Friday, November 26, 2004

Taking the lead was Alberto R. Gonzales, the court's newest member, who had been appointed by George W. Bush, the governor at the time. While the presidential election ballots were still being counted in Florida, the staunchly pro-business court in Texas revived a lawsuit that had been filed by the family of a deceased metal pourer. The laborer had died of a lung disease caused by years of exposure to asbestos fibers at the aluminum plant where he had worked for 25 years.

Sizing Up Man Who Would Be Atty. Gen.

By Richard B. Schmitt, LA Times
November 26, 2004

WASHINGTON — In November 2000, the Texas Supreme Court, fast shedding its long-standing reputation as a friend to injured workers and other plaintiffs, did something unexpected.

Taking the lead was Alberto R. Gonzales, the court's newest member, who had been appointed by George W. Bush, the governor at the time.

While the presidential election ballots were still being counted in Florida, the staunchly pro-business court in Texas revived a lawsuit that had been filed by the family of a deceased metal pourer. The laborer had died of a lung disease caused by years of exposure to asbestos fibers at the aluminum plant where he had worked for 25 years.

Lower courts had dismissed the suit because the man had brought a previous case over another asbestos-related condition he suffered, and state law barred plaintiffs from filing multiple suits for the same toxic exposure. But the state's high court, in an opinion written by Gonzales, overturned that ruling.

"Permitting limitations to run on terminal injuries before the plaintiff knows of them is unjust," Gonzales wrote. He added that the interests of the asbestos companies "must be balanced against the plaintiff's need of an opportunity to seek redress for the gravest injuries, those culminating in wrongful death."

The opinion by Gonzales, President Bush's nominee to become the next attorney general, suggests he might be less doctrinaire than his work as White House counsel indicates.

As counsel to Bush during the last four years, Gonzales solicited a memo that purportedly allowed U.S. operatives to torture suspected terrorists picked up in Afghanistan. He helped craft rules on the legal status of prisoners at the U.S. naval base at Guantanamo Bay, Cuba, that were rejected by the courts. He has called portions of the Geneva Convention protecting prisoners of war "obsolete" and "quaint."

But friends and former associates, and even some adversaries, say Gonzales also has shown a balance that has been obscured in his service to Bush over the years.

Now, with his presumed ascent to the top of the Justice Department, people are starting to wonder which Gonzales will show up for work: the relative moderate who emphasizes a low-key, fact-based approach to the law, or the ardent advocate who follows the marching orders of his president and friend and his expansive view of presidential power.

"You have not seen him in the role where he would be making decisions in a completely independent way. As attorney general you are independently enforcing the law. As White House counsel, you are advocating the interests of a client. It is a big difference," said Roland Garcia, a Houston lawyer, friend and politically active Democrat who considers himself one of Gonzales' biggest supporters. "You cannot really pigeonhole Al as conservative or moderate or any of those labels."

James Thompson, a partner at the Houston law firm Vinson & Elkins, where Gonzales worked a dozen years as a corporate lawyer starting in the early 1980s, said: "There is no question that Al is loyal. But he is also an attorney, and he is loyal, when at work, to his clients."

"When he is confirmed as attorney general," Thompson said, "his client will be the United States and the people of the United States, and I would expect that Al would bring the same sense of loyalty to that job."

But Gonzales illustrates how Bush is turning to friends, cronies and associates in stocking his second-term Cabinet, and the relationship with Gonzales may be the closest of them all. Gonzales has been a Bush confidant for a decade, and the president often cites Gonzales' personal journey — a migrant workers' son who became a graduate of Harvard Law School — as personifying his view of the American dream.

"They have the closest, deepest relationship of trust and confidence you can imagine," Garcia said. "They have connected at a very deep level. They are soul mates."

The men were introduced in the mid-1990s by another Texan, Harriet Miers, whom Bush on Nov. 17 named to succeed Gonzales as White House counsel. That connection seems likely to ensure an extraordinary degree of cooperation between the Justice Department and the White House — although some career officials fear it also may compromise or erode the department's independence.

The Senate Judiciary Committee, which can confirm or reject Gonzales' nomination, has not set a date for hearings. But it is expected to closely scrutinize his ties to the president, among other issues.

Democrats are expected to examine Gonzales' role in setting policy in the war on terrorism. Of particular interest is a legal opinion he solicited from the Justice Department in August 2002. The memo discussed the liability of CIA agents for their treatment of suspected Al Qaeda and Taliban detainees in Afghanistan, and posited a theory that the agents were exempt from anti-torture laws.

Language in the memo later showed up in a March 2003 report by Pentagon lawyers assessing interrogation rules governing the Defense Depart- ment's detention center at Guantanamo Bay. Some suspect the opinion may have helped set the stage for the mistreatment of prisoners there and at the Abu Ghraib prison in Iraq, and plan to ask Gonzales about his level of involvement.

Democrats have predicted that Gonzales will be easily confirmed, but tests of his allegiance to the president are likely to come early and often.

They include a year-old special prosecutor's investigation into whether the White House illegally disclosed the name of a CIA operative to reporters to embarrass an administration critic, a probe in which Gonzales has given testimony before a federal grand jury. The FBI is also investigating Halliburton Co., the energy services company formerly run by Vice President Dick Cheney.

Gonzales declined to be interviewed for this article. A White House spokeswoman said he was declining all interview requests until after his confirmation hearing.

Before Bush, Gonzales' clients were mostly real estate developers and corporations.

At Vinson & Elkins, he represented a large energy company, Texas Eastern Transmission Co., which developed a prime downtown office complex known as the Houston Center. According to the firm's managing partner, Joseph Dilg, Gonzales also got involved in deal making, helping manufacturing companies buy and sell assets around the world.

In the early 1990s, Gonzales also did what a Vinson & Elkins spokesman said was "a small amount of work" for Enron Corp., which was one of the firm's biggest clients. Enron's former chairman, Kenneth L. Lay, an old Bush family friend before the firm's spectacular collapse, is among former Enron executives being prosecuted by the department Gonzales is expected to soon head.

Vinson & Elkins has done work for Halliburton for years, although Gonzales did not bill any time to the account, the spokesman said.

In retrospect, the task-oriented work Gonzales performed at Vinson & Elkins may have been good training for what was to come. Deal lawyers have clearly defined missions, and their value lies in figuring out ways to achieve them quickly and efficiently.

As a lawyer, Gonzales' strength became "you tell him what you want, and he will figure out how to get it," said Mark Lanier, a Houston lawyer who has observed Gonzales' rise over the years. "He became a coach's dream — you put him in and tell him what to do, and he will do it."

After hiring Gonzales to serve as general counsel during his first term as Texas governor in 1995, Bush quickly came to rely on him for such delicate tasks as summarizing clemency petitions Bush received from several dozen prisoners on the state's jam-packed death row. The work has drawn criticism from anti-death-penalty groups for allegedly giving short shrift to the prisoners' arguments — but kudos from Bush in his 1999 autobiography.

Gonzales' famous behind-the-scenes wrangling to help Bush avoid a jury duty stint in 1996 — and what would have meant the politically awkward disclosure of an old drunk-driving arrest — remains, to many, the counselor's savviest move to date. He persuaded a judge that a governor shouldn't be on a jury in case a pardon ever came up.

The following year, Bush appointed Gonzales secretary of state in Texas, where Gonzales helped conduct the state's dealings with Mexico and served as the chief election official. In 1999, Bush appointed him to the Texas Supreme Court.

On the highly conservative court, Gonzales "was always perceived to be a moderate," said Craig McDonald, head of Texans for Public Justice, an Austin nonprofit group that tracks money in Texas politics. According to McDonald, Gonzales was among a group of Bush nominees to the bench who were largely "corporate Republicans" rather than "social right-wingers."

Gonzales wrote an opinion that prevented injury victims from filing large class-action lawsuits, and he ruled against a Fort Worth city marshal-turned-whistle-blower who alleged that he had been demoted after exposing municipal corruption.

Gonzales, along with others on the Texas court, took campaign contributions when he successfully sought election to the court in 2000. Contributions came from Enron and Halliburton, as well as auto dealers, medical groups and an antilawsuit group calling itself Texans for Lawsuit Reform, according to data compiled by McDonald's watchdog group.

But Gonzales did not always side against plaintiffs. For example, he wrote an opinion allowing an innocent spouse to recover losses from an insurance company after her estranged husband had burned their house to the ground. In another case, he ruled that the family of a person killed in a car crash could sue the state transportation agency, rejecting its claim of immunity.

Brent Rosenthal, a Dallas lawyer who represented the family in the case of the metal pourer exposed to asbestos, said he knew he had a strong case but was still thrilled with the result.

"The Texas Supreme Court, even at that time, had the reputation of being overwhelmingly pro-business and hostile to anything that might help injured plaintiffs," he said.

Gonzales joined the majority in a case that interpreted the state's tough antiabortion law to allow a minor to have an abortion without telling her parents. The law included a provision granting pregnant girls the right to petition a court to allow them to have abortions under certain circumstances without telling their parents.

The case involved a high school senior, 17, who qualified under an exception for girls who were deemed "mature and sufficiently well-informed" to make the decision to have an abortion.

Gonzales wrote in a concurring opinion that he was simply interpreting the intent of the legislation, saying that "while the ramifications … may be personally troubling to me as a parent … it is my obligation as a judge to impartially apply the laws of this state without imposing my moral view on the decisions of the Legislature."

The case nonetheless touched off a political furor and cast Gonzales as a permanent enemy of religious conservatives.

As White House counsel since January 2001, Gonzales has returned to assiduously defending his most famous client.

He has moved to shield the White House from outside scrutiny, successfully fighting efforts by public interest groups to obtain details of meetings Cheney held with industry while formulating the administration's energy policy. Gonzales has helped transform the process of selecting federal judges by personally messaging the American Bar Assn. that Bush was ending the group's 50-year involvement in screening nominees.

He gave fresh fodder to his conservative critics by helping forge an administration position in a major affirmative action case last year before the U.S. Supreme Court that said race could be a consideration in university admissions.

Whether this track record carries over remains to be seen. His views on the role of attorney general probably won't be publicly known until his confirmation hearings. But he has a clear idea of his current role.

"You have to remember, in my current job, I am an advocate for a client who has an agenda," Gonzales said in an interview with a Texas newspaper last year. "And my job is to make sure the president has the tools he needs to pursue that agenda. So there may be some things the president wants that I personally disagree with. I will confess I think those instances are rare."