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For Immediate Release
November 10, 2011

Judiciary Committee Executive Business Meeting Statement

Operation Fast and Furious, Justice Department Conference Expenditures, and Repeal of the Defense of Marriage Act

Prepared Opening Statement of Ranking Member Chuck Grassley
Senate Committee on the Judiciary Committee
Executive Business Meeting
Thursday, November 10, 2011

With regard to the judicial nominations, we are prepared to vote on the following nominations today:  Morgan, District Judge for Eastern Louisiana and Horowitz, DOJ Inspector General

On Mr. Horowitz, yesterday I sent him some additional questions.

I received responses to my questions late last night.  While I am still reviewing those responses, I don’t think they fully answer my questions. And I’ll have more follow up questions.  However, I don’t want to hold Mr. Horowitz up in this committee merely because of those questions.  So I am prepared to vote on his nomination here today, but I want to make sure I am satisfied with his responses before his nomination is considered on the floor.
 
Next, on the legislation, we are prepared to debate S. 598, which seeks to repeal the bipartisan Defense of Marriage Act.  And I’ll have a statement when we take up that bill.  We request that the other five bills, which are all on the agenda for the first time, be held over.

Operation Fast and Furious
Before we turn to the agenda, I’d like to say a few words about our oversight hearing this week.  On Tuesday, Attorney General Holder testified before the committee for the second time this year on Operation Fast and Furious.

Just before his appearance on May 4th of this year, the department was still denying that ATF engaged in gunwalking.

However, in that May 4th appearance, the Attorney General shifted slightly from the official denial that gunwalking had occurred to a wait-and-see position.  He said, “I frankly don’t know.  That’s what the investigation, I think will tell us.”

We have come a long way since May.

While the Inspector General investigation is still ongoing, the Attorney General is no longer waiting to draw basic conclusions about the facts.

On Tuesday, the Attorney General finally admitted that the whistleblowers were right all-along, about gunwalking in Fast and Furious.

While I am pleased that the Attorney General is no longer trying to deny the obvious, he did not fully own-up to his responsibility.

Last week, the head of the Justice Department’s Criminal Division, Lanny Breuer, admitted that he knew about ATF walking guns since April 2010.  Mr. Breuer said he regretted not telling the Attorney General about it earlier.

He admitted that he knew, the Justice Department’s blanket assertion that ATF does not walk guns, was false.  He had to admit it, because documents proved that he had been briefed about guns walking, in an earlier operation called Wide Receiver.  It also appears from those documents that Mr. Breuer’s deputy, Jason Weinstein, knew about ATF walking guns in both operations.

Anyone who knew about gunwalking in any case, also knew that the department’s initial letter to me was false.

The Attorney General said the letter was based on the best information available at the time.  But, senior officials at headquarters, like Breuer and Weinstein, knew better.  The Justice Department even sent Mr. Weinstein to brief committee staff on February 10, but he failed to disclose what he knew about ATF walking guns.

Even after Mr. Breuer and Attorney General Holder’s recent admissions, it is unclear how Fast and Furious was allowed to proceed, given what was known about guns walking in Wide Receiver.

We have requested 12 Justice Department witnesses be made available for transcribed interviews.  Despite the department’s promises of good faith cooperation, only one witness has been provided so far -- former U.S. Attorney Dennis Burke.  The department has refused to schedule interviews with any of the other 11 witnesses.  That’s not the good faith cooperation I was promised, and it is unacceptable.

If this controversy has taught us anything, it is that you have to talk directly to the people who know the facts.

If Congress had relied on the department’s official talking points, we still wouldn’t know the truth today.

Conference Expenditures
Also at the oversight hearing, there was a discussion about the revised report issued by the Inspector General regarding conference expenditures at the Justice Department.  

The revised report simply added the cost of fruit, coffee, tea, and juice to the cost of the $16 muffin under the revised heading, “modified continental breakfast”.  What a great deal.  

So, yes the $16 muffin is gone, in exchange for a $16 continental breakfast.  However, the revision does not correct the $47 lunches, the $52 dinners, the $32 cracker-jack snacks, and the $600,000 paid to professional conference planners, that were also identified by the report.  

Also lost among the $16 muffin rhetoric is the fact that in the last two years, conference spending at the Justice Department has doubled from $47 million in FY08, to $91 million in FY10.  

The relevant point is that conference expenditures have doubled.

In fact, the Inspector General stated, “we hope that our correction of the record for this one conference, among the 10 conferences we reviewed, does not detract from the more significant conclusion of our report: government conference expenditures must be managed carefully, and the department can do more to ensure that taxpayer dollars are spent wisely and accounted for properly.”  

It would have been refreshing to hear a clear explanation from the Attorney General as to why conference expenditures have doubled in two years.  And I’ll continue to press for that explanation, until conference spending is under control.

The Restoration of Marriage Act
Mr. Chairman, the majority sets the committee’s agenda, and it has put this bill to repeal the Defense of Marriage Act on the agenda.  I think that is unwise.  

We should be spending our time now on bills that can pass, and bills that can help solve some of the serious employment, budget, and financial problems that are facing the country.  The Restoration of Marriage Act, by the sponsor’s own admission, lacks the votes to pass the Senate.  Even if it somehow managed to pass the Senate, it would not even be taken up in the House.  

In light of the majority’s determination to go ahead with marking up this bill, I will be making an opening statement.  

When others are done with their statements, I will have some questions to pose to the bill’s sponsor, the senator from California.  Even if there is no serious chance that this bill will pass, the subject of how society defines marriage is very serious.  It deserves to be addressed at length.

For thousands of years, across all cultures and nations, marriage was exclusively a heterosexual institution.  Obvious biological realities were a major reason why.  Another reason was the universal religious view that marriage was about procreation and child-bearing.  
Marriage as an institution for one man and one woman is about morality for many millions of Americans.  Traditional marriage was the law in all of our states until very recently, and it is still the law in the vast majority of them.  I have always supported a definition of marriage as being between one man and one woman.

To me, this debate is about stable families, good environments for raising children, and religious belief.  It is not about discriminating against anyone.  No society has limited marriage to heterosexual couples because of a desire to create second-class families.  

This differs from treatment of interracial marriages.  Traditional marriage in many states until the 1960’s was limited racially for reasons that had nothing to do with the creation of marriage as an institution and everything to do with racial discrimination.  Loving v. Virginia, which has been referenced a number of times, has nothing to do with gay marriage.   

If you wish to see that the bill today is not a civil rights bill, just consider a recent column from the New York Times.  

Frank Bruni’s column had the following to say:
“. . .[I]t’s .. important to recognize that people lobbying for gay rights have at times given African-Americans pause by appropriating ‘civil rights’ language and arguments in too broad a manner.

“Wade Henderson, the president of the Leadership Conference on Civil and Human Rights, noted the existence of phrases like ‘gay is the new black’ and said that attempts to equate the persecution of gay and black Americans can be ‘deeply offensive.’

“African-Americans were enslaved.  And during their brutal struggle for justice, they couldn’t make a secret of what set them apart from others, Henderson said during a phone interview….

“When gay men and lesbians glide over such details, he said, it feels ‘inherently disrespectful to the black experience in this country.’”

I listened to the statements of my colleagues last week on this bill and found myself in total disagreement.  This Orwellian bill does not restore anything.  Restoring marriage would mean restoring marriage as it has existed for thousands of years.  The rights that the bill would create for same-sex couples are not a restoration of any rights.  They are new rights that same-sex couples have never had under federal law.  
    
Nor would the bill supposedly restore the right of states to define marriage as they choose without federal interference.  Just the opposite.  Under DOMA, states can define marriage however they want.  They can decide for themselves whether they will recognize same-sex marriages from other states.  Under this bill, by contrast, states that recognize only traditional marriages will be required to honor same-sex marriages for purposes of federal law.  Moreover, the repeal of section 2 of DOMA may well constitute federal denial of states’ ability not to recognize out of state same-sex marriages, even for their own citizens.
    
It’s simply wrong to claim that the bill would create federal benefits for all lawfully married couples.  In reality, it would create federal benefits for many same-sex couples who are not lawfully married.  The bill provides that for purposes of federal law, “an individual shall be considered married if the individual’s marriage was valid in the place where entered into…”  Even if the marriage is unlawful in the state where the couple resides, if the couple marries in a state where same-sex marriage is legal, the federal government would recognize the marriage.  
    
In 1996, DOMA passed with overwhelming support, including many of my colleagues on the other side of the aisle.  They can of course change their votes now.  But DOMA also passed with the Justice Department stating that the bill was constitutional.  Yet now, the Justice Department, despite obtaining court rulings sustaining DOMA’s constitutionality, refused to make any reasonable argument for DOMA’s constitutionality, arguing that the law is unconstitutional.  DOMA is the same as it has always been.  The Constitution means what it has always meant.  

The 14th Amendment would never have been ratified if the public had understood it to provide for same-sex marriage.  But the Justice Department has changed its position.  So if the law is the same and the Constitution is the same, why is the department’s position different?  Certainly not because the department is adhering to the rule of law and not injecting politics into its litigation positions.

This point relates to a statement that the Chairman made last week.  He said that in Vermont, there was no significant public reaction when the legislature voted to enact same-sex marriage.  

Well, in Iowa there was major controversy when the Iowa Supreme Court essentially made up a constitutional right to same-sex marriage.  The state constitution had always been understood to create no such right.  Unlike Vermont or New York, for instance, where the legislature enacted same-sex marriage, in Iowa, the Supreme Court forced this on the people without any public input.

Well, then what happened?  The people rose up and voted out of office all of the Justices who were up for retention and who voted to create same-sex marriage.    

Judges are given independence so that they will enforce the Constitution – not their own personal views.  In Iowa, the judges ignored the Constitution and applied their own views.  And Iowans reminded them that this is an inappropriate judicial role.  Normally, Iowans have to suffer silently when judges issue decisions that run contrary both to the meaning of the Constitution and to their deeply held values.  This was an opportunity for the people to exercise their right to govern themselves when the Constitution as properly understood did not eliminate their right to do so.  

Iowans, like the voters of every other state who have been given the chance to weigh in on this important issue, have defined marriage to be between one man and one woman.

At this time, Mr. Chairman, I would like to introduce into the record letters in opposition to S.598 from the United States Conference of Catholic Bishops Subcommittee for the Promotion and Defense of Marriage, Concerned Women for America, Agudath Israel of America, and John J. Park, Jr.

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