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A Battle Cry From Interior Nominee

By John Mintz
Thursday, January 11, 2001

In a 1996 speech to a conservative group, Interior Secretary-designate Gale A. Norton likened her struggle to preserve states' rights to the cause of the Confederacy, saying, "We lost too much" when the South was defeated in the Civil War.

Norton, then Colorado's attorney general, described slavery as the kind of "bad facts" that can undermine an otherwise powerful legal case. She made the speech to the Independence Institute, a conservative think tank in Denver on whose board of directors she has served.

Norton did not endorse slavery, but rather used the comparison to the Confederacy to make a more fundamental point -- endorsed by a number of conservative legal activists and scholars -- about the importance of states' rights against the federal government. Norton spoke of being on the receiving end of what she considered intrusive orders from the federal government as state attorney general.

In the situation of the Confederacy, "we certainly had bad facts in that case where we were defending state sovereignty by defending slavery," she said in the speech. "But we lost too much. We lost the idea that the states were to stand against the federal government gaining too much power over our lives."

If confirmed as interior secretary, Norton would have significant power to decide how assertive the department should be in requiring states to comply with federal environmental laws and rules governing mining, drilling and grazing leases.

Norton's comments drew fire from two environmental groups that unearthed her speech. They said it indicated a lack of sensitivity to the horror of slavery and represented a troubling view of the role of the federal government in protecting the environment.

"Her deeply divisive remarks suggest she lacks a vital instinct to protect what needs protecting, whether it's wilderness or the rights of people of color," said Kenneth A. Cook, president of one of the groups, the Environmental Working Group, an activist environmental research organization. "There are 1 million ways to debate states' rights without lamenting the demise of the Confederacy . . . unless you approach the topic with a disturbingly extreme philosophy."

Her remarks were brought to light by Cook and Doug Kendall, executive director of the Community Rights Counsel, a group that defends local governments in property rights cases. They jointly wrote a letter to Norton asking her to explain her comments.

"Who is 'we' in the phrase 'we lost too much,' and what specifically was 'lost' when the Confederacy lost and slavery ended in 1865?" they asked.

Norton, through a spokesman for the transition of President-elect Bush, declined comment. Inquiries were referred to Norton's longtime chief deputy at the attorney general's office, Marti Allbright, who said Norton was in no way expressing nostalgia for slavery or advocating secession.

"She was saying that people have laid down their lives in support of states' rights," said Allbright. "That's the difference between the southern and northern perspectives in the Civil War."

Allbright also pointed out that much of the speech was devoted to the 10th Amendment, which grants to the states "powers not delegated to the United States."

"Her larger point was the 10th Amendment is an integral part of our Constitution," Allbright said. She added that "it's a huge stretch" to assert any connection between Norton's reference to the Civil War and her opposition to affirmative action as attorney general.

In the speech, Norton recalled making a trip to a Civil War graveyard shortly after going through a massive battle with the Environmental Protection Agency on state sovereignty.

"I remember seeing this column that was erected in one of those graveyards," Norton said. "It said, in memory of all the Virginia soldiers who died in defense of the sovereignty of their state. It really took me aback. Sure, I had been filing briefs, and I thought that was pretty brave."

At times, she said, the lawsuits she filed were hobbled by "bad facts" that raised questions about her underlying arguments -- such as the fact that the very day her attorneys argued in federal court in Denver against an EPA requirement to restrict automobile emissions, the city was suffering a day of horrendous smog.

"Part of the reason the states need to be able to make their own decisions is to provide that check in our federal system against too much power going to Washington," she said.

In the speech, Norton also recalled she once considered filing suit as attorney general opposing federal requirements under the Americans With Disabilities Act that a renovation of the Colorado statehouse had to include a wheelchair ramp. She called it "a really ugly addition to the state capitol."

Norton said she ultimately decided against filing suit to question rules imposed by the law, which former president George Bush has described as one of his proudest achievements in office.

Another Bush nominee, Attorney General-designate John Ashcroft, also has been criticized for nostalgic references to the Civil War in a 1998 interview with Southern Partisan, a magazine that defends the South in that struggle.

"Your magazine also helps set the record straight," said Ashcroft, then a senator from Missouri. "You've got a heritage of doing that, of defending Southern patriots like [Gen. Robert E.] Lee, [Gen. Thomas J. "Stonewall"] Jackson and [Confederate President Jefferson] Davis."

"Traditionalists must do more," Ashcroft continued. "I've got to do more. We've all got to stand up and speak in this respect, or else we'll be taught that these people were giving their lives, subscribing their sacred fortunes and their honor to some perverted agenda."

Asked to comment on Ashcroft's remarks, Bush transition spokesman Mindy Tucker said, "Sen. Ashcroft believes in an exact reading of history."

Matthew Berry, a staff attorney for the Institute for Justice, a conservative legal group, said that although his organization strongly supports Norton, it is rare for people in his movement to defend the 10th Amendment by embracing the Confederacy.

"It's terrible from a public relations perspective," Berry said. "It's not a great way to win converts."

© 2001 The Washington Post