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Advise And Rubber Stamp

This Against the Grain commentary was written by's Dick Meyer.

When John Ashcroft was up for confirmation as attorney general, the Democrat on the job, Sen. Patrick Leahy, D-Vt., cautioned that the Constitutional role for the Senate was to "advise and consent" not "advise and rubber stamp." Four years later comes the nomination of Alberto Gonzales and the cowed Democrats are poised for a policy of "advise, snarl, bombast and then rubber stamp."

I am shocked (not "shocked, shocked" but sincerely shocked) that Gonzales will get a single Democratic vote, much less a relatively less easy confirmation. And I would have expected that some Republicans -- the ones who profess deep belief in the American mission of fostering Arab democracy, the ones who have renounced Secretary Rumsfeld, like McCain, Hagel, Lugar – would be struggling with their votes, too. But no.

If the Democrats in Congress are willing to stand for anything, it seems to me, they ought to be standing against the Gonzales nomination. "Fight" was the favorite verb of the past two democratic presidential candidates: fight for the little guy, the patient, the pensioner and fight against the rich, mighty and powerful.

Here's a fight worth having and the Democrats are settling for aggressively-intoned hearing questions and hand-wring aye votes.

The Gonzales hearing was a kabuki hazing. The most revealing and thus absurd moment came when Sen. Joe Biden harangued Gonzales for sidestepping tough questions, "This is not about your intelligence, this hearing is not about your competence, it's not about your integrity - it's about your judgment and your candor," he said. "We're looking for candor, old buddy. I love you, but you're not very candid so far."

But Biden used up his allotted time with this unpunctuated sermon leaving Gonzales no time to speak, much less speak with candor. That's the essence of confirmation hearings.

And remember, modern confirmations hinge on small things, not big things --messing up the withholding taxes for cleaning lady can doom a nominee. But torture and execution? Forget about it.

The foundation of what should be the opposition to Gonzales (and it should be bipartisan) is the legal counsel he gave Governor Bush and President Bush on the most important issues he faced; not important issues, the most important legal issues.

As White House legal counsel, Gonzales had an essential and influential role in crafting the legal rules that would govern administration's anti-terrorism policy. It's been well documented and the Senate Judiciary did grill Gonzales about it.

The Gonzales record, as it stands now, is clear and ought to be anathema to any Democrat:

  • his sanctioning of an August 2002 Justice Department memo that essentially condones torture in interrogation
  • his memo to the president that argued the Geneva Conventions didn't apply to aspects of the war on terror
  • his decisions to use military tribunals instead of courts and to designate U.S. citizens as "enemy combatants"

    Gonzales erred at every juncture. These decisions have all since been renounced by courts or by the relevant agencies. And, of course, they are closely tied to national embarrassments of Abu Ghraib, Guantanamo Bay and the abuse of Afghan and Iraqi prisoners by U.S. soldiers. Thus Gonzales' legal work for his client, the president, is tied to those failures.

    Gonzales told the senators on both sides of the grand podium that he renounced all torture and believes that the United States should abide by international treaties on human rights. Gonzales did have to endure some more aggressive questions but the whole hearing virtually assumed Gonzales would be confirmed.

    On the other key part of Gonzales' career: as counsel to Texas Governor George W. Bush, Gonzales' most important job (by Bush's own measure) was to brief the governor on each execution in the state. And in Texas -- there were a lot – 150 in Bush's six years as governor.

    Alberto Gonzales wrote an "execution summary" for the first 57 of those cases. Those memos were obtained by writer Alan Berlow, who wrote about them extensively in The Atlantic Monthly in the summer of 2003.

    Berlow wrote, "In these documents Gonzales repeatedly failed to apprise the governor of crucial issues in the cases at hand: ineffective counsel, conflict of interest, mitigating evidence, even actual evidence of innocence."

    Except for Sen. Russ Feingold, Democrats basically ignored his Texas record.

    Gonzales' wonderful Horatio Alger story seemed more important to the senators. "The road you've traveled," said Sen. Patrick Leahy, echoing the mood of his colleagues, "from being a 12-year-old boy, just about the age of your oldest son, selling soft drinks at football games, all the way to the state house in Texas and our White House is a tribute to you and your family."

    The fact that Gonzales is a Latino with a compelling life story is clearly putting handcuffs on the hapless Democrats. And what an irony it is that the Republicans are benefiting from a policy Republicans so routinely berate – essentially, it's affirmative action.

    It would be a fine milestone to see not only the first Latino attorney general, but the first Latino in a Big Four Cabinet job (AG, State, Defense, and Treasury).

    But at the level of attorney general, neither moving personal sagas nor broken racial barriers are qualifications; they are important and meaningful accomplishments for otherwise qualified candidates, like Colin Powell and Condoleezza Rice.

    Yet Henry Cisneros, Bill Clinton's secretary of housing and urban development who resigned in scandal, wrote in The Wall Street Journal: "As an American of Latino heritage, I also want to convey the immense sense of pride that Latinos across the nation feel because of Judge Gonzales' nomination … This is a major breakthrough for Latinos, especially since it is so important to have a person who understands the framework of legal rights for all Americans as attorney general."

    If Alberto Gonzales's record shows one thing clearly, it's that he is not such a person.

    Four years ago, the Democrats rolled over on the Ashcroft nomination. Then they rolled over on the Bush tax cuts, the authority to invade Iraq, the Patriot Act, No Child Left Behind and the Medicare reforms. None of that did them one lick of good in November.

    If the Democrats have the gumption to fight about anything, it ought to be about this nomination. But it appears they don't.

    Dick Meyer, a veteran political and investigative producer for CBS News, is the Editorial Director of, based in Washington.

    E-mail questions, comments, complaints, arguments and ideas to
    Against the Grain. We will publish some of the interesting (and civil) ones, sometimes in edited form.

    By Dick Meyer

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