April 15, 2021 - Issue: Vol. 167, No. 65 — Daily Edition117th Congress (2021 - 2022) - 1st Session
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.