I said as I started to leave the office. Just outside the Oval Office doorway, I overheard President Bush say to the deputy communications director, Dan Bartlett, “Be sure to protect Al in the media.”

  His words, though meant in kindness and concern, hit me like a punch to the gut. Obviously, the president believed that the department lawyers and outside conservative groups had me in their sights, and they weren’t above firing whatever volleys necessary to minimize my input on White House policy and to keep me off the Supreme Court.

  The White House staff finalized the president’s remarks about the decision, and he announced his position from the Roosevelt Room. As he informed the world of his support for opportunities for minorities and his concomitant opposition to the Michigan programs, I stood nearby. I let out a sigh of relief that this moment had finally arrived.

  The next morning, I walked down from my office to the president’s office to see how he was feeling about the most recent events. He told me that he had dinner the previous night with the associate attorney general, Robert McCollum, a college buddy of his. He had directed McCollum to tell the Justice Department that he had made this decision, so the department should not attack the counsel’s office; he’d said we needed to work well together going forward. He also assured me that he would talk to the attorney general about what had happened during the past month regarding this affirmative action matter and the way we all had handled it.

  The media was quick to pick up on the tension in our ranks. Ron Fournier, with the Associated Press, reported, “[T]he decision to come out against the Michigan plan was vigorously debated by the president and his top advisors. Sources familiar with those discussions said Bush’s chief political advisors, Karl Rove and White House counsel Alberto Gonzales urged the administration not to oppose the Michigan program.”4

  This reporter, like so many others, continued to miss the mark. Neither Karl nor I ever urged the administration to support the Michigan admission programs. To the contrary, Karl and I recommended opposing the programs.

  I gave an interview to CNN that afternoon explaining the president’s position. On the way back to the White House, I learned that Ted Olson had agreed to sign the brief after all. I called the president from the car and informed him of the news. He was pleased. Once again, he expressed his appreciation for the work of the lawyers at Justice and in the counsel’s office. He also reiterated that I should not worry about the fallout. He’d deal with that. I appreciated his willingness to go to bat for me, but his repeated assurances only reminded me that the affirmative action case had further damaged my standing within the conservative community. I would not come to realize just how severely this incident had hurt me until a few years later when I desperately needed the support of conservatives in Washington, and the community remained painfully silent.

  A week later, I spoke with Senator Orrin Hatch, who told me that the brief was a good approach. He also told me that if I were to be nominated to the Supreme Court, as chairman of the Judiciary Committee, he would fight to get me through the confirmation process. I listened quietly and thanked the senator for his support. Orrin Hatch was one of the most decent men I had met since arriving in Washington.

  The following day, I spoke with Ted. He was his usual professional self. “Disagreements happen in Washington,” he said. He allowed that the president had a right to stake out his territory, and as solicitor general, he would do his best to defend it. I admired Ted even more following that conversation.

  Consequently, because we had settled on a compromise position, conservatives on the right attacked me, saying that the Bush policy—condemning the Michigan programs as unlawful quotas, but remaining neutral and not calling for the end to affirmative action—reflected the first indication of my positions as a potential Supreme Court nominee. One wag proffered, “Gonzales is Spanish for Souter,” recalling the liberal tendencies of the justice nominated by President George H. W. Bush.

  Those feelings were reinforced five months later, on June 23, 2003, when the Supreme Court announced its decision regarding the Michigan cases. The court upheld the use of race under certain circumstances. It upheld the admissions program for the law school, but it struck down the admissions program for the university.

  It was a bittersweet victory. In one sense, the president had gotten what he wanted. But as conservatives had feared, Justice Sandra Day O’Connor, considered by many a moderate conservative, wrote the majority opinion, which held that diversity in education is a compelling government interest. Therefore, race could be used as a factor in admissions decisions, although this must be individualized determinations—no quotas or formulas, separate tracks, or reserved spots for minorities. The decision emphasized that race-based programs should be limited in scope, and that institutions, when possible, should pursue race-neutral alternatives. While some regaled that as a victory, the Powell construct from the Bakke case was now the law of the land.

  Not surprisingly, conservatives were disgusted—and especially at me. Even the New York Times picked up on it in their June 24 edition: “Conservatives will want to make sure that anyone appointed to the court in this administration is a strong and sure opponent of racial preferences . . . many do not believe that Mr. Gonzales fits that description.”5

  The Wall Street Journal concurred: “In one sense, it is the first Supreme Court decision issued by White House Counsel Alberto Gonzales, who is widely believed to be President Bush’s choice for the High Court when the next justice retires. Mr. Gonzales helped to override those at the Justice Department who understood how Mrs. O’Connor would interpret their brief ’s legal ambivalence.”

  I never seriously dwelled on whether I might go on the court. Good thing. Any chances I had of being the first Hispanic ever to serve on the US Supreme Court were disappearing, propelled ironically, not by liberal opposition, but by my conservative “friends.”

  The battles over race continue today. We hear the same debates over consideration of race in college admissions decisions; we find similar discussions playing out in regard to immigration; we see increasing concerns about attitudes toward the police in many communities around America. How we accommodate people of different skin colors or different viewpoints remains a bitterly divisive and often antagonistic issue.

  Several months later, Washington would buzz with rumors that I had overruled the Justice Dep
artment again. The issue then would be the collection of intelligence information. In the meantime, one of the most defining challenges of the Bush administration was looming ahead of us. We were going to war in the “Cradle of Civilization,” to topple the evil regime of Saddam Hussein in Iraq.

  CHAPTER 22

  “CASUS BELLI”—THE TWISTED ROAD TO IRAQ

  During the weekend strategy session convened by the president at Camp David immediately following the 9/11 attacks on America, the possibility of Iraq’s involvement was raised. We were aware that Saddam Hussein had earned his reputation as the “Butcher of Baghdad” by his record of brutal human rights abuses and his use of chemical weapons against his own people. In 1988, he had attacked the Kurdish town of Halabja with mustard and nerve gases, killing thousands of innocent people including mothers and children. We also knew from information seized after Operation Desert Storm in 1991 that Saddam’s nuclear weapons program was much more advanced than we had thought. The International Atomic Energy Agency reported that had it not been for the war, Hussein likely would have produced a nuclear device by the end of 1992.

  In 1995, when Saddam’s son-in-law and the son-in-law’s brother defected to Jordan, revealing portions of Iraq’s weapons program—in particular Saddam’s efforts to develop nuclear and biological weapons—Saddam had the defectors and both of their families murdered.1

  During those post-9/11 Camp David discussions, there was little doubt that given the opportunity, Saddam would not hesitate to inflict maximum harm on America. Yet no one claimed in those discussions to have evidence linking Saddam to 9/11.