Confirmation of Alberto Gonzales as U. S. Attorney General

Media 01.26.05

Recipient: Sens. Specter (R-PA) and Leahy (D-VT)

The Honorable Arlen Specter
Chairman, Committee on the Judiciary
United States Senate
Washington, D.C. 20510

The Honorable Patrick L. Leahy
Ranking Member, Committee on the Judiciary
United States Senate
Washington, D.C. 20510

Dear Chairman Specter and Ranking Member Leahy:

On behalf of the Leadership Conference on Civil Rights (LCCR), the nation’s oldest, largest and most diverse civil and human rights coalition, we write to express our continuing grave concern regarding the confirmation of White House Counsel Alberto R. Gonzales as United States Attorney General. As set forth below, we strongly believe that an additional Committee hearing, the production of relevant documents under the Administration’s control which have not been previously made available, and more complete responses to written questions already posed are all necessary for a full and fair review of Mr. Gonzales’ confirmation. If these actions are not taken prior to a Committee vote, then we urge you to oppose the confirmation of Alberto Gonzales.

The Leadership Conference recognizes the historic significance of Mr. Gonzales’ appointment as the first Hispanic American to serve as Attorney General, and so the action we urge today is not undertaken lightly. The Attorney General is the nation’s chief law enforcement official, with responsibility for enforcing federal law on behalf of all persons under the Constitution. The failure to properly address concerns with Mr. Gonzales’ past record and clearly explain his positions on critical civil and human rights issues compels us to urge the Committee to withhold confirmation until Mr. Gonzales and the Administration can provide far greater clarity on these matters.

Earlier this month, LCCR sent the Committee a letter, signed by more than four dozen national civil and human rights leaders, that expressed numerous concerns with Mr. Gonzales’ record and urged close scrutiny. Despite a day-long hearing before the Committee, the submission of written questions by Committee members, and numerous inquiries by the press and the public, Mr. Gonzales and the Administration have not yet provided the Senate either with the critical information on his record or with the commitment to accountability and transparency that are prerequisites to the Senate exercising its constitutional duty of advise and consent on this nomination. We remain unconvinced that Mr. Gonzales would independently enforce the law, rather than continue to simply rationalize it, as he did while serving then-Governor and now President Bush.

Mr. Gonzales has not Addressed Serious Concerns Involving the use of the Death Penalty
The Leadership Conference on Civil Rights opposes the death penalty under all circumstances, but recognizes that it is the law of the land in many states and at the federal level. As the ultimate – and the only irreversible – sanction for criminal conduct, capital punishment must never be administered if a government has not exercised every reasonable precaution at its disposal to avoid putting an innocent person to death. A failure to ensure that every death penalty case receives fair and balanced treatment can easily lead to severe miscarriages of justice.

As General Counsel to then-Governor George W. Bush from 1995 to 1997, Mr. Gonzales advised the Governor on pending clemency petitions in death penalty cases. While Governor Bush exercised ultimate authority to grant or deny a clemency petition, his decision in each case was based on the information he received from Mr. Gonzales. It was Mr. Gonzales’ legal responsibility to present the Governor with a full and balanced summary of each case, including any and all significant mitigating factors.

To date, the only known physical records that document the information that Mr. Gonzales provided to Mr. Bush regarding clemency petitions are brief memoranda, ranging from one-and-a-half to seven pages in length. Most of these memoranda were dated either the day before or the day of a scheduled execution.

The clemency memoranda are, in many cases, extremely troubling. A number of them omit evidence that was presented in clemency petitions such as outstanding claims of innocence, allegations that a jury had failed to consider material evidence, signs of mental impairment, and personal mitigating factors such as severe childhood abuse. For example, in the case of Carl Johnson, the clemency memorandum prepared by Mr. Gonzales does not even refer to the fact that Mr. Johnson had claimed he received ineffective assistance of counsel because his lawyer slept through portions of his trial. In the case of Terry Washington, a mentally retarded 33-year-old, Mr. Gonzales barely mentioned that Mr. Washington’s limited mental capacity (and the failure of his counsel to raise it during trial) formed the central basis of his thirty-page clemency petition. Instead, Mr. Gonzales referred the issue of Mr. Washington’s mental capacity only as a piece of “conflicting information” about Mr. Washington’s background.

Mr. Gonzales has claimed, during questioning before the Committee, that the memoranda were only “summaries” of the death penalty cases he handled for Governor Bush, and that they were typically provided at the end of a “rolling series of discussions” about each case. Yet to date, Mr. Gonzales has produced no tangible evidence of such discussions or any other communications with the Governor about any death penalty case, leaving serious and verytroubling questions remaining about whether, under Mr. Gonzales’ tenure, justice was properly administered in every case.

Mr. Gonzales’ responses to questions about how he would handle death penalty cases as Attorney General, if confirmed, also cause significant concern. When asked about a recent Justice Department report that revealed striking racial and ethnic disparities in the imposition of the federal death penalty, Mr. Gonzales expressed only a “vague knowledge” of the problem. While he stated a willingness to examine the application of the death penalty if he were convinced that such disparities existed, he did not commit to address already-documented concerns at the federal level. In addition, while Mr. Gonzales was unfamiliar with Attorney General Ashcroft’s policy of overriding decisions by federal prosecutors to not seek the death penalty, which in itself is not indicative of a problem, he failed to commit to formally review the practice, including its potential for racial disparities.

In sum, as evidenced by both his past record and his answers to questions about what he would do if confirmed as Attorney General, Mr. Gonzales has clearly failed to assure the Senate and ultimately the American people that he will administer death penalty cases fairly and in accordance with the law.

Mr. Gonzales has Failed to Fully Answer Important Questions About Civil Rights and Liberties
In his confirmation hearing, Mr. Gonzales testified that civil rights enforcement would be among his top priorities. Yet while some of his responses to questions reflect some level of consultation with the Justice Department (see response #5 to Senator Biden, p. 2; response # 3 to Senator Durbin, p. 20), we are very troubled that his responses to questions on many extremely important civil rights issues were vague and were neither well-informed nor well-developed. For example:

  • In response to questions about Title VI of the Civil Rights Act, which prohibits racial and gender discrimination in federally funded programs and activities, Mr. Gonzales failed to commit to the enforcement of the Title VI regulations, as distinguished from the Title VI statute itself. This is troubling given the longstanding recognition that the regulations have a scope and application that extend beyond the limits of the statute itself. Because the Supreme Court in Sandoval prohibited individuals from bringing private actions to en