Five Jewish Senators serving on the Senate Judiciary Committee divided along party lines today as Republicans outmuscled Democrats 10-8 in a party line vote to recommend the confirmation  of Alberto Gonzales as the next attorney general of the United States.

One Jewish Republican, Arlen Specter of Pennsylvania, voted in favor of confirmation, while opposition came from four Jewish Democrats—Russ Feingold of Wisconsin, Dianne Feinstein of California, Herb Kohl of Wisconsin and  Charles Schumer of New York.

Three of the dissenting Democrats issued statements explaining their votes. Specter said Republicans would have their say when Gonzales' nomination reaches the Senate floor, possibly next week.

Feingold said that while Gonzales has acknowledged that the Justice Department must be guided by the rule of law,  his "performance as White House Counsel and, particularly, his appearance before this committee and his responses to our questions, have given me grave doubts about whether he meets that test. Judge Gonzales too often has seen  the law as an obstacle to be dodged or cleared away in furtherance of the President's policies."

Feingold explained: "Time after time, Judge Gonzales has been a key participant in developing secret legal  theories to justify policies that, as they have become public, have tarnished our nation's international reputation and made it harder, not easier, for us to prevail in this struggle. He requested and then disseminated  the infamous Office of Legal Counsel ('OLC') memo that for almost two years, until it was revealed and discredited, made it the position of the government of the United States of America that the International Convention Against Torture, and statutes implementing that treaty, prohibit only causing physical pain 'equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily  function, or even death.' Under that standard, the images from Abu Ghraib that revolted the entire world would not be considered torture, nor, according to some, would the shocking interrogation technique called 'waterboarding."

Further, said Feingold, "Judge Gonzales advised the President that he could declare the entire legal regime of the Geneva Conventions inapplicable to the conflict in Afghanistan. Secretary of State (Colin) Powell rightly pointed out the danger of this course, but Judge Gonzales persisted. This theory could actually have given greater legal protection to terrorists, by taking away a key part of the legal regime under which war crimes can be prosecuted. The idea that the Geneva Conventions protect terrorists who commit war crimes, which Judge Gonzales repeated in 
his hearing, is a dramatic misunderstanding of the law, and it was very troubling to hear it from the person who would coordinate our legal strategy in the war on terrorism. 

"Judge Gonzales was also an architect of the Administration's position on the legal status of those it called 'enemy combatants,' a position that was soundly rejected by the Supreme Court of the United States last year," Feingold said.

The Wisconsin Democrat went on to say: "Judge Gonzales's appearance before the committee was deeply disappointing. When given the opportunity under oath to show that he would be adequately committed to the rule of law as our nation's chief law enforcement officer, he failed to do so. He indicated that the infamous OLC torture memo is no longer operative, but that he does not disagree with the conclusions expressed in it. He reiterated erroneous  interpretations of the effect that applying the Geneva Conventions to the war on Afghanistan would have on the 
treatment of members of Al Qaeda captured in combat. Most disturbingly, he refused time after time to repudiate the most far-reaching and significant conclusion of the OLC memo— that the President has the authority as Commander-in-Chief to immunize those acting at his direction from the application of U.S. law. 

"This failure goes directly to the question of his commitment to the rule of law. Under our system of government, the Attorney General of the United States may be called upon to investigate and even prosecute the President. We cannot have a person heading the United States Department of Justice who believes that the President is above the law. I and other members of the committee questioned Judge Gonzales closely about this issue. He hid behind an aversion to hypothetical questions, he conjured up his own hypothetical scenarios of unconstitutional statutes,  but he simply refused to say, without equivocation, that the President is not above the law."

Schumer, in his statement, said from a personal point of view he had enjoyed working in the past with Gonzales in the discussions and negotiations over whom President Bush should appoint to judicial positions in New York.

"Even if you are— as Judge Gonzales is — a good person with top-notch legal qualifications, you still must have the independence necessary to be the nation's chief law enforcement officer," Schumer added.

"Unlike all the other Cabinet positions where your role is to implement and advance the President's policies, as Attorney General — as the nation's chief law enforcement officer. your job is to enforce the law, all the laws, whether they help or hurt the Administration's objectives," Schumer said.

During the committee hearing, Gonzales "was so circumspect in his answers, so unwilling to leave a micron of space between his views and the President's, that I now have real doubts whether he can perform the job of Attorney General. In short, Judge Gonzales still seems to see himself as counsel to the President, not Attorney General, the chief law enforcement officer of the land."

Schumer added: "I was hoping that we'd see an independent Alberto Gonzales. Instead we saw someone who, almost robotically, continues to hew to the Administration line. When push comes to shove, the Attorney General needs to be able to stand up to the White House. Judge Gonzales' answers don't show that kind of independence."

Feinstein said she decided to oppose Gonzales because "I do not believe he has been candid with the Judiciary Committee about his views on torture or its use despite repeated questions about the issue."

Furthermore, she said, "in his answers to the committee, Alberto Gonzales obfuscated more than he clarified. Time and time again, he voiced the President’s policies instead of his own philosophy, and relied on technical interpretations of the law. I wanted him to show something of his own personal values and judgment, but he did not. He essentially has been a legal enabler to the President and to the same man when he was Governor of Texas in clemency hearings on executions. There is little known about his views on many subjects – immigration, civil rights, and other areas of concern to the Department of Justice. 

"Instead of taking the hearing as an opportunity to start an open and honest dialogue, he tried to stonewall. Instead of condemning brutal interrogation techniques, like forced nudity and simulated drownings, he wrote to me that he 'was not in a position to judge' whether they are 'appropriate.'" Feinstein said. "I believe confirming this nomination would send the wrong message to the world." 


        —Donald H. Harrison