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Advice and Consent


I've been thinking a lot about the Democrats' refusal to take Advice and Consent seriously of late. It's partly to blame for the whole, ugly, USA Purge.

In his testimony before the Senate Judiciary Committee investigating the USA Purge, Senator Mark Pryor said the following:

Moreover, due to the events of the past Congress, I've given much thought as to what my role as a senator should be regarding executive and judicial nominations. I believe the confirmation process is as serious as antyhing that we do in government. You know my record. I've support almost all of the president's nominations. On occasion, I have felt they were unfairly criticized for political purposes, for when I consider a nominee, I use a three-part test. First, is the nominee qualified?; second, does the nominee possess the proper temperament?; third, will the nominee be fair and impartial — in other words, can they check their political views at the door?

Pryor would have us believe that if a candidate fails his three-part test, then the candidate should not receive confirmation.

And yet, as Pryor himself admitted in this appearance, he himself voted for Alberto Gonzales to serve as Attorney General (and, astonishingly, he said he would vote for him again). Pryor was one of six then-Democrats who supported Gonzales, joining a predictable crowd: Landrieu, Lieberman, both Nelsons, and Salazar. The support of those six defeated any hope of filibuster. As a result, Pryor has only himself (and five colleagues) to blame for the fact that Gonzales ignored Pryor's clearly stated wishes, appointed Tim Griffin to an interim appointment as a way around Senate confirmation hearings, and proceeded to lie to Pryor about the reasons behind Griffin's appointment.

Yet this was the kind of answer that Alberto Gonzales offered in his own confirmation hearing. 

Feingold: The question here is what is your view regarding the President's constitutional authority to authorize violations of the criminal law, duly enacted statutes that may have been on the books for many years when acting as Commander in Chief? Does he have such authority? The question you have been asked is not about a hypothetical statute in the future that the President might think is unconstitutional. It is about our laws in international treaty obligations concerning torture. The torture memo answered that question in the affirmative, and my colleagues and I would like your answer on that today. I, also, would like you to answer this: does the President, in your opinion, have the authority, acting as Commander in Chief, to authorize warrantless searches of Americans' homes and wiretaps of their conversations in violation of the criminal and foreign intelligence surveillance statutes of this country?

Judge Gonzales. Senator, the August 30th memo has been withdrawn. It has been rejected, including that section regarding the Commander in Chief's authority to ignore the criminal statutes. So it has been rejected by the executive branch. I, categorically, reject it. And, in addition to that, as I have said repeatedly today, this administration does not engage in torture and will not condone torture. And so what we are really discussing is a hypothetical situation that-

Senator Feingold. Judge Gonzales, I have asked a broader question. I am asking whether, in general, the President has the constitutional authority, at least in theory, to authorize violations of criminal law when there are duly enacted statutes simply because he is Commander in Chief? Does he have that power?

Judge Gonzales. Senator, in my judgment, you have phrased sort of a hypothetical situation. I would have to know what is the national interest that the President may have to consider. What I am saying is it is impossible to me, based upon the questions you have presented to me, to answer that question. I can say that there is a presumption of constitutionality with respect to any statute passed by Congress. I will take an oath to defend the statutes. And to the extent that there is a decision made to ignore a statute, I consider that a very significant decision and one that I would personally be involved with, I commit to you on that, and one I will take with a great deal of care and seriousness.

This is a guy, auditioning to be our top law enforcement office, who would not even give a straight answer as to whether or not the President had to abide by our own laws. As ThinkProgress has documented extensively, Gonzales was already lying to Congress, well before the questions about why he fired 8 USAs arose. No wonder he proceeded to politicize the entire judiciary then lie about it to the Senators trying to get to expose that! Yet, even given such doozies, apparently, Senator Pryor determined that Alberto Gonzales had (and has!) both the proper temperament to be our top law enforcement officer–not to mention the ability to check his political views at the door.

Along with Condi, Gonzales was an exceptionally duplicitous, arrogant nominee. But no matter how obvious the lie, those same wishy-washy Democrats (along with Holy Joe) still approved the nominee. More often than not, a host of Democratic Senators, hoping to appear "reasonable," voted with the likes of Holy Joe.

I know I'm preaching to the choir at FDL. But I think this an appropriate time to remind our Senators (while they're all fired up) that they have a Constitutional duty not to allow themselves to be snookered by such bald-faced lying. Gonzales, Rove, and ultimately Bush are responsible for the politicization of our judiciary. But so are the Democrats who refused to take their oversight role seriously. We're going to be at war with these criminals for two more years. And we've got to make it clear that Senators understand they will be held responsible for this kind of cowardice.

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