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Burden of Proof

Interior Secretary Nominee Gale Norton Up for Full U.S. Senate Vote

Aired January 29, 2001 - 12:35 p.m. ET


GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF, Interior Secretary nominee Gale Norton is up for a vote before the entire U.S. Senate. What's ahead? Clear sailing or rough waves?


SEN. CHARLES SCHUMER (D), NEW YORK: Although Ms. Norton is clearly an honorable and capable person, I believe she doesn't have a balanced enough viewpoint on the question of conservation versus development to serve as secretary of the interior, and I must regretfully vote no.

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: I believe she does care. And I must say I think some of the things said about her are simply not correct.


ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.

This afternoon on Capitol Hill, the full Senate will begin debate on another contentious nomination for the Bush administration. Gale Norton, a one-time attorney general in Colorado, has been nominated to become the next interior secretary. Critics oppose her nomination because of her conservative record and her ties to several conservative groups. One of those groups to which see belonged sued the very department she now stands to oversee.

Joining us today from Capitol Hill is Republican Sen. Frank Murkowski, chairman of the Energy and Natural Resources Committee. From Denver, we're joined by Tim Tymkovich, a former Colorado solicitor general who worked under Gale Norton. Here in Washington, reporter Joe Hebert of the Associated Press. And here in our bureau, Melissa Threadgill (ph), Greg Wetstone of the Natural Resources Defense Council, and Doug Kendall of the Community Rights Council. And in our back row, Chris Kenny (ph) and Brett Schanker.

Let me go first to you, Joe. Tell me what should we expect this afternoon for Gale Norton? JOE HEBERT, THE ASSOCIATED PRESS: Well, this afternoon you're going to hear the debate. The Republicans and Democrats are going to debate on the Senate floor. You won't have a vote until tomorrow. And by all accounts, she is going to be nominated and probably get all the Republican votes and a very large number of Democratic votes. Her nomination -- she cleared the Senate Energy Committee last week and the vote was 18-2. Only two Democrats voted against her.

So you're going to hear considerable rhetoric on the floor today. Democrats will probably raise some reservations about her, but then in the end will say she's no James Watt and probably will get their vote.

VAN SUSTEREN: Joe, who is her sharpest critic expected to be on the Senate floor?

HEBERT: Well, Senator -- I think Sen. Schumer, of course, from New York voted against her. I think you're going to hear some criticism there. And I think there'll be a lot of Democrats who will raise some concerns about her and her record as to her views on property rights and as to her views on whether or not she will enforce the Endangered Species Act. But I think, in the end, this is not -- although there are expected to be a lot of fireworks on her nomination, I think you're going to find out that there will not be that much extremely sharp criticism.

VAN SUSTEREN: Sen. Murkowski, you're the chairman of the committee that started the -- at least had the hearings on this nominee. What is this nominee's greatest strength, in your view, to be the interior secretary?

SEN. FRANK MURKOWSKI (R-AK), NATURAL RESOURCES CHAIRMAN: Well, a couple of things. I think one is the confidence that her fellow attorney generals all over the country have expressed in their support. Some 22 have written saying they've worked with her on various case and they feel that she's professionally qualified. Another thing is her ability to respond to the extensive questioning we had as the Committee on Energy and Natural Resources met to hear her. And we had two days of hearings and she handled the tough questions. Then they followed up with 224 written questions, which she responded to over a weekend.

And, you know, I think she's come out of that committee with a mandate, 18-2. That committee's made up of 10 Republicans and 10 Democrats. And I think the environmental community kind of overreached on this when they got downright nasty. And I think they've cut into their credibility.

VAN SUSTEREN: All right, let me hone in on one particular issue that I assume is extraordinarily interesting, especially from a senator from Alaska -- which has so many beautiful -- is such a gorgeous state. What about the Arctic National Wildlife Refuge and the issue of opening it for oil and gas exploration, which is something our new president wants to do and she supports.

MURKOWSKI: Well, of course that will be opened only if Congress supports it. The president can't open it, Gale Norton can't open it. Her job is to provide the administration and the Congress with the facts surrounding it; whether it can be opened in combination of the environment and the ecology -- can we do it safely? Do we have the technical capability?

Remember, Greta, that's a huge area -- it's 19 million acres, the size of the state of South Carolina. We've already put 9 million acres into a refuge, 8 1/2 million acres into a wilderness in perpetuity, leaving out 1 1/2 million acres for Congress to make the determination of whether we can do it safely/

Now, the industry says that the footprint out of that 1 1/2 million acres would be 2,000 acres if the oil is there; so we've got a long way to get. But the fact that the administration supports it, our new president supports it -- and obviously it's an obligation of the secretary of the interior, and Gale Norton supports it as well.

And we have the technology to do it safely. There's no scientific evidence to show that we can't open it.

VAN SUSTEREN: Greg, what about the Arctic National Wildlife Refuge and the drilling issue and the exploration issue?

GREG WETSTONE, NATURAL RESOURCES DEFENSE COUNCIL: Yes, I mean, obviously we think that that is the wrong thing to do, that it's a big mistake to look to irrevocably endanger some of the last pristine places -- and this really is. It's the breeding ground for caribou and musk ox and polar bears; and it's a unique and very special place and we attach a very high priority to protecting it, as most Americans do.

But that's not what this battle is about.

VAN SUSTEREN: Let me -- before we ask what the battle is about -- because I'm -- obviously I'm interested in this. It's a beautiful, beautiful place. I mean, as much as people disagree with the environmentalists, isn't it sort of the prerogative of the president to choose someone that supports his positions? Or maybe that's why you say that this isn't the battle.

WETSTONE: That's exactly why; and we are not surprised that he picked someone that agrees with him on the Arctic, although we think it's a huge mistake. And, as the senator said, we'll have that debate in the House and the Senate, and we think we'll win that debate.

VAN SUSTEREN: All right, what's the battleground then. I obviously missed the point -- that was just something that interested me.

WETSTONE: Well, it is of huge interest and it's something we're extremely concerned about; and we're going to be fighting very hard over the next several months to make sure we protect that last pristine area.

But what this is about, really, is a commitment to the mission of the Department of Interior. And the environmental community did not -- we weren't thrilled with the prospect of having to oppose her. In fact, we supported Christine Todd Whitman's position -- her nomination as head of EPA. We would much rather be in a position where we're saying, look, you know, we have some differences but we want to work with you and we think we can.

But what we see with Gale Norton is a very long record; I mean, a career of working to undermined the mission of the agency she's nominated to head.

VAN SUSTEREN: But, see, that's where I have the problem. It isn't necessarily whether I agree or disagree with her, but to say that she -- and we see this in the Ashcroft nomination as well -- when someone says, I will follow the law and I -- and my policy tracks the policy of the president of the United States. Is that a reason to disqualify someone?

WETSTONE: I think there has to be a point at which the record and commitment of a nominee is so at odds with the role of the agency that, yes, it is and it should be. And that's really what this is about.

She's gone to the Supreme Court to argue that the Endangered Species Act is unconstitutional, one of the most important laws she'll be charged with implementing -- the surface mining law -- she has argued in writing that polluters and developers should have to be compensated for the cost of complying with environmental laws.

And it's not just that we disagree with those things, but more that she has been an advocate for this point of view for her entire life and we appreciate that she stated -- she was much more restrained in her testimony, I think a lot of senators were grappling with the difference between her careers and advocacy and point of view, many of which were in writing, and the sort of day-and-a-half of much more restrained approach.

VAN SUSTEREN: Let me ask someone who worked with her.

Tim, you worked with her when she was the attorney general of the state of Colorado. Greg just mentioned that she fought the Endangered Species Act -- in wanting to have it -- she believed it's unconstitutional. What is your response to that?

TIM TYMKOVICH, FORMER COLORADO SOLICITOR GENERAL: Well, first of all, Gale Norton will bring qualified and unparalleled balance, knowledge and experience to the job as secretary of the interior.

With respect to the Endangered Species Act and some of the other criticisms of her record, the problem with the critics is that their criticism is just untrue. She did not argue to the Supreme Court that the Endangered Species Act was unconstitutional. To the contrary, she advocated a balance and nuance application of the act.

In fact, in Colorado she applied the Endangered Species Act to species recovered here in Colorado; and when she was a lawyer at the Department of Interior 10 years ago she helped save the California condor from extinction. I think that's a great record. VAN SUSTEREN: And Doug, let me just add one other thing. I saw some criticism of her -- that she was pro-tobacco. And, as I've announced on this show many times, my husband was the one that fought the tobacco industry, and he was surprised to see that, because she was pounding the pavement trying to help the -- you know, the anti- tobacco -- to get that resolved. Do you think that she's getting unfairly -- the facts are being stated incorrectly about her?

DOUG KENDALL, COMMUNITY RIGHTS COUNCIL: I'm not sure where the pro-tobacco position came from. My understanding is that she was brought in late to the tobacco suit, but when she did prosecute...

VAN SUSTEREN: My point only being, is that -- is my husband says she was pounding the pavement against tobacco, and the newspapers -- there was at least one paper that said just the opposite.

KENDALL: I don't think we need to debate her views on tobacco or other subjects that are extraneous to the mission of the Department of Interior. There's plenty in her record as attorney general that affects her...

VAN SUSTEREN: Point out what you think disqualifies her; what's this -- if you have a single disqualifier, why would you say she's not -- she should be..

KENDALL: Well, Mr. Tymkovich, I think, just gets it wrong in terms of her brief in the Sweethome (ph) versus Babbitt (ph) case. My understanding -- and I've read her record thoroughly and read her briefs thoroughly -- is that she believes the Endangered Species Act is unconstitutional or illegal for at least three reasons.

As it applies to private land -- protection of species on private land -- she thinks, first of all, that the federal government doesn't have power under the commerce clause to regulate that private land. She thinks, second, that if they do regulate it, it's a taking of private property. And, third, she argued in the Sweethome case that the government doesn't have authority under the Endangered Species Act to regulate it.

So it's that views -- it's views that the laws that are within her control as interior secretary are unconstitutional...

VAN SUSTEREN: And that's something I want -- we need to take a break -- something I want to talk about. But it's always sort of interesting that we disqualify someone for taking an advocacy position; and hopefully the courts sort it out as to what is or is not.

But we're going to take a quick break and talk about this when we come back.


Q: How many people were arrested at Raymond James Stadium yesterday during Super Bowl XXXV?

A: About 75 people. Most were arrested for allegedly scalping tickets or trying to get into the game with counterfeit tickets.



VAN SUSTEREN: President Bush has nominated Gale Norton as the next secretary of the Interior Department. Critics have opposed the nomination of the former Colorado attorney general because of her conservative track record.

Joe, let me go back to you. In terms of the hearings before Senator Murkowski's committee, what did most of the critics sort of seize upon as, perhaps her weakest moment?

HEBERT: The -- a number of the Democrats during the hearings did express some concern about her record in terms of property rights and whether or not she would, in fact, enforce environmental laws such as the Endangered Species Act. And also, since she has had past conflicts with federal agencies, including the EPA over enforcement or how to enforce clean air restrictions -- some of the criticism was based on that, on whether or not she would be able -- would enforce the laws that she's obligated to enforce in her federal position.

I got the impression that, at least in terms of the final vote and also the comments made by committee members at the time of the votes, that her presentation swayed a number of them. She said she was a conservative, but she also said she's a passionate conservationist, and she didn't think those two conflicted. And she said she would enforce those laws and she stepped back a little bit from the harsh rhetoric, also -- giving herself some distance from James Watt, the Reagan administration interior secretary, where she said at one point she would be her own person.

VAN SUSTEREN: And just as a, sort of, an aside, I mean, I did a little background -- in her testimony she said she was a protege, at least it's been of reported, of James Watt; but she said in the last 10 years she'd only spoken to him once. So they don't seem like they're particularly close to each other.

HEBERT: Well, I think she tried to portray herself as being much more easily willing to compromise, willing to deal with people, perhaps, not as antagonistic as Mr. Watt was. And I don't see, for instance, Gale Norton banning the Beach Boys from the Mall on the Fourth of July.

VAN SUSTEREN: I hope not.

Greg, let me ask you: What's the standard? I mean, what standard should the American people and the Senate be looking at in terms of judging this woman?

WETSTONE: I think that's the heart of the question, in my view, and I think most Americans would share this: The individual who heads the Department of Interior should at least believe in the agency's mission, which is protecting the pubic lands that all the taxpayers' own for their future use. VAN SUSTEREN: Is there any evidence she hasn't done this?

WETSTONE: Yes; her career, and we could cite numerous examples, has been, in every instance, to promote efforts to log and mine and drill the public lands and use them in ways that are incompatible with long-term stewardship. She...

VAN SUSTEREN: And what about that, Senator Murkowski? Do you agree or disagree with Greg?

MURKOWSKI: I totally disagree. What she's attempting to do is balance reality. You know, you go out to California now and you find out that what's happened out there is they thought they could generate the power from outside California -- suddenly found that it wouldn't work. That same situation is going to affect this country as we find ourselves 56 percent dependent on imported oil.

And, you know, the reality that -- do we want to continue to get it from Saddam Hussein and Saudi Arabia or do we want to develop sources here at home? How much to you allow, from the standpoint of your national security interests, dependence on other countries? California found out.

VAN SUSTEREN: Doug, is it a question of a disagreement on policy from you viewpoint, or is she unqualified? Those are very different issues.

KENDALL: My view is that she's unqualified because her views on policy are so extreme -- and these are extreme not just based on mainstream legal thinking, but on conservative mainstream legal thinking. Her views are outside the pale even of people like Robert Bork, people like Charles Freed (ph) on the Kagans (ph) clause, for example.

She has adopted the views of a professor named Richard Epstein, who says any government regulation that reduces property value at all is a taking.

VAN SUSTEREN: Let me ask -- Tim, you worked with her. Was there any instance when she upheld or enforced the law when, fundamentally, she disagreed with it, in your experience?

TYMKOVICH: Gale, typically in her career as attorney general, applied and enforced the laws on the book. And her record is unparalleled in that respect. It's very clear that she had no problem in enforcing vigorously the environmental laws her in Colorado -- the Clean Air Act, CIRCLA (ph), the Super Fund laws and the various statutes that apply to the state and private interest here.

I think her critics failed to watch her testimony at the hearings two weeks ago; and they would have had a lot of these questions answered about her views of property rights and how they can be reconciled with her mission, and be a good steward for the public land.

VAN SUSTEREN: Go ahead. WETSTONE: Yes, I guess I disagree that that's what the record shows. I don't disagree that she did a nice job at the hearing in refusing these issues.

But what the record shows is really quite different than that. There are numerous examples where she did not aggressively or even make a reasonable effort to follow and enforce the pollution laws including, for example, a smelter and a sarcosmelter (ph) in downtown Denver where there was a settlement that many of the citizens objected to. She did not go after that case, did not promote it, and actually intervened in opposition to the citizens...

VAN SUSTEREN: I hate to take a break, but we're out of time. It's going to be an interesting debate, though, this afternoon at 2:00; but that's all the time we have for today on our shortened edition.

Thanks to our guests, and thanks for watching. Today on "TALKBACK LIVE": Is there a place for faith in politics? Send your e- mail to Bobbie Battista and tune in at 3:00 p.m. Easter time.

And tonight on "THE POINT," two teens mimic an MTV stunt show; one is hospitalized with second and third-degree burns. Has entertainment programming gotten out of hand? Join me at 8:30 p.m. Eastern tonight.

And we'll be back tomorrow with another edition of BURDEN OF PROOF; we'll see you then.



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