Hearing of the Committee on the Judiciary on Confirmation Hearing on Nomination of Alberto R. Gonzalas to be Attorney General of the United States

Hearing of the Committee on the Judiciary on Confirmation Hearing on Nomination of Alberto R. Gonzalas to be Attorney General of the United States

STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE STATE OF NEW YORK

Senator Schumer. Thank you. And let me, Mr. Chairman, join all of my colleagues in congratulating you on achieving
chairmanship of the Judiciary Committee.

Chairman Specter. Thank you.

Senator Schumer. You have all of the good qualifications for it, so thank you.

Thank you, Judge Gonzales. Let me just say that I guess many of us, at least on this side of the aisle, have had very
bad experiences with the Justice Department over the last four years.

The Attorney General, should you be confirmed, is at the nexus of what may be the most fundamental and important
conflict or tension in our Government, and that is between security and liberty, and the Founding Fathers paid a lot of
attention to that, and realized the importance of that tension. One thing I think they called for in the structure of the
Government they set up that these hearings embody and so much else, and that there be consultation, that there be discussion, and then you come to a conclusion. Obviously, the line moves. No one can dispute that we live in a new world after 9/11. No one disputes, certainly not me, that old rules should be re-examined because the world has changed dramatically, and what governed when the War of the Roses was fought does not govern today.

But the previous Attorney General ran the most secretive Justice Department in my lifetime. He seemed to make every
major decision behind closed doors in the dark of night, and then when ideas popped out, because there was no consultation,
because there was no vetting, he had to pull back because he had gone too far. That happened in torture, where there has
been some retraction by the administration. It happened with the TIPS program, where originally your predecessor, or
Attorney General Ashcroft, rather, wanted neighbors to spy on neighbors. Another was the Total Information Awareness Program. Time and time again proposals were pulled back because they were half-baked or not vetted or not discussed, and they would have come out much better had there been the kind of dialogue that I think Democratic and Republican administrations in the past on these key delicate and important issues that have to be carefully balanced, there was discussion.

So my general concern is to know how you are going to approach these issues should you be confirmed. Will you be a
voice for inclusion and consultation, or will you be continuing the John Ashcroft ``my way or the highway'' approach that often
led to embarrassment on his part, on the Department of Justice's part, and others? And I have a few questions in this
regard, some specifics.

The first is on judges itself, an issue of great concern to me. In your position as Counsel, you and I have worked out
things very well together in New York State. Every vacancy is filled. They are filled with moderate or conservative but
mainstream judges. But we had a real dialogue. You would bounce names off of me; I would bounce names off of you. There were some each of us said to the other are not acceptable, and they were pulled off the table. The judges, make no mistake about it, do not mirror my views. Most of them are pro-life and more conservative on most issues, but they are mainstream. I really believed that they would interpret the law.

That is not what has happened nationally. We have had on most circuits just a throw down the gauntlet, here is who we
want, you better approve them, and if you do not approve them, you are obstructionist, even though we have approved 204 out of 214, a record, I think, that is better than the first few Congresses, where I think one-fifth of all Supreme Court
nominees, although that may be in the history of all the Congresses, have been rejected. And many of us believe that
some of these nominees were radical. They were not strict constructionists. They were not following the law. They wanted
to get rid of decades and sometimes even centuries of law when it came to environment or civil rights or women's rights or
privacy or property rights.

And as you know, we are going to have a Supreme Court nomination, you know, before long. I hasten to add, by the way,
parenthetically, that the standard that I am going to use and I think most of us are going to use to judge you as Attorney
General will be different than we would use for Supreme Court Justices should you or anybody else be the nominee. No one
should mistake the votes here as a ratification because it is a different job, it is a lower standard. In the executive branch,
you want the President to have more leeway than in an independent judicial branch.

But I want to ask you, when it comes to Supreme Court nominations, which we are likely to get here, will you be a
real voice for consultation? Will you come to us or will you urge the President to come to us and say here are the names I
am considering, what do you think? Which ones would cause a knock-down, drag-out fight? Which ones would be acceptable? Can we reach compromise? There may be more than one nomination.

Can you just give me a little bit of your feeling on how that ought to happen and your judgment on what has happened
thus far in New York versus what has happened in the rest or many of the other circuits?

Judge Gonzales. Thank you, Senator. First of all, let me make it clear: I am not a candidate for the Supreme Court.

Senator Schumer. Right. Just making sure that everyone knows in case that should happen, one standard is different
than the other.

Judge Gonzales. I'm focused on this position.

Senator Schumer. I understand that.

Judge Gonzales. I want to thank you for your work in connection with filling Federal judgeships in New York. I agree
with you, we have been able, in my judgment, to reach accommodations where the President is able to put people on the
Federal bench that he believes should serve as lifetime judges. As to why we haven't been able to replicate that around the
country, I'm still trying to understand that as well.

You mentioned some circuit court judges that were way, way out of the mainstream. We look at these picks very, very
carefully, and we talk to a lot of people. We bring them in. We look at their writings, if they have been judges. They have
been rated well qualified or qualified by the American Bar Association, as you well know.

Senator Schumer. Yes, but they do not rate on their views. They rate on their integrity and demeanor. I mean, a judge who
believes there should be no zoning laws, which is one of the people you nominated, is 1890s.

Judge Gonzales. Well, I am not going to try to defend every single act and every single statement of all of the President's
nominees. In my judgment, collectively they do come to the job with the appropriate character and integrity, professional
excellence, and with a judicial philosophy--

Senator Schumer. Will you urge the President to consult with us, with our side, in a real way, give us some names, some
choices, a real dialogue rather than ``We are doing this one''?

Judge Gonzales. Well, in my judgment, consultation has always been good. It has been fruitful. I will certainly make
the President aware of your request.

Senator Schumer. The second issue, related, the so-called nuclear option. Now, again, the pique of some, some of my
colleagues and many in the hard right, is, well, we didn't get every one of our judges, therefore, we have to change the rules
by having the Vice President, as he sits as President pro tem, rule that a filibuster is unconstitutional. I find it confounding. The very same people who urge strict construction of the Constitution--find the words, there is no right to privacy in the Constitution, it does not say ``right to privacy''--are now saying that the Constitution says there should only be a majority vote on judges.

First, are you aware of any words in the Constitution that say there should be a majority vote for judges?

Judge Gonzales. Senator, I have no views as to whether or not a filibuster is constitutional. We view that as an internal
Senate matter--

Senator Schumer. You know the Constitution. We are asking you to be Attorney General. Are there any words that say ``only majority vote for judges''?

Judge Gonzales. I'm not aware of that, Senator, but, please, give me the opportunity to go back and check my
Constitution.

Senator Schumer. All right. I will ask you to answer that in writing and find me those words.

Second, I would ask you your opinion, and this is important: Do you believe filibusters of judicial nominees violate the Constitution? And on what basis, if you do? Judge Gonzales. Senator, we talked about this in our meeting, and my answer--

Senator Schumer. We did, and you were going to think about it. You have had time to think about it.

Judge Gonzales. My answer today is the same as it was in our meeting, and that is, I do not have a view as to whether or
not it is constitutional. From my perspective, from the perspective of the White House, this is a matter, an internal
Senate matter, to be resolved within the Senate.

Senator Schumer. Well, you know, I am going to submit--I am going to ask you to think about that over the next several
hours. This is something that I think is important, and I do not think you should be able to duck it because the very
functioning of our Government could be at stake.

One final question--

BREAK IN TRANSCRIPT

Senator Schumer. Thank you, Mr. Chairman, and thanks for your courtesy here with the votes and everything else.

I just want to first go back to that nuclear option we talked about. My friend from Oklahoma was speaking about this.
Unfortunately, I was not here. Now I will speak about it and he is not here. But from what I understand, he said, well, the
Constitution says the Senate can make its own rules.

That is not the point. That misses the point entirely. The overruling of this, what would happen in the chair is the
Senate rules would be overruled by the Vice President on the basis that it is unconstitutional to require more than a
majority for a judge. The Senate rules are very clear. You need two-thirds to change the rules. And just by the stroke of a
pen, what the Vice President and those who are urging him are attempting to do is say on his own that is unconstitutional,
and I ask and I challenge my friend from Oklahoma, anyone from the other side who claims to be a strict constructionist, or,
in all due respect, you, Mr. Counsel, to find the words in the Constitution that say that. Everywhere else we want to define
the Constitution narrowly as could be, only the words, no expansive reading. But all of a sudden because 10 out of 214
judges have not been approved, we are going to say, oh, well, we divine in it in the Constitution.

Well, that is a Pandora's box if there ever was one, and the sophistry in the thinking to try and achieve an end to me
does not rise to the dignity, wisdom, and majesty that this body has shown itself capable of. But that is my answer to my
friend from Oklahoma. Well, the Constitution says the Senate can make its own rules. We have a rule, two-thirds. Can the
Vice President overrule it on a constitutional basis? And if you are strict constructionist, you better find the words in
the Constitution that says he can.

Now, what I would like to ask you, again, Mr. Counsel, because you have had a little time to think about this, and I
asked you in all due respect--I guess we met about 3 weeks ago. We had a very nice, friendly meeting. You know, on too many of these issues we are not getting answers. And, again, as I said, there is a higher standard for judges. A couple of our judge nominees did not get approved because they would not answer any questions. I do not know if it rises to that level with the AG, but I certainly think it is better for the Republic if there are answers.

You did tell me that you couldn't find words in the Constitution that said you needed a majority to vote on judges.
That is clear. I went back and just checked the Constitution for the 48th time myself. You can check it again if you want.
But what is your view on saying that it is unconstitutional for the Senate to require more than a majority to approve judges?

Judge Gonzales. Senator, I appreciate your question.

Senator Schumer. It is going to be a very important question over the next 6 months.

Judge Gonzales. Senator, again, respectfully, my answer remains the same. I don't have a view as to whether or not such
a procedure would be constitutional. My judgment, and others' within the White House, is that this is a Senate internal
matter to be worked out amongst the Members of the Senate.

Senator Schumer. Then that would follow we should follow the Senate rules, which say you need two-thirds.

Judge Gonzales. Sir, I will let the Senators debate that.

Senator Schumer. Okay.

Judge Gonzales. Of course.

Senator Schumer. Let me ask you another question, and that is this: We have had a lot of talk about the Geneva Convention and what has happened in the past. I want to ask you a prospective question about the Geneva Convention. Do you think that we should seek revisions of the Geneva Convention in the future? I do not know if that is right or wrong, but do you think we should? Have there been any discussions in your office as Counsel or in the White House or in the administration as to whether we should seek those revisions? And if there is a determination that we should seek certain revisions--and I do
not know what they would be; they might be reasonable--should Congress be include in that discussion?

Judge Gonzales. Thank you, Senator, for that question. I think it's a very good question because we are fighting a new
type of enemy and a new type of war.

Senator Schumer. Sure.

Judge Gonzales. Geneva was ratified in 1949, Geneva Conventions, and I think it is appropriate to revisit whether
or not Geneva should be revisited.

Now, I'm not suggesting that the principles of Geneva regarding basic treatment, basic decent treatment of human
beings, should be revisited. That should always be our polestar. That should always be the basis on which we look at
this. But I am aware--there has been some very preliminary discussion as to whether is this something that we ought to
look at. I'm also aware that certain academicians and international law scholars have written on this subject as to
whether or not should we revisit Geneva and asked whether or not the Senate should play a role or the Congress should play a role. Obviously, if you're talking about modifications of Geneva or a new treaty, the Senate would play a very important
role in the ratification process.

Senator Schumer. I understand that, but what I am saying is if the new administration were to begin internal discussions on
whether Geneva should be modified and in what way, would they include the Senate in those discussions rather than saying here is what we recommend? You know, I mean, obviously this needs to be negotiated in a multilateral way. But would you include us in those--or would you recommend to the President that we be included in those discussions?

Judge Gonzales. Before answering a question, I want to emphasize, when I indicate that there's been some discussion
within the White House or the administration, it's not been a systematic project or effort to look at this question, but
some--I know certainly with the people that I deal with, the lawyers have questioned maybe this is something that ought to
be looked at. So I do not want to leave the impression--

Senator Schumer. I do not hold any brief against that. Obviously, you can re-examine these things.

Judge Gonzales. And it seems to me that it's probably always better to consult with the Senate since the Senate is
going to have a role in the ratification process. I think consultation is usually better than not consulting.

Senator Schumer. Okay. And there is no proposal you know that is being formulated right now, is there?

Judge Gonzales. Not that I'm aware of, Senator.

Senator Schumer. Thank you.

Thank you, Mr. Chairman.

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