Bench Memos

Law & the Courts

The Gupta Nomination’s Bad Day in the Judiciary Committee

Vanita Gupta testifies before the Senate Judiciary Committee during her confirmation hearing on Capitol Hill in Washington, D.C., March 9, 2021. (Joshua Roberts/Reuters)

Yesterday the Senate Judiciary Committee held its business meeting to consider Vanita Gupta’s nomination for associate attorney general. Republican members, on the heels of demanding a second hearing, used the occasion to articulate several reasons this nominee is particularly offensive.

The ranking member, Senator Chuck Grassley, noted her hypocrisy and evasiveness: When any of the many Trump nominees she opposed said “anything controversial, Ms. Gupta was there to say it was disqualifying. But when Ms. Gupta herself said something controversial, we’re told it needed to be seen in context. Or if context is unavailable, that it’s worthy of forgiveness. She has not accepted invitations to forgive Trump’s judicial nominees.” The double standard even applied to Trump judicial nominees she condemned for not answering questions about the correctness of Supreme Court precedents while she herself gave “almost identical” responses to similar questions posed by senators in writing after her hearing. Even more concerning, Grassley asserted that Gupta’s answers were “too inconsistent or evasive” and justified bringing her back to “set the record straight on issues like defunding the police, qualified immunity, drug legalization, and capital punishment.” In short, he said, “I don’t think running civil enforcement for the United States is the right place for a partisan progressive activist.”

The drug issue is one of the most serious arising from this nomination, and Senator John Cornyn explained why. Gupta owns between $11 and $55 million in stock in Avantor, one of a handful of companies in Mexico that produce acetic anhydride, a compound used to manufacture heroin. Mexican authorities have found in drug labs jugs of acetic anhydride manufactured by Avantor through its wholly owned subsidiary, and Cornyn added that the compound “is so dangerous that many countries simply ban the product entirely.” A single jug, he noted, “sells for $324. It’s capable of producing 90,000 hits of heroin, with a street value of $3.6 million.”

Heroin has taken over 100,000 lives in the United States over the past ten years, and Gupta’s problems go beyond her Avantor holdings. In response to written questions, as in her hearing, she was evasive and even flatly contradicted her 2012 statement, “States should decriminalize simple possession of all drugs,” by stating she “never advocated for the decriminalization of all drugs.” Cornyn told his colleagues that “in the case of legalization of drugs, including drugs like heroin, she has frankly lied to each of you and the whole committee.” Similar concerns regarding Gupta were voiced by Senators Marsha Blackburn and Josh Hawley, whose respective home states of Tennessee and Missouri have seen a spike in overdose death rates in recent years.

Senator Mike Lee noted Gupta’s apparent “contempt for the views of people with whom she disagrees” in a succession of vitriolic comments she had made for which she now “asked for forgiveness.” “From what I can sense, she’s not inclined to provide grace or a second chance to things that other people—people with whom she disagrees—have written in college,” a reference to Ninth Circuit Trump nominee Ryan Bounds, “and yet she comes before this committee requesting of us grace and a second chance for intemperate comments . . . from only a few years ago or in some cases only a few months ago.” She has called judicial nominees “unfit” for office for advancing pro-life views and left Lee particularly worried about the influence of “outside activist groups” on policy. The senator was “concerned that she’ll do all that she can to wield the Department of Justice against those who may hold different positions than she holds. And I’m concerned that she’ll do so aggressively, that she’ll conduct as many expensive, hostile pattern and practice investigations against state and local law enforcement as she feasibly can, regardless of whether those might be warranted.” Similarly, he “worried that she’ll use the third-party settlement agreements to reward the activist groups for which she’s lobbied at the expense of businesses and citizens and organizations that she doesn’t agree with.” Senator Lee nailed it; this nomination is all about paying back the left-wing dark money groups that elected Joe Biden.

Senator Ted Cruz broke down in detail how Gupta misled the committee as to her views on qualified immunity, drug decriminalization, defunding the police, and the death penalty. Even the Washington Post called her out, pointing out among other things that a statement she gave to the committee last year is “exactly what ‘defunding the police’ is all about.” Cruz thundered, “Every member of this committee should be on notice: You vote for this nominee, you are voting for shifting billions of dollars away from policing. That will hurt communities of color. That will hurt low-income communities.”

Senator Tom Cotton was just as blunt, calling Gupta’s “wild, unhinged, intemperate” past statements “not just hyperpartisan, but also laughable and offensive.” When she is called out on them, “she has a history of forgetting what she said, even when it’s presented directly to her on poster boards.” He reviewed some of her critical race theory–fueled statements and attacks on the “character and integrity” of judicial nominees and senators, but did not get to finish his remarks.

The chairman of the Judiciary Committee, Senator Richard Durbin, interrupted Cotton and, over the Republican senators’ objections, proceeded to a vote on the nomination. Taking such a vote without first voting to do so in the face of objections violated the committee’s Rule IV. With the committee split 50–50 between Democrats and Republicans, Gupta’s nomination was not reported to the Senate, but Durbin and the rest of the Democratic leadership of the Senate are expected to maneuver to discharge the nomination from the committee for a vote of the full Senate anyway. There the question will be whether a single Democrat will acknowledge that this nominee offends principles that should cross party lines.


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