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40 | Commissioner Gorton

S

LAonoed g Rt is A pLupeRfect eXAMpLe of how wrong F. Scott

Fitzgerald was when he famously observed, “There are no second

acts in American lives.” His name was floated for attorney gen-

eral, secretary of the Interior or secretary of Energy in the Bush cabinet.

Next to AG, the job he wanted was solicitor general. Arguing govern-

ment cases before the Supreme Court was right up his alley. The solici-

tor general also plays a key role in selecting federal judges. “Palpably ill at

ease with self-promotion,” Gorton met with Vice President Cheney and

talked with John Ashcroft, the attorney-general designate. The job went

to Bush’s campaign attorney, Ted Olson, who had been in the trenches in

Florida.^1

Ashcroft’s appointment as AG—widely seen as a sop to the GOP’s

right wing—was particularly galling to Gorton. “Among Senate Republi-

cans, Ashcroft was considered an intellectual lightweight,” especially

compared to Gorton, a top-rank lawyer who had argued 14 cases before

the U.S. Supreme Court.^2

Forty-nine Senate Republicans urged Bush to nominate Gorton to the

Ninth Circuit Court of Appeals or the appellate court in the District of

Columbia. The lone holdout was McCain, who declined to sign the letter

because tribal sovereignty cases in the West would be on the Ninth Cir-

cuit’s docket. He said he might change his mind if the nomination were

to the D.C. court. The tribes had a conniption fit over the notion of Gor-

ton on the federal bench.^3

Despite his early endorsement of Bush, Gorton’s candidacy for a seat

on the Ninth Circuit apparently was never seriously considered by Al-

berto Gonzales, Bush’s counsel. He had three strikes against him for any

plum job: His intellectual feistiness; his friendship with Trent Lott, also

viewed by the White House as too independent, and his age. At 73, Gor-

ton was a remarkable specimen of physical and intellectual vitality, but

the administration wanted to install young conservatives. Some said

Bush and Karl Rove were sore because Gore carried Washington State.