[Congressional Record Volume 142, Number 119 (Wednesday, September 4, 1996)]
[Senate]
[Pages S9848-S9851]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  NOMINATION OF CONGRESSMAN PETE PETERSON TO BE AMBASSADOR TO VIETNAM

  Mr. THOMAS. Mr. President, I come to the floor today as the chairman 
of the Subcommittee on East Asia and Pacific Affairs of the Foreign 
Relations Committee to outline for my colleagues a decision that I and 
the distinguished full committee chairman Mr. Helms have made to 
postpone the nomination hearing of Congressman Douglas ``Pete'' 
Peterson to be Ambassador to the Socialist Republic of Vietnam (SRV).
  At the outset let me say, as I did to Congressman Peterson yesterday, 
that the reason for the postponement--and I will address this in 
greater detail in a moment--is the White House's failure to meet the 
constitutional requirements for the nomination; it has nothing to do 
with Pete Peterson as a nominee. If the White House had avoided this 
oversight, we could have moved ahead with this nomination--a nomination 
I believe most of the committee would support--without all the fits and 
starts and delays.
  The President nominated Congressman Peterson for the position of 
Ambassador to the SRV on May 23, 1996. His file was received by the 
full committee in June and was finally complete and ready for 
consideration by the committee on June 25. The full committee scheduled 
a confirmation hearing on the Peterson nomination and three others for 
July 23, which I was to chair in my capacity as chairman of the 
subcommittee of jurisdiction. However, because of a series of conflicts 
with the Senate schedule, the hearing had to be postponed twice; first 
to July 29 and then to September 5, after the August recess.
  But at the same time this series of postponements was taking place, 
the distinguished Senator from North Carolina [Mr. Helms] and I were 
growing concerned over a legal issue which had come to our attention 
regarding to the nomination. On July 17, our legal staffs informed us 
that a provision of the Constitution might preclude Congressman 
Peterson from serving as Ambassador. We contacted the White House, and 
asked for a detailed clarification of the issue from them. At the same 
time, we asked the Office of Senate Legal Counsel [SLC] to provide us 
with their opinion. Mr. Jack Quinn, Counsel to the President, provided 
us with a letter outlining the administration position on July 22; 
their legal opinion from the Office of Legal Counsel [OLC] at the 
Department of Justice followed after the close of business on July 26. 
The SLC opinion was delivered to us the same day.
  After carefully reviewing the opinions of the OLC and the SLC over 
the August recess, and the legal authorities cited in them, we have 
concluded that the constitutional issue requires us to postpone 
Congressman Peterson's nomination hearing until January next year in 
order to meet the requirements of the Constitution.
  Mr. President, article I, section 6, clause 2 of the U.S. 
Constitution provides in part:

  No Senator or Representative shall, during the Time for which he was 
elected, be appointed to any civil Office under the Authority of the 
United States, which shall have been created, or the Emoluments whereof 
shall have been increased during such time. . . .

  In other words, this provision of the Constitution--called the 
ineligibility clause--prohibits a Member of Congress from being 
appointed to a civil position in the Government which was created, or 
for which there was a salary increase, during that Member's term of 
office.
  The first time the ineligibility clause arose as an issue was during 
the Presidency of George Washington; the second was during the 
administration of President Arthur. In both cases, the President's 
interpreted the provision literally and it was concluded that the 
Constitution prohibited even the nomination of a Member of Congress to 
an office created during his term--thus equating nomination with 
appointment. As President Arthur's Attorney General stated:

       It is unnecessary to consider the question of the policy 
     which occasioned this constitutional prohibition. I must be 
     controlled exclusively by the positive terms of the 
     provision of the Constitution. The language is precise and 
     clear, and, in my opinion, disables him from receiving the 
     appointment. The rule is absolute, as expressed in the 
     terms of the Constitution, and behind that I can not go, 
     but must accept it as it is presented regarding its 
     application in this case.

  Under a literal reading, then, Congressman Peterson cannot be even 
considered for the nomination until after January 3, 1997--the 
expiration of his present term. It would seem to me that if President 
Washington found a nomination similar to Congressman Peterson's void 
from the outset because of the ineligibility clause, that reasoning 
should be good enough for the Clinton administration.
  Even if we assume for the sake of argument that a literal 
construction of the clause is not warranted here--and that we have to 
determine exactly which act or series of acts constitutes an 
appointment under the clause--an examination of the facts in 
Congressman Peterson's case yields the same conclusion. It has been 
argued that some precedent exists to support the conclusion that 
appointment requires both the acts of nomination and of confirmation by 
the Senate. For example, in Marbury versus Madison, Chief Justice 
Marshall wrote:

       These . . . clauses of the Constitution and laws of the 
     United States which affect this part of the case [governing 
     the appointment of U.S. marshals] . . . seem to contemplate 
     three distinct operations:
       1. The nomination. This is the sole act of the President, 
     and is completely voluntary.
       2. The appointment. This is also the act of the President, 
     and is also a voluntary act, though it can only be performed 
     by and with the advice and consent of the Senate.
       3. The commission. To grant a commission to a person 
     appointed might, perhaps, be deemed a duty enjoined by the 
     Constitution. ``He shall,'' says that instrument, 
     ``commission all the officers of the United States.''
       The acts appointing to office, and commissioning the person 
     appointed, can scarcely be considered as one and the same; 
     since the power to perform them is given in two separate and 
     distinct sections of the Constitution.

  Although that case is not controlling in the Peterson situation 
because it did not involve the ineligibility clause, assuming that it 
governed here would still preclude our taking up the Congressman's 
nomination before the expiration of his present term. Under the 
reasoning of Marbury, Congressman Peterson would be appointed within 
the meaning of the ineligibility clause at the time the Senate were to 
give its advice and consent. Given the facts of his case, it would be 
unconstitutional for this body to confirm the Congressman by a floor 
vote prior to the next Congress.
  Moreover, Chairman Helms and I consider the nomination hearing to be 
an integral part of the process of advice and consent. It is, after 
all, the only time that the Senate as a body--through its Foreign 
Relations Committee--has a chance to personally examine and question 
the nominee and his qualifications for office. The committee then 
prepares a written report urging the full Senate to a particular course 
of action in voting for or against the nomination. We would, therefore, 
consider it constitutionally inadvisable to proceed with a hearing on a 
constitutionally ineligible nominee such as in this case until January 
next year--when the constitutional issue is no longer a problem.
  Next, Mr. President, we must consider whether the office of 
ambassador is a ``civil office of the United States'' and thus is 
governed by the clause. The OLC opinion contends that ``there is a 
difficult and substantial question'' whether it is a civil office, and 
that the only precedent it could find ``assum[ed] (without discussion) 
that it should be considered to be such an office. In accordance with 
that precedence [sic], we shall assume here, without deciding, that the 
Ambassadorship to Vietnam would be a `civil Office' within the meaning 
of the ineligibility clause.'' While the OLC opinion thus concedes

[[Page S9849]]

the point for purposes of this particular argument, I believe that an 
examination of the history of the ineligibility clause, as well as the 
nature of the office itself, clearly establishes that it is a civil 
office contemplated by the provision.
  The early drafts of what became the ineligibility clause did not 
limit the prohibition to civil office, but encompassed all offices of 
the United States. During the debates at the Constitutional 
Conventions, however, the Framers came to realize the danger in having 
the clause prohibit what might be some of the most able military men in 
the country from serving in the Armed Forces in time of war. Many 
officers from the Continental Army had become Members of Congress; if a 
war had broken out, the fledgling country would have been deprived of 
much of its officer corps because the then-proposed ineligibility 
clause would have prevented their joining until the expiration of their 
respective terms of office. So the adjective ``civil'' was added, to 
distinguish it from the military. This is in line with the dictionary 
definition of civil: ``of ordinary citizen or ordinary community life 
as distinguished from the military or ecclesiastical.'' So as 
contemplated by the Framers, an ambassadorship is clearly ``civil'' in 
nature.
  Similarly, an ambassadorship is clearly a Federal office, as that 
term is defined both in law and practice. For example, in United States 
versus Hartwell, the Supreme Court stated that ``a[] [Federal] office 
is a public station, or employment, conferred by the appointment of 
government. The term embraces the ideas of tenure, duration, emolument, 
and duties.'' Ambassadors are appointed by the President, and serve for 
the duration of a President's term or until they retire or are 
reassigned; they are paid from the Treasury; and they have a well-
defined and customary series of duties they perform--all the criteria 
of a Federal office.
  I would also note that article II, section 2 of the Constitution 
declares that ``the President shall nominate, and . . . shall appoint 
ambassadors . . . and all other officers of the United States.'' Note, 
Mr. President, the use of the term ``all other.'' This infers that 
ambassadors are part of the class of ``officers of the United States.'' 
In view of these facts, it can hardly be argued that an ambassadorship 
is not a civil office of the United States, and thus falls within the 
clause's prohibition.
  Finally, Mr. President, the ineligibility clause requires us to 
determine whether the office of Ambassador to the SRV is one which was 
created during the Congressman's term of office. As I previously 
mentioned, Representative Peterson was most recently elected on 
November 8, 1994, for a term that began on January 4, 1995, and that 
will end at noon on January 3, 1997. The President formally extended 
full diplomatic recognition to the SRV for the very first time in 
August 1995 and nominated Mr. Peterson to be Ambassador to the SRV on 
May 23, 1996.
  The White House has taken the creative position that:

       ...based on the facts and circumstances of this case, the 
     office of Ambassador to Vietnam has not yet been created. If 
     the Senate confirms Mr. Peterson, the President will not 
     create the position of Ambassador to Vietnam until after noon 
     on January 3, 1997. Therefore, so long as the Office is 
     created at a time after Mr. Peterson's term of office . . . 
     has expired, he can be appointed to the Office of Ambassador 
     [without running into constitutional problems].

  Rather than paraphrase the OLC argument, Mr. President, I ask 
unanimous consent the relevant portions be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              Excerpt From Office of Legal Counsel Opinion


                                  iii.

       We think it fair to say that the patterns of constitutional 
     practice that we have described do not conclusively answer 
     the question when the office of an ambassadorship is created. 
     Nonetheless, we think that the legal and historical materials 
     strongly point towards a particular answer, and we find that 
     answer to be considerably more persuasive than any of the 
     alternatives. Based on our survey of the materials, including 
     the 1814 debate, we believe that the following tests are 
     appropriate in determining when, for purposes of the 
     Ineligibility Clause, the President has created the office of 
     ambassador to a particular foreign State, in cases when such 
     an ambassadorship has not existed before or (as in the case 
     of Vietnam) has lapsed or been terminated:
       1. In the usual course, the office is created at the time 
     of appointment of the first ambassador to a foreign State 
     once the President establishes diplomatic relations with that 
     State. All that precedes the appointment--offering to 
     establish normal diplomatic relations, receiving the foreign 
     State's agreement to receive a particular person as the 
     United States' ambassador, nominating and confirming that 
     individual as ambassador--are all steps preparatory to the 
     creation of the office. If the President ultimately declines 
     to appoint an ambassador, the ``office'' is never created.
       2. The President, nonetheless, retains the power to alter 
     the ordinary course of events, and to create the office at 
     some other time--or not at all. The act of creating the 
     office must be distinguished from the preparatory steps 
     leading to its creation. The preparatory acts indicate that 
     the President intends to create the office; they do not in 
     themselves constitute its creation. Indeed, in the ordinary 
     course, the President should be understood to intend to 
     create the office of ambassador upon the appointment of the 
     individual as the first ambassador to the receiving State.
       We turn now to the application of these tests to the 
     ambassadorship to Vietnam.


                                  IV.

       The process by which the United States have been 
     normalizing its relations with Vietnam has been underway for 
     several years. The Republic of Vietnam (``RVN'') was 
     constituted as an independent State within the French Union 
     in 1950, and the United States sent a Minister to that State. 
     (The United States did not recognize the Democratic Republic 
     of Vietnam (``DRVN''), which had earlier declared itself to 
     be an independent State.) Thereafter, on June 25, 1952, the 
     United States appointed an Ambassador to the RVN, and 
     upgraded the United States Legation in Saigon to Embassy 
     status. In 1954, Vietnam was partitioned into what came 
     commonly to be called ``North'' and ``South'' Vietnam. 
     Despite an international agreement calling for the 
     reunification of Vietnam, that did not occur; instead, the 
     RVN, functionally, became South Vietnam, and the DRVN, 
     functionally, North Vietnam. The United States maintained an 
     ambassadorial post in the RVN from 1952 onwards. The last 
     United States Ambassador left his post in Saigon on April 29, 
     1975.
       After the Communist victory over South Vietnam in April, 
     1975, it became the position of the United States that 
     ``[t]he Government of South Vietnam has ceased to exist and 
     therefore the United States no longer recognizes it as the 
     sovereign authority in the territory of South Vietnam. The 
     United States has not recognized any other government as 
     constituting such authority.'' Republic of Vietnam v. Pfizer, 
     Inc., 556 F.2d 892, 895 n.4 (8th Cir. 1977) (quoting letter 
     from State Department).
       During the present Administration, several successive and 
     carefully measured steps were taken with a view to improving, 
     and perhaps normalizing, relations between the United States 
     and Vietnam. On July 2, 1993, President Clinton announced 
     that the United States would no longer oppose the resumption 
     of aid to Vietnam by international financial institutions. On 
     February 3, 1994, the President announced the lifting of the 
     United States' embargo against Vietnam. He also announced an 
     intent to open a liaison office in Hanoi in order to promote 
     further progress on issues of concern to both countries, 
     including the status of American prisoners of war and 
     Americans missing in action. His statement emphasized, 
     however, that ``[t]hese actions do not constitute a 
     normalization of our relationships. Before that happens, we 
     must have more progress, more cooperation and more answers.'' 
     On May 26, 1994, the United States and Vietnam formally 
     entered into consular relations within the framework of the 
     1963 Vienna Convention on Consular Relations, to which both 
     States were party. The United States, however, continued to 
     condition diplomatic relations on progress in areas of 
     concern to it. On January 28, 1995, the United States and 
     Vietnam signed an agreement relating to the restoration of 
     diplomatic properties and another agreement relating to the 
     settlement of private claims. On July 11, 1995, the President 
     announced an offer to establish diplomatic relations with 
     Vietnam under the Vienna Convention on Diplomatic Relations--
     an offer that Vietnam accepted on the following day. In 
     announcing that offer, the President stated that from the 
     beginning of his Administration, ``any improvement in 
     relationships between America and Vietnam has depended 
     upon making progress on the issue of Americans who were 
     missing in action or held as prisoners of war.'' Soon 
     thereafter, the United States Liaison Office in Hanoi was 
     upgraded to a Diplomatic Post.
       On May 8, 1996, the Government of Vietnam gave its 
     agreement (``agreement'') to the United States' proposal that 
     Representative Peterson be Ambassador Extraordinary and 
     Plenipotentiary of the United States to Vietnam. On May 23, 
     1996, the President submitted Mr. Peterson's name to the 
     United States Senate for its advice and consent to that 
     appointment.
       In our judgment, while this pattern of activity 
     demonstrates that the President fully intends and expects to 
     create the office of ambassador to Vietnam, it does not 
     establish

[[Page S9850]]

     that he has, in fact, yet done so. The establishment of 
     diplomatic relations does not entail the establishment of a 
     diplomatic mission or the creation of the office of an 
     ambassador. See Vienna Convention on Diplomatic Relations, 
     art. 2. Moreover, the existence of diplomatic relations with 
     Vietnam does not require (although it may normally assume) an 
     exchange of ambassadors, since relations may be conducted at 
     a lower diplomatic level. Further, we do not think that 
     Vietnam's agreement to receive Mr. Peterson as ambassador 
     establishes that that office exists for constitutional 
     purposes. Nor (although the question is closer) does the 
     President's decision to submit Mr. Peterson's name to the 
     Senate for confirmation. Even if Mr. Peterson is confirmed, 
     the President would retain the discretion not to send an 
     ambassador to Vietnam, or otherwise not to create that 
     office. In view of the facts that the United States has not 
     had an ambassador to Vietnam since 1975 (and has never had an 
     ambassador to the present government), that the process of 
     normalizing relations between the United States and Vietnam 
     has been a complex and protracted one, and that 
     contingencies, however unlikely, may yet arise that would 
     lead the President to conclude that it was not in the United 
     States' best interests to appoint and send an ambassador, we 
     do not think that the office of ambassador to Vietnam can be 
     said to exist unless and until the President actually 
     completes the process by appointing an officer to that 
     position. Accordingly, if the President decides not to 
     appoint Mr. Peterson to that office until after the 
     expiration of the present term of Congress on January 3, 
     1997, we do not think that Mr. Peterson is constitutionally 
     ineligible for that appointment.
       In the interests of clarity, we repeat that we are not 
     maintaining that an ``appointment'' within the meaning of the 
     Ineligibility Clause does not occur until the appointee is 
     actually commissioned by the President. Whatever the merits 
     of that view as an original proposition (and they are 
     substantial),\31\ we are not writing on a clean slate. 
     Accordingly, we follow the centuries-old teaching and 
     practice of the Executive branch in assuming that the 
     nomination of an ineligible individual is itself a 
     constitutional nullity, even if the commissioning of that 
     individual were to occur after the term of his or her 
     ineligibility. Our position is that, in the singular 
     circumstances of this case, the relevant office--the 
     Ambassadorship to Vietnam--has not yet been ``created,'' so 
     that no ineligibility exists. Thus, both the President's act 
     of nominating Mr. Peterson, and the Senate's act of 
     confirming him (if it does), are constitutionally valid.

  Mr. THOMAS. Mr. President, I must say that this is one of the least 
straightforward legal arguments that I have seen. In effect, the 
administration is saying ``go ahead and hold a hearing on the fitness 
of this nominee to occupy and conduct the duties of an office which we 
have not yet created but will create at some time in the future.'' I 
believe that the clear and serious problems with that argument are 
self-evident.
  Mr. President, what the OLC proposes raises a serious constitutional 
separation of powers issue in my mind. The Senate's advice and consent 
function requires a review not simply of the nominee, but of his or her 
qualifications and fitness to fill a particular office. To call for 
Senate confirmation of a nominee before the creation of the office that 
he would fill would deprive the Senate of that complete inquiry.
  The OLC has sought to brush aside the problems created by asking us 
to hold a hearing on an uncreated office by stating that ``[e]ven if 
that particular ambassadorship has yet to be created, the duties and 
responsibilities of an ambassador are of course perfectly familiar to 
the Senate.'' But hypothetically, Mr. President, if we were to confirm 
an ambassador for an as-yet uncreated office, what is there to assure 
us that a President could not simply change the nature or duties of the 
office at his whim after the fact, leaving us--having given our 
consent--with no constitutional recourse? The Framers of the 
Constitution did not envision a carte blanche for the State Department 
in circumstances such as these.
  To hold a hearing under these circumstances would set an unadvisable 
precedent for the Senate. Although the OLC states that there is 
precedent for our confirming a nominee for which the office did not yet 
exist, their two examples are not applicable to the facts in the 
Peterson case. First and foremost, none involved the position of 
ambassador. Second, both involved executive-branch bodies that were 
legislatively created--the Occupational Safety and Health Review 
Commission, and the Department of Health, Education and Welfare. The 
legislation creating each office had already become law, but provided 
that the particular respective offices and their holders --in these 
cases OSHRC Commissioner and Secretary of HEW--were to become effective 
at a later specific date. So OLC overlooks the fact that the offices 
had therefore already been created, but they were just not yet 
functional at the time the nominees were confirmed. An unfilled office 
is hardly the same thing as an uncreated office.
  Given all this, Mr. President, I feel that the Constitution presently 
precludes our giving our advice and consent regarding the Peterson 
nomination. Moreover, I believe that it is inadvisable--in view of the 
Senate's constitutional role in the nomination process--to move ahead 
with the nomination hearing. If we accept for the sake of argument the 
White House position that, as the State Department spokesman put it, 
the office of ambassador is not created until the nominee actually 
takes up that office, we would be holding a hearing on confirming an 
individual for a position that does not yet exist. I have just 
mentioned the problems I have with that conclusion. How then would we 
exercise what is basically our constitutionally mandated oversight 
function? How would we determine whether the nominee is fit for the 
office to which he has been nominated if that office--and consequently 
its constituent functions and duties --has not come into being?
  Given all these substantial problems, I and the chairman have 
concluded that it would be better to postpone the hearing on 
Representative Peterson's nomination until after January 3, 1997, when 
his term--and the constitutional issue--expire. I pledge to my 
colleagues, and more importantly to Congressman Peterson, that if I am 
chairman of the East Asia Subcommittee in the next Congress my very 
first hearing will be on this nomination. And I will, in any case, do 
everything I can to expedite the nomination process for him.
  Mr. President, in closing let me stress what our decision to postpone 
the hearing is not about. First, as I mentioned at the beginning of my 
statement today it is not about Pete Peterson. I have never heard any 
Member, regardless of their position on normalization of relations with 
the SRV, have anything but praise for the Congressman. He has an 
exemplary record of service to his country spanning several decades of 
which I believe all my colleagues are aware. As an Air Force captain, 
he was flying a combat mission in September 1966 when a North 
Vietnamese surface-to-air missile struck his Phantom jet fighter. He 
ejected free of the plane, but parachuted into a tree in the dark 
breaking an arm, leg, and shoulder. He was captured by the Vietnamese 
and spent 6\1/2\ years as a POW. He first came to Congress in 1991. 
When his nomination comes before the committee and the full Senate, I 
intend to vote in favor of it.
  It is unfortunate, frankly, that Congressman Peterson has become the 
victim of what I would charitably characterize as administration 
bungling. The administration completely failed to address this issue 
until our staffs brought it to their attention in mid-July. But it 
should not have come as a surprise to them, Mr. President--the issue 
has come up several times in previous administrations and even once in 
this administration with the nomination of Senator Lloyd Bentsen to be 
Treasury Secretary. Sadly, the only mention of the issue in the 
Administration prior to our raising the issue was the following one-
page memo dated May 17, 1996, which somewhat ironically only addresses 
the emoluments portion of the clause--the only portion of the clause 
not applicable in Congressman Peterson's case. Mr. President, I ask 
unanimous consent that the full text of the memo be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                     U.S. Department of State,

                                     Washington, DC, May 17, 1996.
     Memo for the file.
     Subject: Nomination of Congressman Pete Peterson to be 
         Ambassador to Vietnam.
       In response to a question from the Executive Clerk at the 
     White House, Mary Beth West, L/LM, and her staff researched 
     the possible impact on Congressman Peterson's ambassadorial 
     nomination of Article 1, Section 6, of the Constitution which 
     states:
       ``No Senator or Representative shall, during the Time for 
     which he was elected, be appointed to any civil Office under 
     the Authority of the United States, which shall have

[[Page S9851]]

     been created, or the Emoluments whereof shall have been 
     increased during such time; and no Person holding any Office 
     under the United States, shall be a Member of either House 
     during his Continuance in Office.''
       In consultation with the Office of Legal Counsel at the 
     Justice Department and the White House Counsel's Office, it 
     was determined that this constitutional requirement only 
     prohibits the appointment of a Senator or Representative to a 
     civil office if an act of Congress has created, or increased, 
     the emoluments of that office during that Senator's or 
     Representative's current term of office. In Congressman 
     Peterson's case, there have been no salary increases covering 
     ambassadors during his current term of office.

  Mr. THOMAS. Had the administration done its job, Congressman Peterson 
would have been spared the surprise and awkwardness of having his 
hearing postponed for several months. It is unfortunate that he has 
become a victim of this administration's unfortunate tendency to be 
reactive, rather than proactive, in its foreign policy decisions.
  In some other circumstances, Mr. President, I might worry about a 
delay in sending an ambassador to a particular country and the effect 
such a delay might have on our foreign policy. Since May the State 
Department has been strongly urging the Senate to take up the Peterson 
nomination at the earliest possible date because ``it is vital to U.S. 
interests that we have an Ambassador in place there.'' With that sense 
of urgency, the Department was continually requesting that the 
nomination be placed on a fast track. That sense of urgency is 
unabated, but the White House has terminally undercut its own argument 
by stating that even if the Senate gave its advice and consent in this 
session to avoid a constitutional problem it would not officially 
commission and send him to Hanoi until after the expiration of his 
present term--in other words not until next January--to avoid 
constitutional complications. It seems to make little sense to hold a 
hearing now on a nominee who all sides agree is constitutionally barred 
from taking office until the next Congress convenes. Thankfully for 
Congressman Peterson, our delay will not appreciably add to the time he 
will now be kept from his new position.
  Second, the postponement it is not about what I view as the 
administration's hurried move to normalize relations with the SRV. It 
will not come as a surprise to anyone that as a Senator I have opposed 
normalization in the past. My opposition was not based on my dislike of 
that country's communist dictatorship, or even its brutal repression of 
its own people--although in this administration's somewhat hypocritical 
view these two bases seem sufficient to deny diplomatic recognition to 
other countries such as Cuba, North Korea, and Burma. Rather, I did not 
believe that we should reward Hanoi with normalization when, in my 
opinion and the opinion of many other Members of this and the other 
body, Hanoi had not been sufficiently forthcoming with information 
about our country's missing and dead servicemen.
  I acknowledge that the President has wide latitude in the conduct of 
foreign policy, he has made the decision to normalize relations, and 
the Congress has more or less decided to go along with that decision. I 
have repeatedly stated that I will not stand in the way of that process 
simply because I disagree with the original decision.
  Third, the decision to postpone is decidedly not--I repeat not--about 
politics. While it has become somewhat ``normal'' in the Senate for a 
committee controlled by one party to hold up action on the nominees 
proposed by a President from the opposing party at the close of an 
election year, such is not the case in this committee this year. The 
distinguished full committee chairman, Mr. Helms, made it clear several 
months ago that it is his intention to move all matters pending before 
the committee--whether nominations, legislation, or treaties--out to 
the full Senate in time for them to be acted upon before the Senate 
adjourns sine die sometime in October; I fully support that position.
  In addition, I have never managed issues within the jurisdiction of 
my subcommittee in anything less than a fully bipartisan spirit. I 
firmly believe that to be effective, U.S. foreign policy is an issue 
that should be insulated from the currents and eddies of partisan 
politics. Toward that end, I have never raised objections to an 
ambassadorial nominee solely because he or she was a Democrat, or a 
political, as opposed to a career, nominee. First, I would not have 
scheduled, and then rescheduled, this nomination hearing if I had not 
had every intention of moving forward with it. Nor would I go on record 
as publicly committing myself to make the Peterson nomination my first 
of 1997.
  Fourth, this is not a question of the committee making a mountain out 
of a molehill. It is not some arcane issue to which we can turn a blind 
eye. It exists in black and white in the Constitution, the very 
document that many Members of this body carry with them daily and which 
all of us have sworn to uphold.
  Some might ask, ``What would it harm to simply overlook the 
problem?'' What would it harm, Mr. President? Simply put, I believe 
strongly that it would harm the Constitution and the Senate. There is 
an enormous temptation to chisel at the margins of the Constitution. 
The temptation becomes almost irresistible when the corner chiseled at 
is deemed a nuisance and the likelihood is very remote that anyone 
would bring a lawsuit against those holding the chisel. The 
ineligibility clause would seem to fall into this category.
  But a constitutional violation is no less a constitutional violation 
simply because the offended provision is perceived to be a minor one, 
or because of the absence of a judicial ruling to that effect. The 
President has taken an oath to uphold the Constitution; so have I, and 
I take that oath very seriously. The duty extends to every part of that 
document, not just to those portions that are considered convenient or 
more expedient than others. We should not turn our backs on the 
Constitution simply because we agree Congressman Peterson is a good 
candidate or because the State Department would rather that he have his 
hearing now as opposed to later. Given the Constitution or the 
administration's convenience, the choice is clear.

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