Nomination of Vanita Gupta (Executive Session); Congressional Record Vol. 167, No. 65
(Senate - April 15, 2021)

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[Pages S1960-S1962]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Vanita Gupta

  Mr. COTTON. Mr. President, Vanita Gupta is President Biden's nominee 
to be Associate Attorney General. She is unfit for that role. She is 
unfit because of her radical view that every single American and every 
single institution in the United States is inherently racist. She is 
unfit because she lacks the temperament to do the job, as evidenced by 
her relentless attacks on the integrity and character of judges and 
Senators alike, seemingly anytime she had a mere disagreement with 
them. She is certainly unfit based on her attempts to mislead the 
Senate in her Judiciary Committee hearing.
  Ms. Gupta has been before the committee many times as a partisan 
advocate. There is nothing wrong with that, but her past appearances do 
give us a glimpse of what she believes when she isn't seeking our votes 
for confirmation.
  Less than a year ago, June of last year, she came before the Senate 
Judiciary Committee to testify on police reform. When she was asked 
``Do you believe all Americans are racist?'' she replied under oath 
``Yes, I do.'' Think about that. The person nominated by Joe Biden to 
oversee, among other things, the Federal Government's civil rights 
enforcement says that she believes every single American is racist.
  This preposterous idea that anyone and everyone is inherently racist 
is at the core of the pernicious ideology pushed by the left called 
``critical race theory.'' But this position was not an anomaly, a 
misstatement, or a new position for Mrs. Gupta. In 2005, she published 
an article in the Fordham Law Review on what she called ``Critical Race 
Lawyering.'' In that article, Ms. Gupta argued that ``the rule of law'' 
and ``equal justice for all'' and ``equal protection'' aren't the great 
bulwarks of our liberty, aren't the single achievements of our Republic 
and our constitutional form of government, but instead ``code words''--
that is what she called them--for some kind of twisted racism. Anyone 
who thinks that the rule of law or equal justice for all or

[[Page S1961]]

equal protection are simply ``code words'' for racism is unfit for any 
position in our government but especially a position of leadership in 
the Department of Justice.
  The concerns with Ms. Gupta's nomination are not limited to extreme 
views on these topics. Ms. Gupta has made a career over the last few 
years on social media attacking the character and integrity of Federal 
judges, judicial nominees, and Members of the Senate. She accused four 
different jurists currently on the Supreme Court of being liars, 
extremists, ``dangerous,'' or ``opposed to civil and human rights.'' 
She must have had a macro; she just hit a shortcut button that said 
``opposed to civil and human rights.''
  By my count, she has leveled incendiary attacks on the integrity and 
character of around 50 currently sitting Federal judges. It could be 
more. I may have lost count when it got so high. I asked her about 
these attacks. While she said during her hearings that she ``regrets'' 
some of her rhetoric, she steadfastly refused to renounce these attacks 
on those judges.
  Ms. Gupta has leveled similarly caustic comments against Members of 
this body, posting online that dozens of Members of the Senate are--you 
guessed it--``opposed to civil and human rights.'' She accused one of 
our colleagues of being ``a disgrace,'' another of being a 
``hypocrite,'' and another of ``failing her constituents.'' At one 
point, she commented: ``How many of us are done with Susan Collins's 
concerns?''
  I want to be clear. Disagreement with or even deep dislike for 
Members of the Senate is not disqualifying for any position in the 
Federal Government. People are entitled to have their opinions. They 
are entitled to have their political views. But honestly, the Associate 
Attorney General of the United States must be able to effectively 
represent the United States in court while also working with Congress 
on important issues. It might be hard to represent the United States in 
court when you have accused dozens of Federal judges of being ``opposed 
to human and civil rights'' or being a ``disgrace'' or a ``liar.'' 
Likewise, I wonder what Senator Collins thinks about Vanita Gupta being 
done with her concerns.
  Perhaps most concerning, though, is that Ms. Gupta repeatedly misled 
the Judiciary Committee under oath. Every single Republican member of 
the Judiciary Committee joined a letter on March 23 outlining some of 
her most blatant misrepresentations that she made during her hearing, 
and we asked the chairman of the committee for a second hearing. That 
request was promptly refused.
  Mr. President, I asked unanimous consent that the March 23 letter be 
printed in the Record
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                   Washington, DC, March 23, 2021.
     Hon. Richard Durbin,
     Committee on the Judiciary,
     U.S. Senate, Washington, DC.
       Dear Chairman Durbin: On March 9, the Senate Judiciary 
     Committee held a hearing to consider the nominations of Lisa 
     Monaco, nominee to be Deputy Attorney General of the United 
     States, and Vanita Gupta, nominee to be Associate Attorney 
     General of the United States. While under oath, Vanita Gupta 
     misled the Committee on at least four issues: (l) Her support 
     for eliminating qualified immunity; (2) her support for 
     decriminalizing all drugs; (3) her support for defunding the 
     police; and (4) her death penalty record. Unfortunately, in 
     her responses a week later to our written questions, Ms. 
     Gupta was no more forthcoming. In some cases, she doubled 
     down on her misleading statements from the hearing, and in 
     others she refused to answer altogether. In ``response'' to 
     scores of our questions, she merely copied-and-pasted the 
     same inapplicable, general statements for one question after 
     another.
       We urge you to immediately schedule a second hearing with 
     Ms. Gupta so that she can answer for her misleading 
     statements, and for her refusal to respond to our written 
     questions. Indeed, Ms. Gupta herself asked for similar 
     measures in the context of past nominees. On November 20, 
     2017, Ms. Gupta issued an open letter in which she wrote 
     that, as a result of what she described as ``credible 
     evidence'' that two nominees were not forthcoming with the 
     Committee, ``Chairman Grassley must put politics aside and 
     bring back both nominees before the committee so that they 
     can be asked about their truthfulness under oath. Failure to 
     do so would abdicate the independent role of the Senate . . . 
     If the Senate Judiciary Committee is going to be taken 
     seriously by this and future administrations, it must demand 
     that nominees accurately respond to questions[.]''
       Ms. Gupta's misleading statements to this Committee 
     include, at minimum:


           1. Her support for eliminating qualified immunity

       During the hearing, Ms. Gupta was asked whether she 
     supported eliminating the doctrine of qualified immunity. She 
     responded that she doesn't ``support[ ] elimination one way 
     or another.''
       In June 2020, Ms. Gupta testified before this Committee 
     that ``Congress should end qualified immunity in Section 1983 
     claims.''
       When pressed about her June 2020 testimony before this 
     Committee, Ms. Gupta claimed those were not her own opinions, 
     but that she had been merely ``representing the consensus 
     views of the Civil Rights Coalition at the Leadership 
     Conference.'' But in June 2020, she said, ``I am pleased'' 
     (not that the Leadership Conference was ``pleased'') that 
     reforms she had recommended, including the elimination of 
     qualified immunity, were ``included in the newly introduced 
     Justice in Policing Act of 2020.''
       Additionally, during the June 2020 hearing, when one of the 
     other witnesses said that he believed qualified immunity 
     should be eliminated, Ms. Gupta added, ``I agree.''


              2. Her support for decriminalizing all drugs

       When asked whether she advocates for ``decriminalization of 
     all drugs,'' Ms. Gupta answered, unequivocally, ``No, 
     Senator, I do not.''
       Ms. Gupta doubled down on this misleading statement in 
     response to written questions, writing that she had ``never 
     advocated for the decriminalization of all drugs.''
       In a September 2012 op-ed in the Huffington Post, Ms. Gupta 
     wrote that ``States should decriminalize simple possession of 
     all drugs, particularly marijuana, and for small amounts of 
     other drugs.'' This directly contradicts Ms. Gupta's answers.
       A member of the Committee pressed Ms. Gupta for explanation 
     during the hearing, and referred to the September 2012 op-ed. 
     Ms. Gupta answered, ``Senator, I have advocated, as I believe 
     President Biden has, for decriminalization of marijuana 
     possession.''
       Later in the hearing, another member of the Committee 
     followed up on the question by reading aloud Ms. Gupta's 
     statement from the 2012 op-ed, to which Ms. Gupta responded 
     that she had only been ``speaking for [her] position today.'' 
     But her answer had specifically referred to her past-tense 
     advocacy when she stated she had only advocated for 
     decriminalization of marijuana possession, and her written 
     answers a week later explicitly claimed that she had 
     ``never'' advocated for decriminalizing possession of all 
     drugs.


                3. Her support for defunding the police

       During the hearing, Ms. Gupta repeatedly stated that she 
     did not ``support defunding the police.'' She added, ``I 
     have, in fact, spent my career advocating where it's been 
     necessary for greater resources for law enforcement.'' She 
     later added that she had advocated for greater law 
     enforcement resources ``at every point in [her] career.''
       These statements directly contradict her sworn testimony 
     before this very Committee on June 16, 2020, where she said 
     that leaders must ``heed calls . . . to decrease police 
     budgets and the scope, role, and responsibility of police in 
     our lives.''
       When pressed by a member of the Committee that her 
     statement in June 2020 was, by any measure, advocating for 
     defunding the police, Gupta responded that she 
     ``disagree[d]'' with that characterization. But Ms. Gupta 
     used the same characterization while speaking on a webinar 
     just two days after her June 2020 testimony, saying, 
     ``Localities have been overspending on criminal-justice 
     system infrastructure and policing and divesting in housing, 
     education, jobs, and healthcare. Some people call [changing 
     this] `defunding the police,' other people call it 
     `divest/invest.' ''
       The Washington Post--the same outlet that you cited in 
     defense of Ms. Gupta's nomination during a March 10 hearing 
     on another topic--correctly noted that Ms. Gupta's June 2020 
     statement was ``exactly what `defunding' the police is all 
     about. Now Gupta says she has never supported the idea.''
       A contemporaneous article by Reuters on June 8, 2020, also 
     noted that ``defund the police'' was a term ``being used by 
     activists to propose eliminating or cutting spending on 
     police departments, often the largest expense for 
     municipalities, and instead funneling the money to programs 
     for education, social welfare, housing, and other community 
     needs.''
       Any claim that Ms. Gupta was not aware that the policies 
     she espouses are what other activists mean by ``defunct the 
     police,'' directly contradicts how she described her own 
     policies just months ago.


                      4. Her death penalty record

       In response to a question about her prior statements 
     against the death penalty, Ms. Gupta said that, while she had 
     been an opponent of the death penalty, ``I also know how to 
     enforce the law. And I did so when I was in the Justice 
     Department before, when Dylann Roof committed the heinous act 
     against nine parishioners at the Charleston [Emanuel African 
     Methodist Episcopal] Church. And that prosecution and 
     conviction happened under my watch.''
       Ms. Gupta's statement suggested that she had supported the 
     application of the death

[[Page S1962]]

     penalty in the Dylann Roof case because it met the 
     requirements under the law, despite her personal feelings. 
     That was not the case. Contemporaneous reporting by the 
     Washington Post in 2016 noted that Attorney General Loretta 
     Lynch approved prosecutors seeking the death penalty for 
     Dylann Roof ``over the objections of some advising her, 
     including . . . Vanita Gupta, the head of the Justice 
     Department's civil rights division.''
       What Ms. Gupta said was that the ``prosecution and 
     conviction'' of Dylann Roof, including the application of the 
     death penalty, ``happened under [her] watch.'' She misled 
     Senators by neglecting to say that it also happened over her 
     objection.
       When asked about these contradictions in written questions, 
     Ms. Gupta found a new way to avoid answering: She said it 
     ``would not be appropriate . . . to discuss'' what she did at 
     the Department of Justice, either on the Dylann Roof case 
     ``or on any other matter [she] worked on during [her] prior 
     government experience.''
       Further, there remain significant questions about Ms. 
     Gupta's temperament, about which she refuses to answer even 
     simple questions. During her hearing, multiple members of 
     this Committee asked her about her harsh rhetoric and her 
     attacks on the character and integrity of sitting federal 
     judges and members of the Senate. In response, she told the 
     Committee that she ``regrets'' her rhetoric. Yet, in 
     responses to written questions after the hearing, Ms. Gupta 
     repeatedly and notably refused to renounce her previous 
     attacks, such as her prior assertions that four different 
     jurists on the Supreme Court are liars, extremists, 
     ``dangerous,'' or ``opposed to civil and human rights.'' 
     Instead, in response to written questions from multiple 
     members about her attacks on senators or the federal 
     judiciary, Ms. Gupta chose to copy-and-paste more than 40 
     times a generalized statement that she has either 
     ``tremendous respect'' or ``immense respect'' for judges or 
     for members of the United States Senate.
       Our call for a second hearing is not due to Ms. Gupta's 
     substantive views--either her longstanding views or her new 
     ones claimed only since her nomination. It's about her lack 
     of candor with the Committee. If her answers at the hearing 
     were misleading about her record, and in written questions 
     she shifted her answers again or refused to answer at all, 
     the Senate Judiciary Committee cannot perform its role to 
     consider her nomination.
       The position of Associate Attorney General is the third-
     ranking position in the Department of Justice. The Associate 
     Attorney General oversees, among other things, the civil 
     litigation and enforcement apparatus of the United States. It 
     is critical that the Associate Attorney General be someone 
     who can be trusted to tell the truth. Further, the Senate 
     must be able to trust that the testimony of public officials 
     under oath will be truthful and complete.
       Unfortunately, this is not the case with Ms. Gupta, and the 
     Committee should immediately schedule a second hearing.
           Sincerely,
         Chuck Grassley, Ranking Member, Committee on the 
           Judiciary; John Cornyn, U.S. Senator; Ted Cruz, U.S. 
           Senator; Josh Hawley, U.S. Senator; John Kennedy, U.S. 
           Senator; Marsha Blackburn, U.S. Senator; Lindsey O. 
           Graham, U.S. Senator; Michael S. Lee, U.S. Senator; Ben 
           Sasse, U.S. Senator; Tom Cotton, U.S. Senator; Thom 
           Tillis, U.S. Senator.

  Mr. COTTON. Finally, Mr. President, I have to observe something 
independent of Ms. Gupta herself. The discharge petition filed today 
requires that there has been a valid, tied vote in committee. That is 
the rule we all agreed to in the beginning of this Congress. Yet Ms. 
Gupta still has not received a valid vote in the committee. In fact, 
during the markup of her nomination, just minutes into my 15-minute 
remarks, the chairman of the committee cut off my remarks midsentence 
and called for a vote, in violation of committee rules. I guess somehow 
allowing members to finish their statements, which are guaranteed under 
the committees rules, had somehow become inconvenient for the 
scheduling preferences of our Democratic colleagues, or perhaps the 
committee's meeting had been mismanaged and they were worried about the 
2-hour rule. It wasn't just me. My remarks were interrupted. At least 
one Republican Senator didn't have an opportunity to speak at all. The 
Democrats simply broke the rules and voted out Ms. Gupta's nomination--
not in accordance with Judiciary Committee rules.
  There must be consequences when the Democrats break the rules. Here 
is what the consequences are going to be in this case. I will refuse 
consent or time agreements for the nomination of any U.S. attorney from 
any State represented by a Democrat on the Judiciary Committee. What we 
need to have is a valid vote in committee in accordance with the 
committee rules, not ramming through this nomination today.
  Today we are faced not only with the choice of whether Ms. Gupta is 
fit to be the Associate Attorney General, we are also faced with the 
question of whether to legitimize yet again the partisan bulldozing of 
the Senate's rules if those rules are even marginally inconvenient, 
even in committee session. Going down this path is not going to improve 
the Senate.
  I will be voting no, and I urge my colleagues to do the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I ask unanimous consent to be allowed to 
talk as in morning business for up to 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.