March 25, 2021

Grassley Statement at Markup on Monaco, Gupta nominations; IDEA Act, ARTS Act

Prepared Opening Statement of Sen. Chuck Grassley of Iowa
Ranking Member, Senate Judiciary Committee
Executive Business Meeting
March 25, 2021

The terrible problem of gun violence is on all of our minds. After attacks in Atlanta and Boulder, we want to find solutions that will deliver results, and reduce crime. I’m glad we had a hearing earlier this week to drill down on which laws will be most effective. What will not be effective is broad laws that do not target the most common ways that criminals get access to firearms. We need to put our focus where it will do the most good.

Beginning in 2013, Senator Cruz and I introduced the Protecting Communities and Preserving the Second Amendment Act to cover the wide variety of issues we repeatedly saw holding us back from better combatting gun violence. Yesterday, we were reminded again that many of the fixes contained in that bill are still desperately needed. The GAO publicly released a report showing that trafficking of U.S.-sourced firearms into Mexico is a national security threat, as it facilitates the illegal drug trade and has been linked to organized crime. Our bill would fight that very threat, among so many others, by creating a new offense for firearm trafficking. Now is the time for this bill to pass. I thank my colleagues who have expressed interest in cosponsoring the bill, and I hope to hear from more of you.

We’re here today, though, to discuss and vote on two nominations and two bipartisan pieces of legislation. First, the legislation. We have two bills, S. 632, the IDEA Act, and S. 169, the ARTS Act. I support them both.

Now, as to the nominees, we have two of them. They’re nominees for the number two and number three posts at the Justice Department. The first nominee is Lisa Monaco, nominee to be Deputy Attorney General. This is a critically important role that helps keep our country safe. The DAG, as he or she is known, supervises the criminal prosecutions of the Justice Department, the law-enforcement agencies like DEA, FBI, and ATF, and the Justice Department’s counter-terrorism and national-security operations. Ms. Monaco has spent her career in national-security and law enforcement. She is a consummate professional. She’s a Democrat, sure, but one who follows the rule of law and, I think, gets up every day thinking how she can keep our country safe.

I worry that she’s going to be under a lot of pressure from the White House, outside groups, Congress, and even career attorneys to try to politicize the government’s response to domestic terrorism. I’ve asked her about it many times and I take her at her word when she told me “the focus should be on conduct and not ideology.” I intend to support Ms. Monaco.

The second nominee, Vanita Gupta, is more controversial. She’s been nominated to be Associate Attorney General, which is the number three spot at the Justice Department. There she would supervise the “civil” side of the Department including the Civil Division, the Antitrust Division, the Tax Division, the Civil Rights Division, the soon-to-be Environmental Justice Division and some others. As I have said before, Ms. Gupta has worked with my staff in the past on criminal justice reform. A couple years ago, Senator Durbin and I led the fight to pass the First Step Act. That was an important, bipartisan reform to our sentencing and incarceration systems. Ms. Gupta was part of the coalition that worked on that. I appreciate that work and the fact that criminal justice reform has long been a priority of hers.

Nevertheless, there’s more to Ms. Gupta’s record than criminal justice reform. Senator Durbin has pointed out that she’s the head of a major civil rights organization. That’s true. In that position, though, she has been a strident proponent of many far-left causes in testimony, in public letters, and on social media. Ms. Gupta, like all our nominees, says she wants to keep politics out of the Justice Department. That’s a good goal. But it’s hard to disentangle her legal career from her very progressive politics. She has tried to thread that needle, sometimes telling us that an offensive statement of hers or outlandish position she supported was one where she was just representing her organization. But she’s also told us we need to look at her whole career as a civil rights lawyer leading these organizations when evaluating her. Which is it? Do we look at what she did and said or don’t we? A number of us have tried to get her to help us think through this puzzle at her hearing and in written questions but her answers just seem to confuse things even more.

Something I have found troubling about Ms. Gupta’s answers to the committee is the inconsistent standard she applies to how nominees should be evaluated. In her previous job, Ms. Gupta led the charge against President Trump’s judicial nominees. When one of them said anything controversial, Ms. Gupta was there to say it was disqualifying. But when Ms. Gupta herself said something controversial, we were told it needed to be seen in context. Or if context is unavailable, that it’s worthy of forgiveness. To this day she has not accepted invitations to forgive Trump’s judicial nominees. The most startling example of this is on the question of Brown v. Board of Education. In the spring of 2019 Ms. Gupta led the attack against almost every Trump nominee because they had refused to say whether or not Brown v. Board of Education was correctly decided. It was, of course, and I don’t think anyone seriously thought any of them disagreed. Nominees would say that they’d follow Brown as settled law and binding precedent, like all Supreme Court precedent. But they weren’t comfortable, in the words of Justice Kagan, giving “a thumbs up or a thumbs down” on any given Supreme Court opinion. They did this for Brown and for Roe and for Heller. You name it they didn’t want to “grade” the Supreme Court.

At the time Ms. Gupta wouldn’t have it. She sent a letter to the Senate explaining that anyone who didn’t say that Brown was correctly decided failed to meet the “moral floor” for a federal judgeship. That was a shocking accusation at the time. So in written questions I asked her—as many of President Trump’s nominees were asked—to answer yes or no whether a series of cases was correctly decided, starting with Brown and going through Roe, Heller, and others. Ms. Gupta’s answer was: “If confirmed as a Department of Justice official, I will seek to ensure that the Department follows Supreme Court precedent as the law of the land.” In other words she wouldn’t answer whether Brown was correctly decided. In fact her answer was almost identical to many Trump nominees, whose answers were evidence of a desire to overturn Brown and roll back core civil rights protections, according to her as well as many members on the Democratic side. It’s hard to read this exchange and not conclude that Ms. Gupta didn’t really mean it when she accused countless Trump nominees of being secret segregationists.

It’s hard to square Ms. Gupta’s partisan progressive activism with her presentation as a pragmatic problem solver. That’s why it’s hard to figure out which views or activities she wants us to judge her by. It’s also why she seems to want us to apply different standards to her than she applied to President Trump’s nominees. I’ve tried to be fair to Ms. Gupta but I’ve found her answers are too inconsistent or evasive to make any clear judgments. That’s why I joined all my Republican colleagues in sending a letter to Senator Durbin requesting another hearing. That letter, citing Ms. Gupta’s record, testimony, and analysis from the Washington Post, concluded that her testimony to the committee has not been forthright. Citing, again, the standard she sought to apply to Trump’s nominees, it then called for another hearing to address these inconsistencies. I think it would help us all if Ms. Gupta came back and set the record straight on issues like defunding the police, qualified immunity, drug legalization, and capital punishment.

Without that I don’t think I can support Ms. Gupta. Her public record is simply too extreme and her testimony hasn’t helped me contextualize it in any meaningful way. I appreciate the work she has done on criminal justice reform, as I’ve said many times, but I don’t think running civil enforcement for the United States is the right place for a partisan progressive activist.