washingtonpost.com  > Politics > Bush Administration
Page 5 of 5  < Back  

Text: Gonzales Nomination Hearing

FEINGOLD: ... I just want to say that the previous attorney general referred to librarians in this country as being hysterical in their concern with regard to this.

They were not hysterical about it and it does need the kind of review that the chairman has called for. I think it could be a great moment for the Senate when we take up this legislation and look at the problems with it and come together to fix it.

FEINGOLD: And I thank the chairman for that.

Welcome, Judge Gonzales, and congratulations on your nomination.

In accepting the president's nomination to be attorney general, you said, "The American people expect and deserve a Department of Justice guided by the rule of law." I couldn't agree with you more.

One of the things we, as senators, must decide in considering your nomination is whether as attorney general you will give the American people what they expect and deserve from their government. And I have a few questions to follow up on that.

First I want to follow up on you answer to Senator Kennedy and Senator Leahy regarding the OLC memo. You told Senator Leahy that you didn't want to politicize the work of career professionals of DOJ, so you couldn't weigh in against the interpretation of the law that was expressed in that memo.

But then you told Senator Kennedy that it was totally appropriate to have discussions with the DOJ while the memo was being prepared because it was a complicated statute that had never before been interpreted.

I think there's something of a contradiction there, which I'd like you to comment on, but I'd like to make two other points first.

First, the authors of the torture memo, in fact, Judge, were political appointees, not career professionals.

Second, the issue is whether you disagreed with that memo and expressed that disagreement to the president.

You're the president's lawyer. Isn't it your job to express your independent view to the president if you disagree with the opinion of the Justice Department? Or do you just simply pass on the DOJ's opinion no matter how erroneous or outrageous, and just say to the president in effect, "This is what the DOJ says the law is"?

GONZALES: Thank you, Senator, for that question.

Let me try to clarify my comments regarding my role in connection with the memo and my role generally, as I view it, as counsel to the president.

It is, of course, customary, and I think to be expected, that there would be discussion between the Department of Justice and the counsel's office about a legal interpretation of, say, a statute that had never been interpreted before, one that would be extremely emotional, say, if you're talking about what are limits of torture under a domestic criminal statutes. And so there was discussion about that.

But I understand and it's my judgment that I don't get to decide for the executive branch what the law is. Ultimately, that is the president, of course. But by statute, the Department of Justice is given the authority to provide advice to the executive branch.

And so, while I certainly participate in discussions about these matters, at the end of the day, that opinion represents the position of the department and therefore the position of the executive branch.

FEINGOLD: Well, I'm puzzled by that because I think it must be your job as counsel to the president to give him your opinion about whether the DOJ document was right before he makes a judgment to approve it.

And I always assumed, anyway, that that would be the job of the president's lawyer.

GONZALES: I certainly do, of course, give the president my own opinion about particular matters.

GONZALES: But as I said earlier in response to a question, my own judgment, my own conclusions very often are informed and very often influenced by the advice given to me by the Department of Justice. And often I communicate with the president not only, sort of, my views, but the views of the department, which, of course, by statute, that's their job to do, and so that the president has that information in hand in weighing a decision.

FEINGOLD: I'm still puzzled by it. If you were my lawyer, I'd sure want to know your opinion about something like that independent. But let me move on.

I want to now ask you about the role you had when you were counsel to then-Governor Bush. You prepared what are referred to as clemency memos summarizing a particular death row inmate's case and his plea for clemency from the governor.

As I understand it, you and your staff would prepare these memos and then present them to the governor, who would make a final decision on whether to deny or grant clemency to the inmate with an imminent execution date.

Now, according to my staff's review of the clemency memoranda, it appears that you presented these memos to the governor almost always on the day of execution. Why is that? On such a grave matter as life and death, why was the decision left until the day of execution?

GONZALES: The ultimate decision may have been left or came close to the time of the execution because that was the desire of the governor.

However, those memos reflect a summary of discussions that often occurred between my office and the governor in connection with every execution. It was not unusual -- in fact it was quite common -- that I would have numerous discussions with the governor well in advance of a scheduled execution.

We often knew when executions were scheduled. If I were in talking to the governor about a particular matter and we had an opportunity, I would say, "Governor, we have an execution coming up in three weeks. One of the bases of clemency I'm sure that'll be argued is, say, something like mental retardation. These are the issues that have to be considered."

And so there would be a rolling series of discussions in connection with every execution. But as to when the ultimate decision was going to be made, it was often the day before or the day of an execution.

And an additional, very important reason for that is because a governor under Texas law has very limited authority under the constitution to grant clemency.

GONZALES: He can only grant clemency, he can only grant a pardon, he can only grant a commutation, he can only grant a reprieve, beyond 30 days upon a recommendation of the Board of Pardon and Parole.

And often the board would not meet and would not vote until just prior to an execution. And of course, the governor wanted to wait and see what recommendation the Board of Pardon and Parole had, with respect to a request for clemency.

FEINGOLD: I recognize that.

It's true that the Texas governor has a more limited clemency power, compared to other governors.

But the governor does appoint the members of the Board of Pardon and Paroles. And I think his grant of a reprieve could have signaled to the board that a case deserves closer attention.

I guess I want to know -- in this way you just described, the process worked -- did you ever seek additional time in order to allow the governor adequate time to review and understand a case?

In other words, after he read the memo that was presented on the day of the scheduled execution, was there ever an occasion when more time was requested?

GONZALES: I don't remember an occasion when more time was requested when we presented that final memo.

I do remember many occasions when I would go to the governor and talk about the facts of a particular case and the basis of clemency and the governor would -- if I expressed concerns or questions, the governor would direct me to go back and find out and to be absolutely sure, because while the governor believed in the death penalty, he believes that it deters crimes and saves lives, he also believes very firmly that it should be applied fairly and only the guilty should be punished.

FEINGOLD: Well, on that point, one of the cases involved an inmate on death row named Carl Johnson. He was executed in September 1995, during the first year that Governor Bush was in office, and you were his counsel on these matters.

Mr. Johnson was represented by a lawyer named Joe Cannon, who slept through the major portions of the trial and who was apparently notorious in legal circles for this behavior.

In his challenges appealing the trial and conviction, Mr. Johnson argued consistently that he had had ineffective assistance of counsel, primarily based on the sleeping lawyer who represented him at trial.

In your memo to the governor discussing this case and in pending execution, however, you failed to make any mention whatsoever of the basis for Mr. Johnson's appeal. You go to great lengths to describe the underlying facts of the murder, but there's no mention at all of the fact that this lawyer slept through the major portions of the trial.

I'd like you to, in a second, explain this omission. I want to know how the governor could have weighed the clemency memo fully and properly if you had failed to even indicate the basis for the clemency request.

clemency.

GONZALES: He can only grant clemency, only grant a pardon, he can only grant a commutation, he can only grant a reprieve, beyond 30 days upon a recommendation of the Board of Pardons and Parole.

And often the board would not meet and would not vote until just prior to an execution. And of course, the president -- the governor wanted to wait and see what recommendations the Board Of Pardons and Parole had, with respect to a request for clemency.

FEINGOLD: I recognize that.

It's true that the Texas governor has a more limited clemency power, compared to other governors. But the governor does appoint the members of the Board of Pardon and Paroles. And I think his grant of a reprieve could have signaled to the board that a case deserves closer attention.

I guess I want to know -- in this way you just described the process worked -- did you ever seek additional time in order to allow the governor adequate time to review and understand a case.

In other words, after he read the memo that was presented on the day of the scheduled execution, was there ever an occasion when more time was requested.

GONZALES: I don't remember an occasion when more time was requested when we presented that final memo.

I do remember many occasions when I would go to the governor and talk about the facts of a particular case and the basis of clemency and the governor would -- if I expressed concerns or questions, the governor would direct me to go back and find out and to be absolutely sure because while the governor believed in the death penalty, he believed that it deters crime to save lives, he also believes very firmly that it should be applied fairly and that only the guilty should be punished.

F: Well, on that point, one of the cases involved, an inmate on death row named Carl (ph) Johnson. He was executed in September 1995, during the first year that Governor Bush was in office and you were his counsel on these matters.

Mr. Johnson was represented by a lawyer named Joe Cannon (ph), who slept through the major portions of the trial and who was apparently notorious in legal circles for this behavior.

In his challenges, appealing the trial and conviction, Mr. Johnson, argued insistently that he had had ineffective assistance of counsel, primarily based on the sleeping lawyer who represented him at trial.

In your memo to the governor discussing this case and in pending execution, however, you failed to make any mention whatsoever of the basis for Mr. Johnson's appeal. You go to great lengths to describe the underlying facts of the murder, but there's no mention at all of the fact that this lawyer slept through the major portions of the trial.

I'd like you to, in a second, explain this omission. I want to know how the governor could have weighed the clemency memo fully and properly if you had failed to even indicate the basis for the clemency request.

FIX MATCHn does not formally apply to terrorists.

And so, I'd like to just quickly refer specifically to the pages, and I'd like to ask unanimous consent that they be made part of the record.

CORNYN: First, page 379 through 380, where the 9/11 Commission says that since the international struggle against Islamic terrorism is not internal, these provisions do not formally apply.

And then the Schlesinger report, which studied the Department of Defense detention policies, which concluded that there were no high- level policies or procedures in place that would allow for torture or abuse of detainees. On page 81 they say, "The panel accepts the proposition that these terrorists are not combatants entitled to the protection of the Geneva Convention."

And then there was the reference I made to the Red Cross manual on the Geneva Convention, which on page 53 sets out the three-part test on whether the Geneva Convention actually applies under any given circumstances.

And I would like to ask unanimous consent that those be made part of the record, and I'm confident they will.

But let me ask you this: This has also been tested in three separate federal courts, has it not?

GONZALES: It has.

CORNYN: And what's been the result?

GONZALES: That the president's decision was the correct legal decision.

CORNYN: And let me, even though lawyers can disagree about judgments, legal judgments or opinions -- here again, I hope we don't disagree about certain basic facts, and that's the reason I wanted to go over the content of these documents, which the senator from Delaware suggested I was mistaken about.

Let me ask you whether you agree with this proposition. Do you agree that the United States government should use all lawful means to gather intelligence from terrorists in order to save American lives?

GONZALES: I do agree with that.

Obviously, that is a policy decision. I think that that is the position of the president of the United States, because, as I said earlier, the war on terror is a war about information, and we need information to be successful in winning this war.

CORNYN: Well, you will not be the only witness in this hearing.

CORNYN: And here again, we're going to hear, I anticipate, since we've had the chance to see their prepared testimony, from other witnesses who may express different opinions than you've expressed here, as well as the opinions expressed by the 9/11 Commission, the Schlesinger report, and those three federal courts.

But I for one do think you have been candid in response to the questions, and I don't suggest I'm the only one. I just know there was a suggestion that there had not been complete candor on your part, but I do believe you have been.

And I think that this committee is exercising its constitutional responsibility to ask you hard questions. But I trust that those questions will always be good faith questions; they'll not be motivated by some improper purpose, partisanship or otherwise.

And so, I'm glad you're here today. I'm glad the committee is asking you hard questions. But I hope that we never cross the line into partisanship or improper motive in asking some questions.

Finally, let me just say that there was some suggestion that you have been less, or the White House has been less than responsive about requests for documents.

And let me just hold up here what I believe to be part of the response that the White House has made to the request by Senator Leahy and others on the other side of the aisle with respect to documents of your office.

Does that look at least like a part of it?

I won't have you go through them page by page. But have you produced voluminous documents, has the White House produced voluminous documents in response to committee requests?

GONZALES: Senator, it's hard for me to gauge whether or not that reflects our response. Because of my nomination, I have recused myself from any decisions regarding production of documents that this committee has requested in connection with my nomination. Decisions about production of documents are being made by others at the White House, as it should be.

CORNYN: Well, thank you for that clarification.

It's my understanding -- I've been advised that the White House has complied completely with the request for documents with two exceptions.

CORNYN: One is a document which the White House is claiming wherein the president has received confidential and candid advice from senior advisers relating to the memorandum concerning the application of the Geneva Convention to Al Qaida and the Taliban.

The second document that the White House has declined to produce is an Office of Legal Counsel opinion dated November the 6th, 2001. And the reason stated is because that is currently the subject of litigation.

I would just say that this committee last year had the occasion to revisit the importance of our ability as senators to receive confidential advice from our own staff. And we learned, unfortunately, that there had been a theft of some staff memos to senators. And that now has been referred for investigation and possible prosecution.

But do you recognize the importance, as a general principle, of confidential communications between the president and his senior advisers, or, for that matter, between the United States Senate and our staff?

GONZALES: I think it is a very important principle, Senator, that needs to be respected. I think the principals should be able to rely upon candid advice from their advisers.

I've seen in four years how it does make a difference in affecting the way you present advice, if not the advice you actually give.

And so I think that that is a principle that should be respected.

Now, of course there is a competing principle as well, and that is sometimes there is a strong or legitimate government purpose to try to receive information and to look at that information either as part of some kind of criminal investigation or part of the oversight function of a committee.

But that always involves a balancing, it seems to me, it's sort of a case-by-case analysis in terms of where do you draw the line as to when to produce deliberative information and when not to.

But, yes, I think is a principle that one should always be mindful of is the fact that you don't want to inhibit candid advice to principals, otherwise, in my judgment, you do inhibit the decision- making of that principal. And I don't think that's good for the American people.

CORNYN: Well, Judge Gonzales, thank you very much for your response to those questions and your appearance here today. My experience, just in the brief time I've been in Washington, is that there are very few secrets, because this place leaks prolifically.

And if you want to find out what's going on in Washington or at the highest levels of government, all you have to do is pick up the daily newspaper or watch cable news and you will find out almost as much as you do by sitting in on classified briefings.

That's been my experience; it may not be typical.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Cornyn.

SPECTER: Senator Schumer?

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

SPECTER: Thank you.

SCHUMER: You have all the good qualifications for it. So thank you.

And thank you, Judge Gonzales.

You know, 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. And 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 reexamined, because the world has changed dramatically, and what governed when the War of the Roses was fought doesn't 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.

SCHUMER: That happened in torture, where there's 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 are you going to approach these serious 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're 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, don't mirror my views. Most of them are pro-life and more conservative on most issues, but they're mainstream. I really believe that they were interpret the law.

That's not what's happened nationally. We have had on most circuits just a throw down the gauntlet, "Here is who we want. You better approve him. And if you don't approve him, you're obstructionist" -- even though we've 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 -- 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 weren't strict constructionists. They weren't following the law.

SCHUMER: 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're going to have a Supreme Court nomination 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's a different job; it's 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're 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'm 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's happened in the rest of the -- or many of the other circuits?

GONZALES: Thank you, Senator.

First of all, let me make it clear, I am not a candidate for the Supreme Court.

SCHUMER: Right. Just making sure that everyone knows, in case that should happen, one standard's different than the other.

GONZALES: I'm focused on this...

SCHUMER: I understand that.

GONZALES: I want to thank you for your work in connection with filling federal judgeships in New York.

I agree with you. We've been able to, 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've been judges. They have been rated well-qualified or qualified by the American Bar Association, as you well know.

SCHUMER: Yes. But they don't rate on their views; they rate on their integrity and demeanor. I mean, a judge who believes there should be no zoning laws, which was one of the people you nominated, is 1890s.

GONZALES: I'm 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...

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're doing this one"?

GONZALES: Well, in my judgment, consultation has always been good. It has been fruitful. I will certainly make the president aware of your request.

SCHUMER: 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 Senate 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's no right to privacy in the Constitution; it doesn't 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?

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

SCHUMER: You know the Constitution. We're asking you to be attorney general. Are there any words that say only majority vote for judges?

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

SCHUMER: I'll ask you to ask (ph) that in writing, and find me those words.

Second, I'd 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?

GONZALES: Senator, we talked about this in our meeting, and my answer...

SCHUMER: We did, and you were going to think about it.

GONZALES: ... and my answer today...

SCHUMER: You've had time to think about it.

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's constitutional.

From my perspective, and from the perspective of the White House, this is an internal Senate matter to be resolved within the Senate.

SCHUMER: Well, you know, I'm going to ask you to think about that over the next several hours. This is something that I think is important, and I don't think you should be able to duck it, because the very functioning of our government could be at stake.

One final question...

SPECTER: Senator Schumer, your red light is on.

SCHUMER: OK. We'll have a second round, Mr. Chairman?

SPECTER: A second round.

SCHUMER: Thank you.

SPECTER: Senator Brownback?

BROWNBACK: Thank you very much, Mr. Chairman. It's good to be back on the committee and welcome you as chairman.

And I welcome Judge Gonzales. And (inaudible) delighted in your public service, the state of Texas, the United States, and what I believe will be soon as attorney general of the United States.

BROWNBACK: Delighted to have you here; welcome to your family, as well.

I love the name of the town you're from of (ph) Humble, Texas. I think that's a great place for a public servant to come from. And it reminds you of the proverb that humility comes before honor. And you come from the right place to be honored with this type of position.

I want to ask you about a couple of areas. We've had a lot of questioning about the Geneva Convention, the issues surrounding that. I'm pleased that those would come out.

And that in your job -- I want to follow up on what Senator DeWine was asking about, what you hope to be known for in the position as attorney general.

Obviously, the primary task is protecting the security of the country and the people here. And I don't want you ever to take your eye off of that ball, and I'm sure you won't, that it's the war on terrorism, it's protecting the security of the American people, and that's got to be your primary focus and function and measure of success of the agency, is (inaudible) the American people protected.

I do want to ask you about a couple of other areas of what I hope would be opportunity, because it's a large agency and there's a number of different functions and areas that go on.

One, there's a bill we put in last year, a bipartisan bill that the president spoke about in his State of the Union message last year on dealing with prison recidivism, prisoner recidivism rates. I realize this is off of virtually everybody's radar screen in this hearing.

BROWNBACK: But if you look at it for an issue that's affecting our country, once a person goes into our court system now and is convicted, 70 percent of them are going to commit another crime and be convicted again.

It's an enormous rate of recidivism that we have. It's a huge price tag. And of course, spending at the state level is $28 billion- plus a year; prisons' annual operating costs of over $22,000 per inmate.

And that is as it needs to be. We need to lock people up that commit crimes.

But the president sided (ph) on this -- and I agree, and I put forward a bipartisan bill, a bicameral bill with Senator Biden, Rob Portman, in the House, on targeting reducing that recidivism rate, cutting it in half in five years with a -- we called the bill a second chance act. And it's just targeting those prisoners within two to three years of getting out, for intensive work with them, intensive counseling, relationship building for when they are in, when they get out -- to try to really track that rate.

Also, children of prisoners are five times more likely to commit a crime than the general population. And so we need to target in on that group.

And I put this forward as a compassionate conservative topic, because I think this is one where we need to lock people up that commit crimes, but we know they're going to come out at some point and time too, most. And we really also need to work with them.

I'm hopeful you can work with us on this issue, because I think this is one of those topics that we can have an agreement across the aisle that this needs to be addressed.

There's ways to address it. We have a faith-based prison in Kansas that the recidivism rate is below 10 percent. We've got other examples across the country of where this has been attacked and addressed quite successfully.

And so I'm hopeful that can be one of your legacies that you work on, as well. If you have a short response on that.

GONZALES: I do, Senator. I believe that it's not only smart, but it's right. I think that we have an obligation to provide some kind of support structure, to provide some kind of training to people that are coming out of prison. It's the right thing to do.

It's certainly smart, because we simply don't want to have people that come out of prison immediately go out and commit crimes. They can't support themselves. And so we have to provide some kind of way for these folks to support themselves.

There are a lot of prisons in Texas. Obviously, this is a problem that Governor Bush was focused on, so he's keenly aware of this. That's why he spoke about this in the State of the Union.

I believe the Department of Justice is doing some research about what kinds of programs really work. And so I look forward to the end of that research and sitting down with you and talking to you about what would be the most effective way to deal with this problem.

BROWNBACK: I think the American people want us to get outcomes, things that work. Welfare reform was something that worked, the country needed.

I really think this is a key area where we've got a chance to really do something that'll work, and it's going to help. And I think it's something we can work across the aisles to get done.

A second issue you raised with Senator DeWine during your comments about things you want to be known for, and that's the issue on obscenity laws and the enforcement of that.

I held a hearing last session of Congress on the issue of these -- not of obscenity laws, but on addictions to pornography. And it was an amazing set of experts that came forward talking about the addictiveness of pornography. It's grown much more potent, much more addictive, much more pervasive, much more impactful. You've cited teenage children you have, and that I have, and in our private conversation.

There's been criticism of Department of Justice for not enforcing obscenity laws, working on these issues, on community standards. I would hope that this would be something that you would take a look at, maybe make some personnel shifts within the Department of Justice, to address this from the law standards, on community standards, look at the addictiveness in the nature of it.

There are certain, obviously, guarantees of First Amendment rights, but there are also these laws that have been upheld by community standards, upheld by the Supreme Court, that can be and I really think should be enforced, given the nature of this very potent -- what one expert, you know, called it -- delivery system in this country. And I hope you can look at that.

GONZALES: I will commit to you that I will look at that, Senator.

BROWNBACK: I believe you said your wife had some interest in this. And I may recruit her on this topic as well. Even though she is not up for confirmation here, I'd work with her, as well.

Finally, there is a topic I wanted to give you a chance to address. While you were on the Texas Supreme Court, in June of 2000, and this came up during Judge Owen's hearing, of a case on a parental consent law that you wrote, I believe, a majority opinion on. And this was upholding the decision regarding a parental notification law where a minor sought an abortion.

In this particular case, a minor was seeking an abortion without, as was required by Texas law, notification of her parents. You had some pretty strong words for those in the minority opinion who thought the law should be applied as written and was affirmed by the trial court.

I just wanted to give you a chance to express your opinion on this case. It came up often during Judge Owen's confirmation hearing here. You were cited on the other side of that often, and I'd like to get your thoughts on that, here, for the record.

And do you believe that the interpretation of duly enacted legislation is open to interpretation by the courts in a manner not consistent with the strict reading of the law? That is the underlying issue involved with this.

GONZALES: Thank you for that question, Senator.

Let me just say, at the outset, regarding Judge Owen: I served with Judge Owen on the Texas Supreme Court. And I think she did a splendid job, a superb job as a judge. I think she would make a superb job (ph) on the Fifth Circuit, and that's why her name was recommended to the president.

There were a series of very contentious case opinions written in connection with six cases, I think, involving four minor daughters, in the year of 2000, while I was on the court.

It is true that the legislature made a policy judgment that they wanted parents more involved with abortion decisions of their minor daughters.

But the legislature did not make the parental rights absolute; they provided three exceptions. And most of the decisions of the court involved (inaudible) interpreting those exceptions, allowing a judicial bypass.

My comment about an act of judicial activism was not focused at Judge Owen or Judge Hecht. It was actually focused at me. What I was saying in that opinion was that, given my interpretation of what the legislature intended, by the way the words that they used, in terms of having a minor not totally informed or well-informed, but sufficiently well-informed, and the structure of the act, it was in my judgment that the legislature did intent the judicial bypasses to be real.

And given my conclusion about what the legislature intended, it would have been an act of judicial activism not to have granted the bypass in that particular case.

MORE


< Back  1 2 3 4 5

© 2005 FDCH E-Media