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

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[Pages S1965-S1966]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                       Nomination of Vanita Gupta

  Now, you might ask why Republicans felt so strongly about speaking on 
Ms. Gupta's nomination before the vote was cast in the committee 
markup. Well, it might have something to do with the fact that Ms. 
Gupta's answers to questions were troubling to many members on the 
committee, including answers to questions regarding a wide range of 
topics, including the legalization of narcotics, eliminating qualified 
immunity, defunding police, the death penalty, among many others, and 
the fact that it appears that many of those answers were inconsistent 
with her past statements, and in other cases, difficult to defend.
  When before the Judiciary Committee, Ms. Gupta provided answers to 
questions regarding some of these evolving positions. Many of those 
answers were less than compelling--indeed, she seemed to be intending 
to distance herself from fairly radical positions that she had, in 
fact, taken in the past.
  Before the same committee, the Senate Judiciary Committee, the very 
same Judiciary Committee that recently had this markup vote that ended 
in a violation of the Senate rules--before that very same committee 
last year, on June 16, 2020, Ms. Gupta testified under oath that 
leaders must ``heed calls . . . to decrease police budgets and the 
scope, role, and responsibility of police in our lives.'' When asked 
about her advocacy for defunding the police, Ms. Gupta said that she 
``disagreed'' with that characterization.

[[Page S1966]]

  Even the Washington Post, not exactly a conservative media outlet, 
caught Ms. Gupta's flip-flop, correctly characterizing her June 16, 
2020, testimony as ``exactly what `defunding the police' is all about. 
Now Gupta says she has never supported the idea.''
  Now, does President Biden really think it is a good idea to put 
radical ideologues who have publicly espoused support for defunding the 
police in charge of the Department of Justice?
  Well, perhaps he does, as evidenced by his nominations of Vanita 
Gupta and Kristen Clarke for top roles.
  I am concerned about Ms. Gupta's apparent disregard for Americans who 
hold views dissimilar from her own. In 2018, she tweeted that Senator 
Susan Collins had failed her constituents based on her support for 
Justice Brett Kavanaugh and was ``sending a dangerous message'' to 
survivors of sexual assault.
  While Ms. Gupta repeatedly asked Senators for forgiveness for her 
many inappropriate tweets and asked for a second chance, it is 
significant here that she didn't give that second chance to others when 
the shoe was on the other foot.
  For example, when Ryan Bounds was nominated to the U.S. Court of 
Appeals for the Ninth Circuit, Ms. Gupta said the following about some 
comments he had made when he was in college:

       While he has recently apologized for those comments, the 
     timing of that apology suggests it is one of convenience 
     rather than remorse, offered in a last-ditch effort to 
     salvage his nomination and win the support of his home-state 
     senators.

  It appears here that Ms. Gupta perhaps wants to provide no grace, no 
second chance to others for things they wrote in college but then has 
asked for Senators to give her grace and a second chance for 
insensitive statements from only a few years ago or, in some cases, 
only a few months ago.
  If past practices are any indication, I am concerned that she might 
begin to wield the Department of Justice as a weapon of sorts against 
anyone and anything holding different views from her own and that she 
may do so aggressively by conducting as many expensive, hostile 
pattern-and-practice investigations against State and local law 
enforcement as she can, whether they are warranted or not, if, in her 
view, they somehow deserve it or they somehow disagree with her. Based 
on her past use of pattern-and-practice investigations while she was 
running the Department of Justice's Civil Rights Division, I worry that 
she might subject State and local law enforcement jurisdictions to 
lengthy and expensive review requirements, forcing them to buckle under 
her policy preferences and sending warning messages to other 
jurisdictions.
  I am concerned that she might inappropriately rely on the outside 
activist groups for which she has lobbied to formulate policy and 
practices for the Department of Justice and State and local law 
enforcement agencies. I am concerned, too, that she will use third-
party settlement agreements to reward the activist groups for which she 
has lobbied at the expense of others.
  Now, advocates of Ms. Gupta claim frequently that she is a consensus 
builder. I don't doubt that. In fact, I would note here that Ms. Gupta 
and I have worked on the same side of issues that I care deeply about, 
and I note here that I find her to be a delightful person and a 
remarkably gifted mind and lawyer. She is very talented, and she is 
someone who seems to be a genuinely nice person in many, many ways. But 
if we are going to talk about consensus building, I think a fair test 
to evaluate whether someone is a consensus builder might involve 
looking at how they treat those with whom they disagree. Unfortunately, 
Ms. Gupta's public statements don't necessarily result in flying colors 
on that test. Again, the issue here is not whether she agrees with 
those who disagree with her. We have already established that she 
disagrees with those who hold different views than her own. The 
question is, How does she treat them?

  Here is what Ms. Gupta said about Judge Sarah Pitlyk:

       Sarah Pitlyk is unqualified and unfit for a lifetime 
     position on our federal courts. . . . She has defended the 
     most extreme, anti-abortion laws our Nation has seen to date.

  This is what she said about Judge Lee Rudofsky:

       Rudofsky . . . has challenged the constitutionality of 
     reproductive rights under the Fourteenth Amendment and has 
     effectively asked the Supreme Court to overturn Roe v. Wade 
     and Casey v. Planned Parenthood. . . . Rudofsky is unfit and 
     would bring a clear bias to the bench.

  In a 2017 blog post, Ms. Gupta advocated for forcing Colorado baker, 
Jack Phillips, to create a custom-designed cake celebrating a same-sex 
wedding even though it would violate his religious beliefs. She said:

       Religious liberty is not a talisman that confers absolute 
     immunity from any personal constraints at all: At times, the 
     free exercise of religion yields to other foundational 
     values, including freedom from harm and [freedom from] 
     discrimination.

  Now, fortunately, in this instance, Supreme Court Justices--seven of 
the nine Supreme Court Justices, in fact--disagreed with her position 
in the Masterpiece Cakeshop case.
  Now, she has reiterated this sentiment time and time again. In 2017, 
she tweeted: ``Yes, freedom of religion is a fundamental right, but it 
is not an absolute right.''
  After the Supreme Court ruled in favor of the conscience rights of 
the Little Sisters' of the Poor, she called the decision ``troubling'' 
and ``discrimination sanctioned by the Court,'' writing that ``this 
type of discrimination will potentially inflict harm on hundreds of 
thousands of people and disproportionately impact women of color and 
people in lower-income groups.''
  Now, let me be very clear on this issue. Let me be very clear about 
what she was talking about. Ms. Gupta in that statement was indicating 
that she thought the government should force a convent of nuns who have 
taken vows of celibacy to provide birth control against their religious 
convictions.
  That is troubling, and that is not consistent with our understanding 
of the free exercise of religion. Look, no one would argue that any one 
constitutional right is absolute, in that no other consideration can 
ever come into play. No one would argue that a generally applicable 
religiously neutral law can have no application ever where it conflicts 
in some way with an assertion of religious freedom. We are not talking 
here about whether it is absolute or not. But her own application of 
that would be deeply troubling I think to most Americans.
  What also concerns me is whether, with the force of the U.S. 
Department of Justice behind her, whether she is capable of respecting 
the constraints of the law, of the Constitution, and of federalism.
  In her efforts to push her policy preferences and reward those with 
whom she disagrees, I am very concerned that she might stretch the 
boundaries of her authority much further than it was ever intended to 
go.
  Ms. Gupta has exhibited on Twitter and elsewhere that she is someone 
who holds very strident political views, views that many would regard 
as very radical, and I feel neither confident nor comfortable that she 
will respect those with views contrary to her own.
  On that basis, I urge my fellow Senators to vote against Ms. Gupta 
and this illegitimate motion to discharge. I urge President Biden to 
send us nominees who will achieve his stated goal of unifying our 
country and not dividing it.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Van Hollen). The Senator from Illinois is 
recognized.