Executive Session

EXECUTIVE SESSION -- (Senate - February 01, 2005)

The PRESIDING OFFICER. The Senator from New York.

Mr. SCHUMER. Mr. President, this has been one of the most difficult votes on a nominee I have had to make since coming to the Senate, and that is because I like Judge Gonzales. I respect him. I think he is a gentleman, and I think he is genuinely a good man. We have worked well together, especially when it comes to filling the vacancies on New York's Federal bench. He has been straightforward with me, he has been open to compromise, and the bench is filled with good people.

Our interactions have not just been cordial, they have been pleasant. I have enjoyed the give and take in which we have engaged. Therefore, when President Bush nominated Judge Gonzales to be Attorney General, my first reaction was positive. Unlike with judicial nominees which are life appointments from a separate branch of Government, Cabinet officers serve the President, and I generally believe we should show deference to the President's choices. That is why I was inclined to support Judge Gonzales. I believed, and I said publicly, that Judge Gonzales was a much less polarizing figure than Senator Ashcroft had been.

But less polarizing than John Ashcroft is not enough alone to get my vote. Even if you are, as Judge Gonzales is, a good person with top-notch legal qualifications, you still must have the independence necessary to be the Nation's chief law enforcement officer. The Attorney General is unlike any other Cabinet officer. For all those other Cabinet officers, simply carrying out the President's agenda is enough. But to be a good Attorney General, unqualified deference to the President is not enough. Unlike all the other Cabinet positions, where your role is to implement and advance the President's policies as Attorney General, as the Nation's chief law enforcement officer, your job is to enforce the law, all the laws, whether they hurt or help the administration's objectives.

This position requires a greater degree of independence than, for example, the Secretary of State, whose obligation is to advance the President's interests abroad. When the White House asks the Justice Department, Can we do x? Can we wiretap this group of people? The Justice Department is charged with giving an objective answer, not one tailored to achieve the President's goals. That is the chief law enforcement officer of the land-separate from the President's right-hand person. As I have said before, it is hard to be a straight shooter if you are a blind loyalist.

There are two models for an Attorney General: loyalist and independent, and we all know there were Attorneys General over the years who have been close to the President. Robert Kennedy is a great example. He served his own brother. But that said, no one ever doubted, in the confines of the Oval Office, Bobby Kennedy would oppose his brother if he thought he was wrong. Judge Gonzales is more of a loyalist than an independent, but that alone does not disqualify him. It raises concerns, but after extensive review of the record, unfortunately and sadly, and despite my great personal affection for Judge Gonzales, his testimony before the committee turned me around and changed my vote from yes to no. He was so circumspect in his answers, so unwilling to leave even a micron of space between his views and the President's, that I now have real doubts whether he can perform the job of Attorney General.

In short, Judge Gonzales still seems to see himself as Counsel to the President, not as Attorney General, the chief law enforcement officer of the land.

I would like to give a little bit of history. Judge Gonzales came and saw me back in December. We had a good conversation on a range of topics. I respected and appreciated his commitment to recuse himself from the investigation into the felony disclosure of then-covert CIA agent Valerie Plane's identity.

I told him that I understood 9/11 created a brave new world; that the war on terror required reassessment of the rules of law; and I told him that given the enemies we now face, we couldn't afford to be doctrinaire.

I told him I supported the administration when it comes to aggressively reexamining the way we do business and interrogating witnesses.

I agree we have to make sure we are doing everything we can do to protect American families from those who would do us harm to prevent another 9/11, but I also told Judge Gonzales that I was troubled that the administration had undertaken its reworking or reinterpretation of the rules of war behind closed doors rather than engaging the Congress and the American public and the international community in an open and direct fashion.

Time and time again the administration has gotten itself into trouble by trying to go at it alone rather than doing business in the open, particularly in the Justice Department. Whether it was the total information awareness project, the TIPS Program, or torture, they have been burned by their peculiar penchant for complete secrecy.

I encouraged Judge Gonzales to be candid with the committee when discussing these issues. I encouraged him to give us some hope that he would run a different department, a more open department, one more willing to listen to the oral arguments than John Ashcroft.

Unfortunately, even a cursory review of his answers reveal strict adherence to the White House line and barely a drop of independence.

A set of answers very important to me came in response to my questions on the nuclear option-whether to rule from the chair that Senators were not allowed to filibuster judicial nominees.

When we met in private, I asked Judge Gonzales his opinion about the constitutionality of the nuclear option. He said he had not reviewed the applicable constitutional clauses, and that in any event it was a matter reserved for the Senate. I asked him at that private meeting before the hearing.

It wasn't taking him by surprise in any way to look at the Constitution. I told him I would ask the question again at the hearing. I informed him that his answer on this question would weigh heavily on my decision whether to support his confirmation.

At the hearing, when I asked Judge Gonzales about the nuclear option, rather than being candid, he completely avoided the question, ducking, dodging, and weaving.

I asked him three times to give his opinion, and each time he refused. I asked him twice more in writing, and again he refused to answer. In one of those questions, I simply asked him to imagine he was counsel to a U.S. Senator who was seeking his opinion on the constitutionality of the nuclear option, and no interference in serving the

President. Again, he refused to answer.

This is a crucial issue for me for two reasons. First, the importance of the nuclear option; and second, the importance of
Judge Gonzales's independence as Attorney General.

I believe the nuclear option would be so deeply destructive it would turn the U.S. Senate into a legislative wasteland and turn the Constitution inside out. Madison's "cooling saucer" would be shattered into shards.

Judge Gonzales in his refusal to answer such vital questions and even giving opinions so that we might see the way he thinks weighs a lot with me, at least in terms of my vote, not in terms of him as a person.

The matter repeated itself on question after question. On torture and nearly everything else, it seemed as if Judge Gonzales was going out of his way to avoid answering. He demonstrated a lack of straightforwardness and independence on just about every single question he was asked-again, no glimmer of light between how he might see things and how the President might see things.

When you are the chief law enforcement officer of the land, when you are asked to rule on sensitive questions that balance liberty and security, you can't just do what the President wants all the time or you are not serving your country or serving the job. It is different from other Cabinet positions.

I concluded that Judge Gonzales still sees himself as a White House Counsel rather than the nominee to be Attorney General, the chief law enforcement officer of the land.

I have great respect for the judge. The Horatio Alger story that he had makes all of us proud to be Americans. It makes us glad about the future of new communities as they rise in America. It is truly an amazing country when a man can rise from such humble beginnings to be nominated Attorney General.

I am mindful of the fact that if he is confirmed, as I anticipate he will be, Judge Gonzales will be the Nation's first Hispanic Attorney General. It is a tremendous success story that makes this vote even more difficult, although I am also mindful of the fact that the Hispanic Caucus voted against his nomination.

When I called Judge Gonzales last week to tell him how I would be voting, he was understandably disappointed but he was, as always, a gentleman. He assured me we would continue working together to solve our Nation's problems. He assured me he would prove me wrong, and I hope he does.

It was one of the most difficult conversations I have had in a long time. But it is too significant a job and too important a time to have an Attorney General about whom we have such severe doubts.

I have no choice but, with sadness, to vote no.

I yield the floor.

http://thomas.loc.gov