Transcript - S. Hrg. 107-196 - Confirmation Hearing on the Nomination of John Ashcroft to Be Attorney General of the United States

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH Senator Hatch. Thank you, Mr. Chairman. I am glad to welcome the members of the Ashcroft family and you, Senator Ashcroft, and the witnesses here today, including Senator Ashcroft's highly accomplished wife, Janet, who has been a professor of business law here in Washington, D.C, at Howard University for the past 5 years. I want to take a moment to let the Ashcroft family know how much we appreciate their sacrifices while John has served in public office.

Patrick Leahy

Patrick Leahy

John Ashcroft is no stranger to the Senate Judiciary Committee. He served on our Committee with distinction over the past 4 years, working closely with members on both sides of the aisle on a variety of issues ranging from privacy rights to racial profiling. As a member of the Committee, he proved himself a leader in many areas, including the fight against drugs and violence, the assessment of the proper role of the Justice Department, and the protection of victims rights.

Patrick Leahy

John has an impressive record with almost 30 years of public service: 8 years as Missouri State Attorney General during which time he was elected by his 50 State attorney general peers to head the National Association of Attorneys General; 8 years as Governor of the great State of Missouri, during which time he was elected by the 50 Governors to serve as the head of the National Governors Association; 6 years in the U.S. Senate, 4 of which he has served here with us on the Senate Judiciary Committee.

Patrick Leahy

Of the 67 Attorneys General in the history of this country, only a handful come even close to having even some of the qualifications that John Ashcroft brings in assuming the position of chief law enforcement officer of this great Nation.

Patrick Leahy

To effectively prevent and manage crises in these important areas, one thing is certain: We need a no-nonsense person with the background and experience of John Ashcroft at the helm. Those charged with enforcing the law of the Nation must demonstrate both the proper understanding of the law and a determination to uphold its letter and spirit. This is the standard I have applied to nominees in the past, and this is the standard that I am applying to John Ashcroft.

Patrick Leahy

During John Ashcroft's 30-year service for the public, he has worked to establish a number of things to keep Americans safe and free from criminal activities: tougher sentencing laws for serious crimes, keeping drugs out of the hands of children, improving our Nation's immigration laws, protecting citizens from fraud, and protecting competition in business. He has supported funding increases for law enforcement. He held the first hearings ever on the issue of racial profiling. He has been a leader for victims rights in courts of law and helped to enact the Violence Against Women bill, provisions making violence at abortion clinic fines non-dischargeable in bankruptcy, authored anti-stalking laws, fought to allow women accused of homicide to have the privilege of presenting battered spouse syndrome evidence in the courts of law. As Governor, he commuted the sentences of two women who did not have that privilege. He signed Missouri's hate crimes bill into law.

Patrick Leahy

I could go on and on. His record is distinguished.

Patrick Leahy

Senator Ashcroft, during these hearings we are eager to hear, and the American people are eager to hear your plans for making America a safer place to live. A great number of people have said to me that they are tired of living in fear. They want to go to sleep at night without worrying about the safety of their children or about becoming victims of crime themselves.

Patrick Leahy

I know you, and I am familiar with your distinguished 30- year record of enforcing and upholding the law. And I feel a great sense of comfort and a new-found security in your nomination to be our Nation's chief law enforcement officer.

Patrick Leahy

Mr. Chairman, I have one request of my colleagues as we proceed. In keeping with our promise to work in a bipartisan fashion, I ask that we begin with a rejection of the politics of division. If we want to encourage the most qualified citizens to serve in government, we must do everything we can to stop what has been termed the "politics of personal destruction." This is not to say that we should put an end to an open and candid debate on policy issues. Quite the contrary, our system of government is designed to promote the expression of these differences and our Constitution protects it. But the fact is that all of us, both Democrats and Republicans, know the difference between legitimate policy debate and unwarranted personal attacks promoted and sometimes urged by narrow special interest groups.

Patrick Leahy

John Ashcroft, like many of us, is a man of strongly held views. I have every confidence based on his distinguished record that as Attorney General he will vigorously work to enforce the law whether or not the law happens to be consistent with his personal views.

Patrick Leahy

Finally, Mr. Chairman, you know that I would have preferred a format similar to that followed for President Clinton's nominees and prior nominees for the last four Attorney General nominees: no more than a 2-day hearing, with outside interest groups submitting their testimony in writing. But I am sure that you will endeavor to be fair as we proceed with this hearing. I have confidence in that, and I look forward to these proceedings and look forward to participating in them.

Patrick Leahy

I see members of Senator Ashcroft's family here with him today, including his highly accomplished wife who has been a professor of business law, here in the District, at Howard University for the past five years. I want to take a moment to let the Ashcroft family know that we appreciate their many sacrifices while John has served the public.

Patrick Leahy

Patrick Leahy

John Ashcroft is no stranger to the Senate Judiciary Committee. He served on our Committee with distinction over the past four years -- working closely with members on both sides of the aisle on a variety of issues ranging from privacy rights to racial profiling. As a member of the Committee, he proved himself a leader in many areas, including the fight against drugs and violence, the assessment of the proper role of the Justice Department, and the protection of victims rights.

Patrick Leahy

John has an impressive almost 30-year record of public service: (1) 8 years as Missouri State Attorney General during which time he was elected by his attorney general peers across the nation to head the National Association of Attorneys General. (2) 8 years as Governor of the State of Missouri during which time he was elected by the SO governors to serve as head of the National Governors' Association. (3) 6 years in the U.S. Senate, 4 of which he has served with distinction on the Judiciary Committee. Of the 67 Attorneys General in the history of this country, only a handful come close to even having some of the qualifications that John Ashcroft brings in assuming the position of chief law enforcement officer of this great nation.

Patrick Leahy

The Department of Justice, of course, encompasses broad jurisdiction. It includes the executive administration of organizations ranging from the Drug Enforcement Administration, the Immigration and Naturalization Service, the U.S. Marshall Service, the Federal Bureau of Investigations, all of the United States Attorneys, to the Bureau of Prisons. It includes, among other things, enforcement of the law in areas including antitrust, terrorism, fraud, money laundering, organized crime, drugs, and immigration, just to mention a few. To effectively prevent and manage crises in these important areas, one thing is certain: we need at the helm a no-nonsense person with the background and experience of John Ashcroft. Those charged with enforcing the law of the nation must demonstrate both a proper understanding of that law and a determination to uphold its letter and its spirit. This is the standard I have applied to nominees in the past, and this is the standard I am applying to John Ashcroft here.

Patrick Leahy

During John Ashcroft's 30-year career in public service, he has worked to establish a number of things to keep Americans safe and free from criminal activities:

Patrick Leahy

Tougher sentencing laws for serious crimes. (2) Keeping drugs out of the hands of children. (3) Worked to improve our nation's immigration laws. (4) Protected citizens from fraud. (5) Protected competition in business. (6) He has supported funding increases for law enforcement. (7) He held the first hearings ever on racial profiling. (8) He has been a leader for victims' rights in the courts of law and otherwise. (9) He helped to enact the Violence Against Women Bill. (10) He supported provisions making violence at abortion clinic fines non dischargeable in bankruptcy. (11) He authored anti-stalking laws. (12) He has fought to allow women accused of homicide to have the privilege of presenting battered spouse syndrome evidence in the courts of law. As governor, he commuted the sentences of two women who did not have the privilege of presenting battered spouse syndrome in their case. (13) He signed Missouri's hate crimes bill into law. I could go on and on. His record is distinguished. Senator Ashcroft, during these hearings, we are eager to hear -- and the American people are eager to hear -- your plans for making America a safer place to live. I can't begin to tell you the number of people who have said to me that they are tired of living in fear. They want to go to sleep at night without worrying about the safety of their children or about becoming victims of crime themselves. As someone who knows you as a person and who is familiar with your distinguished 30-year record of enforcing and upholding the law, I can tell you that I feel a great sense of comfort and a new-found security in your nomination to be our nation's chief law enforcement officer.

Patrick Leahy

Mr. Chairman, we have served with John Ashcroft, and we know that he is a man of integrity, committed to the rule of law and the Constitution. We know that he is a man of compassion, of faith, and of devotion to family. We know that he is a man of impeccable credentials and many accomplishments. Abraham Foxman, National Director of the AntiDefamation League, last week praised Senator Ashcroft as a "fair" and "just" man. Sometimes in life, though, the measure of a person is best seen in times of adversity. So it is with John Ashcroft who, after a difficult battle for something that meant a great deal to him -- re- election the Senate -- resisted calls to challenge the outcome of that election. His own words during this difficult time say it best: "Some things are more important than politics, and I believe doing what's right is the most important thing we can do. I think as public officials we have the opportunity to model values for our culture -- responsibility, dignity, decency, integrity, and respect. And if we can only model those when it's politically expedient to do so, we've never modeled the values, we've only modeled political expediency." Contrary to what a few special interest groups with a narrow political agenda would have us believe, these are not the words of a divisive ideologue, they are the words of a uniter who is willing to do the right thing, even when it means putting himself last.

Patrick Leahy

Mr. Chairman, I have one request of my colleagues as we proceed. In keeping with our promise to work in a bipartisan fashion, I ask that we begin with a rejection of the politics of division. If we want to encourage the most qualified citizens to serve in government, we must do everything we can to stop what has been termed the "politics of personal destruction." This is not to say that we should put an end to an open and candid debate on policy issues. Quite the contrary: our system of government is designed to promote the expression of these differences and our Constitution protects it. But the fact is that all of us -- both Democrats and Republicans know the difference between legitimate policy debate and unwarranted personal attacks promoted -- and sometimes urged -- by narrow interest groups.

Patrick Leahy

I was saddened to read in the New York Times on Saturday that "the leader of a major liberal group opposing Mr. Ashcroft's nomination expressed disappointment that the comments were not much different from those many politicians offer in religious settings." They quoted this "leader" as saying `[t]his, clearly, will not do it,' this person said of hopes that the speech might help defeat the nomination." I ask my colleagues to be especially cognizant in this context of the enormous harm that will come to our Nation and our democracy if we fall into the traps of the narrow special interest and allow the politics of personal destruction to continue for the benefit of a narrow few but to the detriment of a greater many.

Patrick Leahy

John Ashcroft, like many of us, is a man of strongly held views. I have every confidence, based on his distinguished record, that as Attorney General, he will vigorously work to enforce the law -- whether or not the law happens to be consistent with his personal views. I know that some of my colleagues will want to question the nominee on that point in particular, and I look forward to those exchanges.

Patrick Leahy

Finally, Mr. Chairman, you know that I would have preferred a format similar to that followed for President Clinton's nominees for Attorney General: a two-day hearing with outside interest groups submitting their testimony in writing. But I'm sure that you will endeavor to be fair as we proceed with this hearing. Thank you.

Patrick Leahy

Thank you, Senator Hatch, and I can assure you the hearings will be fair. There are 280 million Americans who have views on who should be Attorney General. There will be interest groups of the left or the right who may have suggestions. Ultimately, there are only 100 Americans who will get to vote on that issue, and those are the 100 Members of the Senate. The whole tone of the debate and the final outcome will be decided by us.

Patrick Leahy

Just so we can understand how we will do this, we will give each Senator an opportunity for brief opening remarks. I would ask that they keep it to 3 or 4 minutes. We will then turn to the nominee both for the introductions and opening remarks. And then we will have the opportunity to question the nominee for 15 minutes each the first go-round and then shorter ones if we need to continue questions after that.

Patrick Leahy

What I would like to do, once we have all finished our opening statements, is to take a very short break so that those who are going to introduce him and all other witnesses will know what is going to happen. But with that, I would turn to the distinguished senior Senator from Massachusetts, also former Chairman of this Committee, Senator Kennedy.

Joe Kennedy III

Mr. Chairman, thank you for holding these hearings. They may well be the most important hearings that our Committee will have this year. The power and reach of the Department of Justice is vast, and the person at its head must have the ability and the commitment to enforce the laws vigorously. The reality and perception of fairness must be without question.

Joe Kennedy III

Joe Kennedy III

During Senator Ashcroft's quarter-century in public service, he has taken strong positions on a range of important issues in the jurisdiction of the Justice Department. Unfortunately and often, he has used the power of his high office to advance his personal views in spite of the law of the land.

Joe Kennedy III

The vast majority of Americans support vigorous enforcement of our civil rights laws, and those laws and the Constitution demand it. Senator Ashcroft, however, spent significant parts of his term as Attorney General of Missouri and his term as Governor strongly opposing school desegregation and voter registration in St. Louis.

Joe Kennedy III

The vast majority of Americans believe in access to contraception and a woman's right to choose, and our laws and Constitution demand it. Senator Ashcroft does not, and his intense efforts have made him one of the principal architects of the ongoing right-wing strategy to dismantle Roe v. Wade and abolish a woman's right to choose.

Joe Kennedy III

Deep concerns have been raised about his record on gun control. He has called James Brady "the leading enemy of responsible gun owners." Senator Ashcroft is so far out of the mainstream that he has said citizens need to be armed in order to protect themselves against a tyrannical government. Our government? Tyrannical? In fact, he relies on an extreme reading of the right to bear arms under the Second Amendment to the Constitution to oppose virtually all gun control laws.

Joe Kennedy III

He doesn't show the same respect for the right of free speech under the First Amendment. In 1978, as Attorney General of Missouri, he tried to use the antitrust laws to undermine the right to free speech of the National Organization for Women and prevent a boycott of Missouri by the organization over the State's refusal to ratify the Equal Rights Amendment.

Joe Kennedy III

As these few examples demonstrate, the clear question before the Senate is whether, if confirmed as Attorney General, Senator Ashcroft will be capable of fully and fairly enforcing the Nation's laws to benefit all Americans, even though he profoundly disagrees with many of the most important of those laws. His past actions strongly suggest that he will not.

Joe Kennedy III

Senator Ashcroft's record in Missouri and in the Senate is extremely troubling on this basic question. Many of us, probably all of us, who have served with Senator Ashcroft respect his ability on the issues and his intense commitment to the principles he believes in, even though we disagree profoundly with some of those principles. We know that while serving in high office he has time and again aggressively used litigation and legislation in creative and inappropriate ways to advance his political and ideological goals. How can we have any confidence at all that he won't do the same thing with the vast new powers he will have at his disposal as Attorney General of the United States?

Joe Kennedy III

President-elect Bush has asked us to look in Senator Ashcroft's heart to evaluate his ability and commitment to enforce the laws of our country. But actions speak louder than words, and based on his repeated actions over many years, it is clear that Senator Ashcroft's heart is not in some of the most important of the Nation's laws.

Joe Kennedy III

The person who serves as Attorney General must inspire the trust and respect of all Americans. Inscribed in stone over the center entrance to the Department of Justice is this phrase: "The place of justice is a hallowed place." All Americans deserve to have confidence that when the next Attorney General walks through the doors of Justice and into that hallowed place, he will be serving them, too.

Joe Kennedy III

Thank you, Mr. Chairman. I look forward to the hearings.

Patrick Leahy

Thank you, Senator Kennedy.

Patrick Leahy

We will put Senator Biden's statement in the record.

Patrick Leahy

I very much regret not being able to be here today for the start of these hearings, but I am in California representing the Foreign Relations Committee and the Senate at the memorial service for our late colleague and friend, Alan Cranston.

Patrick Leahy

Let me also preface my remarks by welcoming John Ashcroft, our former colleague and Judiciary Committee member.

Patrick Leahy

"You are . . . to become the people's lawyer more than you are to be the President's lawyer. Consequently, the question relating to your nomination is not merely whether or not you possess the intellectual capabilities and the legal skills to perform the task of Attorney General, and not merely whether you are a man of good character and free of conflict of interest that might compromise your ability to faithfully and responsibly and objectively perform your duties as Attorney General, but whether you are willing to vigorously enforce all the laws and the Constitution even though you might have philosophical disagreement with them, and whether you possess the standing and temperament that will permit the vast majority . . . of the American people to believe that you can and will protect and enforce their individual rights." That is what I said in my opening statement at the confirmation hearings for Attorney General in 1984, and that is still the standard that has to be met today. Permit me to elaborate why I believe so much is at stake in these hearings for the American people.

Patrick Leahy

For me, one of the most memorable things about the unforgettable presidential election recently concluded was Joe Lieberman's frequent comment, "Only in America." .

Patrick Leahy

That seemingly off-the-cuff remark resonated deeply with many Americans because, in a simple way, it speaks to the notion that the United States has unique qualities and values:

Patrick Leahy

It's true that other countries value democracy, but most of them are not places where unlimited opportunity abounds for every citizen ...where merit and ability trump inheritance ...where individual potential is not constrained by class, by religion, or by race. "Only in America" To this very day, at the beginning of this new century, millions of people from every corner of the globe still want to come to America, because they believe we stand for equality, justice and opportunity.

Patrick Leahy

Those of us living comfortable lives in this great country sometimes forget that these ideas are not abstractions for the vast multitude of people less fortunate.

Patrick Leahy

Millions of American citizens and their ancestors took the words on the Statue of Liberty quite literally: .

Patrick Leahy

Give me your tired, your poor, your huddled masses yearning to breathe free. . . the wretched refuse of your teeming shore. Send these, the homeless, tempest-tossed to me. Many of us learned our family narratives at the feet of people like my grandfather Ambrose Finnegan, whose mother Dolly came to this generous country, yearning to breathe free.

Patrick Leahy

But not every narrative ends with a grateful grandson who knows that whatever measure of success I've had is due to the values I learned at home.

Patrick Leahy

The sad truth is that in this country there are many for whom the dream has not been realized, who still confront indignities, prejudice and worse.

Patrick Leahy

We are a great nation not because we are perfect, but because we hold out the promise -- the guarantee -- that those stymied by unfair practices and policies have an address where they can go to demand justice. That address is the courthouse, and the United States Department of Justice.

Patrick Leahy

And the nation's chief law enforcement officer, the Attorney General, is the embodiment of that guarantee that justice will not be delayed, that it will not be denied, that it will not be compromised. . . that it must, and will, be served.

Patrick Leahy

It is not enough for a servant of the court, and especially for an attorney general, to simply acknowledge that we have laws that ought to be enforced.

Patrick Leahy

We have made significant progress in my lifetime, but given the reality of race relations in this country, which remain unresolved, I believe an attorney general must demonstrate real leadership in this area. I want someone in that position who will make vigorous enforcement of civil rights a very high priority.

Patrick Leahy

The single most important issue that pushed me to run for public office was civil rights. My first job as a lawyer in 1968 was as a public defender in the city of Wilmington.

Patrick Leahy

I ended up representing a lot of the guys I lifeguarded as a teenager. . .guys who grew up in the public housing area over on the city's east side known as "The Bucket." As the name implies, it was a rough area.

Patrick Leahy

And there weren't a whole lot of cops on the Wilmington police force with the same color skin as the guys I was defending.

Patrick Leahy

In 1968, when I graduated law school and became a public defender, Wilmington, like lots of cities, was racially divided. There were national guard troops on the streets.

Patrick Leahy

I knew I couldn't change the world, or even what was happening in "The Bucket," but I thought I could make a difference, and I hope I have.

Patrick Leahy

But when I look out my Senate office in Wilmington, I look out past downtown and see "The Bucket," and I know we have a lot of unfinished business.

Patrick Leahy

So, Mr. Chairman, thank you for the opportunity to share with this committee my views about what I believe is at stake in these hearings.

Patrick Leahy

I will want to ask specific questions regarding how Senator Ashcroft views the role of Attorney General in the context of leading the fight to ensure that civil rights laws are vigorously enforced. We have come too far as a nation to ignore these issues.

Patrick Leahy

In closing, let me add one final comment in reply to those who suggest it is inappropriate to raise substantive issues, or to discuss philosophical views during the judiciary committee's scrutiny of this nominee.

Patrick Leahy

John Ashcroft has devoted himself for the past quarter century to public service. I assume his motivation to run for office was the same as mine ...he wanted to make a difference.

Patrick Leahy

I know he is proud of his record, and so, evidently, is the president-elect. Let us not pretend the nomination of John Ashcroft to be the next Attorney General is for any other reason than because he has strongly held views -- one might even say he has a clearly defined political ideology -- that would govern his actions in that highly sensitive office.

Patrick Leahy

I believe it is disingenuous to suggest John's record ought not be reviewed, discussed and debated. I'm pretty certain John is prepared for that discussion, and I look forward to hearing his views.

Patrick Leahy

Again, Mr. Chairman, thank you very much.

Patrick Leahy

We will turn to my good friend from South Carolina, Senator Thurmond.

Patrick Leahy

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE

J. Thurmond

Mr. Chairman, I am very pleased that President-elect Bush has chosen John Ashcroft to serve as his Attorney General.

J. Thurmond

J. Thurmond

Senator Ashcroft is one of the most qualified people selected for this position in many years. He served two terms as Attorney General of Missouri, rising to become the leader of the National Association of Attorneys General. He was then elected Governor of Missouri, also serving for two terms, and rising to chair the National Governors' Association. I would also note that he has a fine wife and family.

J. Thurmond

Most recently, Senator Ashcroft has been an effective leader in the Senate with a record of legislative accomplishments. For example, he was instrumental in passing a methamphetamine bill to help keep drugs out of the hands of children. Also, he worked in a bipartisan manner with Democrats to support COPS program funding for law enforcement.

J. Thurmond

In the Senate, his job was to make the laws, but as Attorney General, his job will be to enforce the laws. It is clear that he understands that people in different positions have different roles because he has expressed concerns about Federal judges who do not understand the separation of powers. I am confident that as Attorney General he will enforce all the laws to the best of his ability, whether he helped enact them or not.

J. Thurmond

I hope that these hearings will not be about whether the nominee agrees with each Senator on every issue. After all, he is the President's choice, and the President makes the ultimate policy decisions. The question should be whether he is qualified and will enforce the laws. The answer is clearly yes.

J. Thurmond

Twenty years ago, I recommended him to be Attorney General for President Ronald Reagan and would like to place that letter into the record.

Patrick Leahy

Without objection.

J. Thurmond

And I would like for that to appear at the end of my statement.

Patrick Leahy

Without objection.

J. Thurmond

I recognized his abilities then and in the passing years while he has served as Governor and Senator has always reinforced my belief he would have made a fine Attorney General in 1981. He will make an outstanding Attorney General in 2001.

J. Thurmond

Mr. Edwin Meese III Office of the President-Elect 1726 M Street, NW Washington, D.C. 20036 Dear Ed: Among the more important appointments that President-Elect Reagan soon will make is that of Attorney General of the United States. In this regard, I want to bring to your attention The Honorable John Ashcroft, presently Attorney General of the State of Missouri.

J. Thurmond

J. Thurmond

John Ashcroft was elected the 38th Attorney General of Missouri in 1976. He was just reelected to another term in that office, demonstrating the trust that the people of Missouri have in this very bright, very dedicated young man.

J. Thurmond

I first met John Ascroft in 1976. At that time, I was immediately impressed with him. More recently, as I traveled around the country speaking on behalf of Governor Reagan, I had the pleasure of seeing John again. In fact, he introduced me on one such visit to Missouri to attend a Reagan-Bush rally.

J. Thurmond

I consider John Ashcroft to be one of our more promising young Republican leaders and believe that he represents the kind of young but experienced talent that could be used well in the Reagan Administration in the post of Attorney General.

J. Thurmond

I am submitting a packet of informational materials on John. I hope that you will review them carefully and that you will conclude, as I have, that John deserves to be at the top of your list of nominees for the post of Attorney General.

J. Thurmond

If I can provide other, additional materials of assistance to you in this regard, please let me know.

J. Thurmond

With kindest personal regards and best wishes, Sincerely, Strom Thurmond Chairman Leahy. Thank you, Senator Thurmond. We will put into the record a statement by Senator Biden, who, as I said, is at Senator Cranston's funeral, and we will turn to the distinguished Senator from Wisconsin, Senator Kohl.

Herb Kohl

Senator Ashcroft, welcome back to this Committee. Based upon what I know of your record thus far, I could not vote for you to be a Supreme Court Justice, but this is different. As I have said to previous nominees for Attorney General, when considering Cabinet nominations, I approach the process prepared to give deference to the President's choice. The President is entitled to surround himself with the people he trusts.

Herb Kohl

Herb Kohl

This deference, however, does not rise to the level of blind acceptance, and so, Senator Ashcroft, you have a responsibility to convince this panel and the American people that your views will not interfere with the administration of justice. Laws are administered and interpreted by people. You have strong convictions. You often wear them on your sleeve, and you take great pride in your convictions. You certainly are not to be faulted for this.

Herb Kohl

But it is not credible to say that you or anyone can just administer the law like a robot as if the law is not subject to feelings or strong convictions. It is up to you to explain to us why your convictions will not permeate or dominate or even overwhelm the Department of Justice.

Herb Kohl

Remember, the Attorney General must be a role model and not a lightning rod for certain causes. You have been passionate about many issues, civil rights, abortion, gun safety, and the environment, to cite just a few, but there must be no doubt in the minds of Americans that you will fairly enforce the law. The Attorney General must vigorously advocate for all Americans and, most particularly, protect those who cannot defend themselves.

Herb Kohl

Your many years as a politician make some people wonder whether you are prepared to dispassionately administer the law. Surely, you understand that many of the positions you have taken are unpopular with some members of this Committee. You shouldn't be condemned for disagreeing with people, but, rather, you must convince the American people that you will enforce the laws of the land in a way that will make us proud and will make us feel that it is justice that is certainly being done.

Herb Kohl

I have enjoyed working with you as a colleague, and I look forward to this hearing and your answers to our questions.

Herb Kohl

Patrick Leahy

I turn to the distinguished senior Senator from Iowa, Senator Grassley.

Patrick Leahy

Patrick Leahy

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE

Chuck Grassley

Thank you, Mr. Chairman. I am pleased to welcome Senator John Ashcroft back to the Committee today. I know him from working with him to be a man of integrity and also a person who loves America.

Chuck Grassley

I have been privileged to serve with John here in the Senate and on the Judiciary Committee for the past 6 years. During this time, I have come to respect John's legal abilities and his keen insight into public policy.

Chuck Grassley

John shares my concern about crime and has worked hard in the war against drugs. He has helped to increase funding for local law enforcement and pushed for tougher sentences for criminals. John is also extremely concerned about the victims of crimes, having signed into law Missouri's Victims Bill of Rights when he was Governor of that State.

Chuck Grassley

John also co-sponsored the Violence Against Women's Act when he was here in the Senate.

Chuck Grassley

Now, John and I come from States where agricultural issues are very important, and we have had a number of discussions about how to address the myriad of problems that are facing family farmers today. He is concerned about ensuring competitive markets and a level playing field for farmers and independent producers. Based on my experience with Senator Ashcroft's work here in the Senate, I know that he is committed to doing what is right for the family farmer.

Chuck Grassley

John Ashcroft is a man of the law. He is eminently qualified to serve as this Nation's Attorney General. His background as Governor and Attorney General of Missouri are some of the strongest qualifications that I have seen for this job. I believe that he will vigorously enforce all of our Nation's laws. I believe that Senator Ashcroft will uphold the rule of law for all Americans which will be a refreshing change from the way things were done in the present administration where the Justice Department was more of a defense counsel for the President than the Nation's chief law enforcer. John Ashcroft's integrity, then, will be a breath of fresh air.

Chuck Grassley

I do want to make a comment about the mob of extremists who have hit the air waves and are trying to intimidate Members of the Senate into voting against Senator Ashcroft. I hope that my colleagues have the intestinal fortitude to stand up to these extremist accusations. It is remarkable that accusations of bias and racism have increased to a roaring crescendo now that John Ashcroft has come up for confirmation because, if John Ashcroft is so bad, then why did the people of Missouri elect him Missouri Attorney General, Governor, and Senator? Would the majority of Missouri citizens support such a biased and extreme man to serve and represent them for well over two decades? I don't think so. Would the National Association of Attorneys General and the National Governors' Association, two national associations representing both Republican and Democratic Attorneys General and Governors, name such a biased man to lead their organization? I don't think so, but the smear goes on.

Chuck Grassley

I, for one, will make my decision based on facts, not innuendo and rumor and spin. I will not let special interest groups with an agenda far out of the mainstream hijack the Judiciary Committee. John Ashcroft is a man of great character, integrity, and trust, all values which are absolutely necessary for public service.

Chuck Grassley

He is an excellent lawyer, committed to enforcing all the laws. Above all, I know that John Ashcroft to be a man concerned about the well-being of our country and committed to doing what is right for all Americans. I believe John Ashcroft will be an excellent Attorney General, and at this point, I see absolutely no legitimate reason why he should not be confirmed.

Chuck Grassley

I yield.

Patrick Leahy

I thank the Senator.

Patrick Leahy

I should just note for the record, Senator Hatch had expressed a wish that we would follow a procedure in which we would only hear from the nominee, or the hearing would take at most 2 days. Our Committee hearing has been a little bit more varied than that.

Patrick Leahy

I would note that when a Democratic President nominated Griffin Bell in a Democratic-controlled Senate, we had a hearing for 7 days and we heard from 26 witnesses.

Patrick Leahy

When President Reagan nominated Ed Meese and there was a Republican-controlled Senate, the hearings were in two parts. The first was 4 days with 31 witnesses. The second part was 3 days with 17 witnesses.

Patrick Leahy

With President Clinton, the hearing for his first nominee, Ms. Baird, was for 2 days. There were going to be a number of outside witnesses, but, of course, the nomination was withdrawn.

Patrick Leahy

Having said that, as I have told the distinguished Senator, my good friend from Utah, that if he has witnesses that he wants heard, of course, they will be heard. There will be no unnecessary delays.

Patrick Leahy

I would turn now to the distinguished --

Orrin G. Hatch

If the Senator would yield for just one comment on that?

Patrick Leahy

In the last four Attorneys General, we had one day for Richard Thornburgh, we had 2 days for Attorney General William Barr, we had 2 days for Janet Reno, and I might mention she was the sole witness, Barr was his sole witness, other than the introducers, and I think Dick Thornburgh was his sole witness.

Orrin G. Hatch

Orrin G. Hatch

I might add that I can remember when Janet Reno came up, and I had every special interest group on the right wanting to oppose her. I refused to allow that, and we took their statements and paid attention to it, but I didn't do what we are doing here today.

Orrin G. Hatch

Now, you have the right to make this decision. All I am saying is that I want to point out that the last three or four didn't go more than 2 days.

Patrick Leahy

Well, I notice among our --

Orrin G. Hatch

And they were the sole witnesses.

Orrin G. Hatch

Chairman Leahy [continuing]. List of left-wing witnesses, Heritage Foundation and a few like that, I suspect --

Orrin G. Hatch

Well, for Meese, two conservatives, that is true, way back when.

Patrick Leahy

I suspect, Senator Hatch, that you are going to have all the witnesses you want, but I would also note, as I said, when the Democrats were in control of the Senate with a Democratic President, it did take us 7 days and 26 witnesses. These are my seminal hearings, you see, Senator Hatch. It is the influence of your party in taking 4 days, 31 witnesses.

Patrick Leahy

Anyway, moving along --

Orrin G. Hatch

Just one more point.

Orrin G. Hatch

Chairman Leahy [continuing]. Can we hear from the distinguished Senator --

Orrin G. Hatch

Mr. Chairman, just one more point of privilege.

Patrick Leahy

I am trying to speed this thing up.

Orrin G. Hatch

Well, we know that J.C. Watts asked to testify, and he is not on the Members one, and we would like to have Hon. Kenneth Hulshof testify on the same panel as Hon. Ronnie White because he can --

Patrick Leahy

He is on the Members panel.

Orrin G. Hatch

He was the prosecutor and one of the cases --

Patrick Leahy

He is on a Members panel.

Patrick Leahy

Senator Hatch [continuing]. And we would like him to be on that panel because then it would be fair because then he can explain what happened.

Patrick Leahy

Well, Orrin, let's go on with the --

Orrin G. Hatch

Well, I hope you will give consideration to that because it would be highly unfair if you don't.

Patrick Leahy

Well, the difficult thing is, as you know, we sent you over our list of witnesses and then we waited and waited and waited for days to hear back from you.

Orrin G. Hatch

I always waited for yours as well.

Patrick Leahy

The distinguished and highly competent senior Senator from California.

Dianne Feinstein

Mr. Chairman, I believe that the people of this Nation deserve an Attorney General who will be honest, strong, and fair, whose integrity is beyond question and who will vigorously protect the rights of every American under law.

Dianne Feinstein

Dianne Feinstein

In my meeting with Senator Ashcroft, I assured him that I would keep an open mind and do everything I possibly could to see to it that he got a full and fair hearing, and I believe he is going to get just that. So I have not yet taken a position on whether I would or would not support his nomination to be Attorney General of the United States.

Dianne Feinstein

But Mr. Ashcroft's past positions on civil rights, on human rights, on segregation, on affirmative action, on a woman's right to choose, on gun laws are very different from my own.

Dianne Feinstein

All of the above areas are today covered by law. For civil rights, we have the Civil Rights Act and Title VII. For a woman's right to choose, the United States Supreme Court has adjudicated Roe v. Wade. For gun control, the ban on assault weapons which I had something to do with, the National Firearms Act and the Brady bill are all laws of our land.

Dianne Feinstein

We all know Senator Ashcroft as an independent thinker, as a strong advocate for his beliefs. Many of us on this Committee have worked with him on various pieces of legislation, I, for one, on methamphetamine, and he has been gracious, true to his word, and a very good person with whom to work.

Dianne Feinstein

For the past 6 years as Senator and before that as Governor, John Ashcroft served as a representative of the people of Missouri. This advocacy was both appropriate and strong-minded, but the Attorney General of the United States must be prepared to use the full force and authority of that position to vigorously enforce all laws, regardless of personal belief.

Dianne Feinstein

It is not enough, for example, for an Attorney General to say he will enforce the laws and then appoint a Solicitor General whose goal will be to undercut them, and all of this raises in my mind serious questions.

Dianne Feinstein

Can we expect, for example, an unabashed and vocal opponent of reproductive rights for women to vigorously enforce laws that protect a woman's right to choose? Will Senator Ashcroft continue to vigorously enforce the Freedom of Access to Clinic Entrances Act and retain the National Task Force on Violence Against Health Care Providers? Would justice under his leadership provide a vigorous defense of Roe v. Wade? Will he fully enforce and support the ban on assault weapons and large- capacity ammunition clips and the Brady law? Would he be steadfast in opposition to allowing violent felons to obtain guns simply by applying for this right to be restored? Would he unwaveringly and vigorously use the Office of Attorney General to protect Americans from violent hate crimes and other civil rights violations? Would he ensure that no citizen's right to vote is compromised by an illegal act? These are questions that don't relate to character or integrity, but they are also questions that must be answered.

Dianne Feinstein

Today, we begin the process of ensuring that our system of laws will be enforced with moral authority and fair effectiveness. So I look forward to asking some tough questions, hopefully receiving some good answers, and giving Senator Ashcroft the full and fair hearing.

Dianne Feinstein

Patrick Leahy

I turn now to the distinguished senior Senator from Pennsylvania, Senator Specter.

Patrick Leahy

Patrick Leahy

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE

Arlen Specter

From the opening statements, it is perfectly apparent that the battle lines are pretty well drawn. It is pretty hard to even agree on a schedule. Fortunately, the conference room, hearing room table is set in advance, so there is no dispute about that, and for a Senate which has talked so much about bipartisanship, we have not gotten off to a very good start on the first issue which we are confronting.

Arlen Specter

Arlen Specter

It would be disingenuous for any of us to say that we don't have views about former Senator John Ashcroft. Having worked with him for 6 years, including extensive work on this Committee, I had thought that I knew John Ashcroft pretty well until I started to read about him in the papers and listen to the electronic media seriously.

Arlen Specter

We know about his strong ideological views, and the critical factor, obviously, is whether John Ashcroft has the ability and the willingness and the temperament to separate his own personal views from law enforcement, and there is a big difference.

Arlen Specter

On a lesser scale, I served as a prosecuting attorney, D.A. of Philadelphia. So I know what it is like to enforce laws that I don't particularly agree with, and I think it is fair and this Committee has a constitutional responsibility to find out from John Ashcroft that he will give assurances to the American people on critical issues.

Arlen Specter

Now, the matter has already been raised about the right to choose and access to abortion clinics, and I think it is significant that Senator Ashcroft voted on a bankruptcy issue counter to those who would try to stop abortions. The issue was whether somebody who had a judgment in a civil case would be discharged in bankruptcy, which is the general rule, without getting too deeply involved. John Ashcroft voted that they should not be discharged in bankruptcy if the judgment came from blocking an abortion clinic.

Arlen Specter

There are legitimate concerns about the First Amendment as to Attorney General John Ashcroft's views if he is confirmed enforcing the separation of church and State.

Arlen Specter

There is no doubt about the latitude for a President's Cabinet for, in effect, the President's lawyer, although the Attorney General is the lawyer of the American people as well, and there is also no doubt about the enormous difference between a Federal judgeship, say a Supreme Court judgeship where ideology would play a very different role than would the Nation's chief law enforcement officer.

Arlen Specter

We are under a microscope, as we all know, ladies and gentlemen, and I hope that we can put partisanship aside. There is no doubt that if it becomes a partisan issue that this nomination can be blocked by a refusal to cutoff debate, and feelings are running very, very high, lots of calls on both sides, great intensity. I have not seen this much intensity for more than a decade, not that we haven't had it in this room, but not for more than a decade, and if the passions run high enough and partisanship takes over, it will not be in the interest of the American people.

Arlen Specter

Patrick Leahy

The distinguished Senator from Wisconsin, Senator Feingold.

Patrick Leahy

Patrick Leahy

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE

Russell Feingold

Let me begin by touching on two general principles to guide our consideration of Cabinet nominations.

Russell Feingold

Russell Feingold

The first principle is that the Constitution imposes the duty on the President to faithfully execute the laws, and he is expected to propose new laws. To carry out these duties, the President needs advisors and policymakers in the Cabinet to advance the President's program. Over the history of such nominations, the Senate, with rare exceptions, has given the President broad leeway in choosing subordinates.

Russell Feingold

The second principle that I think should govern nominations is what we might call the political golden rule. We, as Democrats, should, if at all possible, do unto the Republicans as we would have the Republicans do unto us. A Democratic President ought to be able to appoint to the Cabinet principled people of strong, progressive, or even liberal ideology, and, therefore, a Republican President ought to be able to appoint people of strong conservative ideology.

Russell Feingold

Now, whether doing so is good politics or, more importantly, is wise in light of a promise to unify the Nation after a very close election is a very important issue for a sustained national debate, but that is not at the core of our responsibility in this body to advise and consent on Cabinet nominations.

Russell Feingold

As to the case of former Senator John Ashcroft for Attorney General, I think John Ashcroft is highly qualified from the points of view of competence and experience. During the past 6 years, I have had the opportunity to get to know John Ashcroft as a colleague. I have had little contact with him outside the Senate floor or the Committee rooms.

Russell Feingold

In one of those very few encounters, I and Senator Paul Wellstone were walking outside the Capitol, and John Ashcroft offered us a short ride to our homes. Let me tell you on the record, it should give at least some comfort that he was not nominated for Secretary of Transportation. It was a kind gesture, but a wild, somewhat hair-raising, ride.

Russell Feingold

Advice and consent, however, is not about who is a nice guy or collegiality, and in all seriousness, this is a very painful nomination for many Americans in light of John Ashcroft's views and votes on many issues, ranging from the right to choose, to gay and lesbian rights, to affirmative action, the environment, to others. And I am also alarmed by some of these views.

Russell Feingold

Yet, my own direct experience with John Ashcroft has been positive in the sense that he has been much more open to my strong feelings on issues such as the outrageous practice of racial profiling than almost all of his Republican colleagues on this Committee and in the Senate as a whole. He and his staff not only permitted, but assisted in a significant and powerful hearing on racial profiling in the Constitution Subcommittee which John Ashcroft and I led at the time.

Russell Feingold

Nonetheless, although that experience is certainly relevant to my consideration, I want the individuals in groups that have raised concerns about the nominations to know this. I understand and agree that that experience should be one, and only one, of many other more important factors to be considered in judging the fitness of this nominee as Attorney General.

Russell Feingold

In fact, as I consider the merits of this nomination, I can't help but take this moment to express my concern about the attitude and approach that the former and then future Republican majority in the Senate has taken since 1996 in considering executive appointments and judicial appointments.

Russell Feingold

The previous majority -- and, yes, sometimes led by John Ashcroft -- seemed never to accept the legitimacy of President Clinton's 1996 victory. Instead, in my view, they unfairly blocked many legitimate qualified appointees such as Bill Lann Lee, Ronnie White, and James Hormel. I think this is wrong, and even Chief Justice Rehnquist blamed the understaffing of the Federal judiciary on this questionable approach. This is the very partisanship with which the American people have grown so frustrated and dismayed.

Russell Feingold

So it is not easy for me to tell those who have fought so hard for Clinton and then for Gore that we should follow the golden rule, do the right thing, and not use a similar approach during the next 4 years. That is my inclination, but I openly wonder at what point do we have to draw the line, given the previous majority's refusal to accord the Democrats the very deference that they, the Republicans, now seek.

Russell Feingold

Let me also commend the individuals and groups, with whom I agree on virtually all of the key issues, for promoting a significant national discussion on this nomination. Despite criticism, you are right to intensely scrutinize this nomination. Regardless of the outcome, this process will reap long-term benefits as these legitimate and heartfelt concerns are heard by all Senators and the American people.

Russell Feingold

But, in the end, Mr. Chairman, let me also repeat my conviction as this hearing begins that voting records and conservative ideology are not a sufficient basis to reject a Cabinet nominee, even for Attorney General. I say this as a progressive Democrat from Wisconsin who hopes that the William O. Douglasses and Ramsey Clarks of the future will be appointed to executive positions and Cabinets and not be rejected on that basis along. In other words, Mr. Chairman, being in the middle of the road is not a requirement for a Cabinet position.

Russell Feingold

Patrick Leahy

I will turn to the distinguished Senator from Arizona, Senator Kyl.

Patrick Leahy

Jon Kyl

I think it is appropriate, first, that we welcome our colleague back to this Committee, and I do that with great fondness, and also his wife, Janet, who is here.

Jon Kyl

Jon Kyl

Second, that we focus a little bit on the standard for judging nominees of the President to Cabinet positions, and both Senators Feinstein and Feingold have, I think, spoken eloquently to that point here and I would like to in a moment as well.

Jon Kyl

The last Cabinet Secretary we had a chance to vote on was the Treasury Secretary, Larry Summers, and I remember at the time, he had spoken out very strongly against tax cuts, and I am very much for tax cuts.

Jon Kyl

I thought some of the things he said were relatively outrageous in that regard, but I voted to confirm him as did, I think, every one of my colleagues because of the standard which I think has historically been applied.

Jon Kyl

I would like to quote an eloquent statement of that standard by a member of this Committee in connection with another nominee a few years ago. Our colleague at that time said, "The Senate has a responsibility to advise and consent on Department of Justice and other executive branch nominees, and we must always take our advice and consent responsibilities seriously because they are among the most sacred, but I think most Senators will agree that the standard we apply in the case of executive branch appointments is not as stringent as that for judicial nominees. The President should get to pick his own team. Unless the nominee isn't competent or some other major ethical or investigative problem arises in the course of our carrying out our duties, then the President gets the benefit of the doubt. There is no doubt about this nominee's qualifications or integrity. This is not a lifetime appointment to the judicial branch of Government. President Clinton should be given latitude in naming executive branch appointees, people to whom he will turn for advice," and our colleague went on to say with respect to this particular nominee, "Yes, he has advised and spoken out about high-profile constitutional issues of the day. I would hope that an accomplished legal scholar would not shrink away from public positions on controversial issues as it appears his opponents would prefer. One can question Professor Dellinger's positions and beliefs, but not his competence and legal abilities." The eloquence, of course, is easily recognized as that of the Chairman, Senator Leahy of Vermont, speaking on behalf of Walter Dellinger who was confirmed for Assistant Attorney General for the Office of Legal Counsel in which he acquitted himself admirably.

Jon Kyl

I think that is the standard, and when applying it to John Ashcroft, there can be no doubt that he should be confirmed.

Jon Kyl

Others have spoken of his qualifications. Perhaps it would be of interest to note that he is the first Attorney General nominee in the history of the United States that has served as State Attorney General, Governor, and U.S. Senator. Only 6 of the 67 former U.S. Attorneys General had even some of Senator Ashcroft's experience. He led the National Association of Attorneys General. He was Chairman of the National Governors' Association, as well as Chairman of the Education Commission of the States, and as all of my colleagues know, he served on this Committee and chaired the Subcommittee on the Constitution.

Jon Kyl

He has the intelligence, a degree from Yale and a prestigious law degree from the University of Chicago, and, of course, I think no one has questioned his integrity.

Jon Kyl

Now, there have been questions raised. I think if my colleagues have an open mind, as both Senator Feinstein and Senator Feingold noted, Senator Ashcroft can answer many of these questions. I would just note, for example, that with respect to the charge that he opposes virtually any gun control, you can be assured that that is simply incorrect, and he will make that clear.

Jon Kyl

I think at the end of the day, one thing is very clear. There have been two interesting assertions made with respect to Senator Ashcroft by opponents. The first is that he has very strong convictions, faith, and belief in God. Indeed, he does.

Jon Kyl

The second is that he may not enforce the law and the Constitution. Well, the second assertion is at odds with the first. You can be assured that when John Ashcroft places his hand on the Bible and swears to uphold the laws and the Constitution that he will do that on behalf of the people of the United States of America.

Patrick Leahy

I would note, as my friend from Arizona has quoted me, just so people understand the setting for that vote on Walter Dellinger, this was a matter that had been delayed by secret holds on the Republican side for months, and I was arguing we should vote him up or vote him down. He was not the Attorney General. He would take orders from the Attorney General, something that makes a big difference, but what I wanted was a vote up or down, and when the secret holds were released, he was confirmed.

Patrick Leahy

I would turn to the distinguished senior Senator from New York.

Chuck Schumer

Thank you, Mr. Chairman, and welcome, Senator Ashcroft.

Chuck Schumer

I know we have our differences, but I want to thank you for being open and honest with us in this process and making yourself available to all of our questions. In return, let me be straight with you. As you know, I have misgivings about your nomination to be Attorney General. I haven't come to this conclusion easily. Unquestionably, you deserve a full and fair hearing and a real chance to tell your side of the story.

Chuck Schumer

Moreover, I believe we owe a significant level of deference to the President in his choices for Cabinet. The President does not have carte blanche, but usually the presumption at least begins in favor of his nominees. I will support the vast majority of the President's -- the President-elect's nominees even though I don't agree with them on many issues.

Chuck Schumer

I know that a number of my Democratic colleagues initially voiced some support for your nomination because of this presumption, but I think now that the record has been more closely reviewed, the burden of proof has shifted back to you.

Chuck Schumer

When we met privately last week, I asked Senator Ashcroft what role ideology should play in our confirmation process. I meant that question sincerely. It is a difficult issue that many of us are wrestling with.

Chuck Schumer

A few years ago, Senator Ashcroft opposed the nomination of Bill Lan Lee to be the Assistant Attorney General for the Civil Rights Division at DOJ. At the time, this is what he said about Lee, "He has obviously the incredibly strong capacities to be an advocate, but I think his pursuit of specific objectives that are important to him limit his capacity to have a balanced view of making judgments that will be necessary for the person who runs that division." Looking back now, I think Senator Ashcroft was correct, at least when it comes to evaluating nominees who have an ideological bent that is significantly outside the mainstream.

Chuck Schumer

In other words, the issue should be whether a nominee's fervent beliefs and views are so one-sided that we lose faith, that the American people lose faith in that person's ability to carefully evaluate, abide by, and control the law, the law as it is, not as he might like it to be.

Chuck Schumer

This is even more the case for an Attorney General nominee because the position requires the utmost in balanced judgment, clarity of thought, sound use of discretion, and cautious decisionmaking.

Chuck Schumer

The question I hope these hearings will help us to answer is whether John Ashcroft's passionate advocacy of his deeply held beliefs over the past 25 years will limit his capacity to have the balanced world view necessary for an Attorney General. This is a man who has dedicated his career to eliminating a woman's right to choose. He believes that abortion is murder, that it is wrong, and that it must be stopped. He has led the charge to enact new hurdles and restrictions against choice.

Chuck Schumer

Senator, you have told me you will enforce the law, but your saying so isn't enough. When your Solicitor General gets the chance to tell the Supreme Court to follow Roe v. Wade, will you demur? When the HHS Secretary calls you for an analysis of new regulations restricting the right to choose, will your analysis be based solely on the current state of law? When you allocate the billions of dollars that DOJ receives, how much will go to protecting the clinics where you think murder is being committed?

Chuck Schumer

Senator Ashcroft, as much as I respect you as a person and your faith, your past causes me grave concern on these issues, and like Bill Lann Lee, when you became the Attorney General of Missouri, you did not advocate, you did not relinquish your role as a passionate advocate. You sued nurses who dispensed contraception and continued litigating against them for years, despite being told by every court you came before that you were wrong. You sued the National Organization of Women under the antitrust laws to muzzle their attempt to pass the Equal Rights Amendment. Will you now use as United States Attorney General that office to continue crusading against those you passionately and fervently disagree with?

Chuck Schumer

Senator Ashcroft, the issue boils down to this. When you have been such a zealous and impassioned advocate for so long, how do you just turn it off? This may be an impossible task.

Chuck Schumer

I would say to my friend from Wisconsin, this goes beyond ideology. It goes directly to and is unique to the Cabinet position of Attorney General, the chief law enforcement officer of the land.

Chuck Schumer

Senator Ashcroft has been a leading advocate against gun control. He has fought to kill legislation that would have made it easier to catch illegal gunrunners. He has vociferously opposed even child safety locks and the assault weapons ban. When the U.S. Attorney from New York or Wisconsin calls him and pleads for more resources to prosecute gunrunners, will this be a priority?

Chuck Schumer

For many years in Missouri, Senator Ashcroft was a leading advocate against desegregation. He has been on the forefront of arguing against gay rights and for lowering barriers between church and State.

Chuck Schumer

In short, John Ashcroft has for decades now been knee-deep in many of the most significant, yet divisive issues in our country. What this hearing must get at is whether he can now step outside this ideological fray, set his advocacy to one side, and become the balanced decisionmaker with an unclouded vision of the law that this country deserves as its Attorney General.

Chuck Schumer

The distinguished Senator from Ohio, Senator DeWine.

Patrick Leahy

Patrick Leahy

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF OHIO Senator DeWine. Mr. Chairman, thank you very much.

Patrick Leahy

We are now at a place in our Nation's history where sometimes it seems as if there is a direct relationship between the qualifications, the experience, the length of service of a particular nominee, and how contentious and how difficult the nomination process is.

Patrick Leahy

Today, we have a nominee who has extensive experience, who is extremely well qualified, Assistant Attorney General of Missouri, 8 years as Attorney General, 8 years as Governor, 6 years as U.S. Senator, a member of this Judiciary Committee. Therefore, I guess it should come as no surprise that he has taken positions, that he has taken positions on many, many issues. He has cast thousands of votes, and he has a long track record.

Patrick Leahy

Nor, frankly, should it come as a surprise that a record of a quarter of a century would generate criticism. I think we would worry if he hadn't taken tough positions. I think we would worry if after a quarter of a century, there wasn't something controversial about what he had said or what he had done.

Patrick Leahy

I intend during this hearing to listen. My personal experience with John Ashcroft over the last 6 years convinces me that he is a man of integrity, he is a man of honor, he is a man of courage.

Patrick Leahy

The position of Attorney General is unique, as my colleagues have already pointed out, among members of the United States Cabinet. His is in many respects the most difficult job because he is the person who must by statute give advice to the President of the United States, but he is also, in essence, the chief law enforcement officer of the country.

Patrick Leahy

Ultimately, the tenure of John Ashcroft as Attorney General or the tenure of any Attorney General will be judged not on any one particular decision that he will make, not on any one particular policy that he will take. Ultimately, this Attorney General and any Attorney General will be judged on how he is perceived, how he is perceived by the public on much more essential issues and much more essential questions. The question of whether or not he was a man of integrity, whether or not he was a man of honesty, whether or not he had the courage to tell the President yes when it was right to tell him yes and also to tell him no if that was what he needed to tell him.

Patrick Leahy

I am going to listen, but I am convinced, based upon what I have heard so far and what I know about John Ashcroft, that after he has been Attorney General, the people will look up and say, "Yes, this was a man of integrity. We did not always agree with him. We may have disagreed with him on some issues. Maybe he wasn't always right, but he gained the respect of the American people and he brought honor and integrity to the office."

Patrick Leahy

Just to let people know where we are, we have four more Senators to speak, and we have been trying to stay within the 3 to 4 minutes each. What I will do at the end of these four, we will take, as I have told Senator Ashcroft and Senator Bond and Senator Hutchison and others, a short break just so we can recoup and then come back and have the introductions and the opening statements.

Patrick Leahy

Patrick Leahy

The distinguished Senator from Illinois, Senator Durbin.

Patrick Leahy

STATE OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE STATE

Dick Durbin

It is good to be back on the Committee, and it is interesting that this would be the kickoff for my return to the Committee, a hearing of this consequence.

Dick Durbin

Patrick Leahy

We like you senior Senators over here.

Dick Durbin

Yes. Well, thank you.

Dick Durbin

I agree wholeheartedly with the statement made by Senator Hatch relative to the nature of this hearing and this investigation.

Dick Durbin

John Ashcroft, this should have nothing to do with your personal life or family life. As some have said, the politics of personal destruction should come to an end, and I don't believe this hearing will engage in any questions relative to that, nor should it, for good reason. You have a fine family that you are very proud of, and we have plenty to concern ourselves with relative to the issues before us.

Dick Durbin

Senator Ashcroft, on the day of December 22nd, when President-elect George Bush nominated you to be Attorney General, you made a statement, a brief statement, which many of us have seen, and said at one point, and I quote, "President- elect Bush, you have my word that I will administer the Department of Justice with integrity. I will advise your administration with integrity, and I will enforce the laws of the United States of America with integrity."

Dick Durbin

"Integrity," by a common definition, is an unwavering commitment to a set of values. There is no quarrel that your public life shows a commitment to a set of values. There is no doubt that your service as Attorney General will be guided by a set of values. The question before this Committee is what will those values be. Will they be the values embodied in the laws of the land, many of which you have publicly opposed, a woman's right to choose, sensible gun control, civil rights laws, human rights protections? Will they be the values of President-elect Bush and Vice President-elect Cheney, many of which differ from your own public record? Will they be your values, the values in your heart which have guided you throughout your public life?

Dick Durbin

The role of the Attorney General is described in the definition of the Department of Justice, first, to enforce the law, and that is fairly obvious, and in conclusion, it says to ensure "the fair and impartial administration of justice for all Americans." Can you guarantee fair and impartial administration of justice if you believe some Americans are undeserving or engaged in conduct which you find morally objectionable?

Dick Durbin

As sound as America's principles may be, we must concede we are not a perfect people. We have struggled throughout our history with issues of equality for women, African Americans, Hispanics, new Americans, the disabled, people of diverse religious belief, people with different sexual orientation.

Dick Durbin

This last election has left America divided, and I know that the new President has suggested that he wants to unite this great Nation, and I sincerely hope that he can. He knows that his biggest challenge will be to reach out and win the confidence of many who opposed him, families and women and minorities and new Americans and those concerned that his views are outside the mainstream of American values, and no office has a more direct impact on the lives and fortunes of these groups, and all Americans for that matter, than the Office of Attorney General.

Dick Durbin

If minority voters feel disenfranchised by backward election technology and politically biased oversight, it is the Attorney General who must protect their rights.

Dick Durbin

If women feel their reproductive choices, including the right to choose the best family planning for them, is threatened by violent demonstrators, it is the Attorney General who must protect them.

Dick Durbin

If those with different sexual orientation feel the pain of discrimination and threat of bodily harm, it is Attorney General and the Department of Justice who must protect them.

Dick Durbin

Senator Ashcroft, several weeks ago, you and I were on an airplane together, you with your wife and I went alone to the funeral of former Missouri Governor Mel Carnahan. It was a wonderful gesture on your part to be there, considering the fact that you were in the midst of a campaign. It was a funeral service that I will long remember.

Dick Durbin

At the end of that service as I was leaving, someone pointed to me and said, "Senator Durbin, this group over here is the Missouri Supreme Court," and I said, "Is Justice Ronnie White among them?" They said, "Yes. He is the gentleman standing over here."

Dick Durbin

I went over and met him for the first time and introduced myself. I said, "I am Senator Dick Durbin of Illinois, and you are Justice Ronnie White, are you not?" He said, "Yes."

Dick Durbin

Senator Ashcroft, I said to him, "I want to apologize to you for what happened on the floor of the U.S. Senate. That never should have happened." He faced an embarrassment and a humiliation on the floor of the Senate which did not have to happen.

Dick Durbin

If there was a heartfelt belief by the Senators from Missouri that he should not have been a Federal district court judge, it should never have reached that point in time, and it rarely ever does in the history of the U.S. Senate.

Dick Durbin

I have said to you personally, and I will say to you at this hearing, I am going to be asking you a number of questions about that decision and about the process and the way this man was treated. I think that is going to tell me a great deal about your conduct if you become Attorney General.

Dick Durbin

During the course of this hearing, Senator Ashcroft will be given a chance to explain his vision of the office, to reconcile clear conflicts between his public record and the new responsibilities he seeks, and to give us and America a chance to look into his heart. This open, fair hearing is an opportunity which was often denied to many who sought the approval of this Committee, but it is an opportunity which you will have.

Dick Durbin

Thank you, Senator, and we will put Senator Cantwell's statement also in the record. As I said, she is at our former colleague Senator Cranston's funeral.

Patrick Leahy

Patrick Leahy

I share my colleagues' belief that the president has historically been deferred to in his choice of nominees for the Cabinet. Nonetheless, the Constitution entrusts the Senate with providing advice and consent on those nominees and we must take that duty extremely seriously. As members of the Judiciary Committee and the United States Senate, we must ensure that our deference is tempered by consideration of the qualifications of the nominee and his or her willingness to abide by and uphold the laws of the land.

Patrick Leahy

On the first point, Senator Ashcroft, it appears that your background would indicate that you have the credentials for this position. You have devoted many years to public service, including serving as Attorney General of the State of Missouri, as well as Governor and Senator from that state. I am sure that I speak for all of us on the Judiciary Committee when I say that there are no doubts that you have extensive and appropriate experience to fill the position of Attorney General of the United States of America.

Patrick Leahy

My questions will focus on the second point: whether you will faithfully and zealously enforce the laws of our land in the areas of women's reproductive rights, including the prevention and prosecution of clinic violence. I will have questions on your record on enforcing and upholding the civil rights of all Americans. And, as a new Senator from the Pacific Northwest, I hope to determine your intentions on enforcing and upholding laws that protect our clean air and water, our natural resources, and the environment -- all issues that are critically important to my constituents and all Americans.

Patrick Leahy

Along with my colleagues, I believe that each American citizen should feel assured that our Justice Department will defend his or her constitutionally protected rights. During the hearing, I will be interested in learning whether and to what extent you would enforce our laws and protect those rights despite your strong opposition to some of the laws you would be in charge of enforcing.

Patrick Leahy

I look forward to my first hearing as a member of the Judiciary Committee and listening to your answers to our questions.

Patrick Leahy

I would recognize the distinguished Senator from Alabama, Senator Sessions.

Patrick Leahy

Patrick Leahy

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE

Jeff Sessions

I thank the Chairman.

Jeff Sessions

John, welcome to the pit. Those were the words of Alan Simpson, I believe, when Justice Scalia appeared here, and it is not a pleasant place to be. There are effective organized groups. One of the members said there is a seasoned coalition, there is a seasoned group that knows how to tarnish individuals who come before a Committee when they want to. And as Senator DeWine noted, you indeed have a long and distinguished career that includes a lot of litigation and a lot of positions that you have taken that you believed was right, and there is somebody that can complain about a lot of that. And I hope the burden of proof has not shifted. That wouldn't be appropriate. But it would be consistent with what Senator Simpson said in this Committee once, that people are more like -- we are more like prosecutor and accused than a confirmation hearing.

Jeff Sessions

Well, I love the Department of Justice. I spent 15 years in the Department as an Assistant United States Attorney, 12 years as United States Attorney, served five different Attorneys General. I believe in that Department. It is a great Department. It is the Department of Justice. And, frankly, we may have had an Attorney General who was right on some of our colleagues' ideological issues, but I don't think the Department has run well. I think there are some problems there. I think it needs new, vigorous, positive leadership, and as people have described your background, I think you are perfect for that. And I am honored to support you. I don't expect anything to come out that would change my mind. Certainly the things that have come out that I have seen and studied are insignificant differences of opinion that we might have that should not change our view about your qualifications.

Jeff Sessions

The Attorney General is a law enforcer. There is a big difference between a politician and a Senator where we vote on policy and executing policy. To me, I haven't had much difficulty making the switch from prosecutor, professional career, Attorney General in Alabama, to the -- actually, I may have had more problem than you are going to have going back.

Jeff Sessions

But there is a difference, and it is pretty clear in our minds. And I think as an 8-year Attorney General you will not have any problem going back and enforcing the law as written.

Jeff Sessions

I would say this: I was surprised, Senator Specter, that John supported Chuck Schumer's bankruptcy bill. I tried my best to stop that amendment, and didn't know you had voted the other way on that. But it was --

Patrick Leahy

You are going to have plenty of time to let him know what you think about that.

Jeff Sessions

But I don't think the Attorney General is particularly unique in setting policy. HHS people, they set policy about all kinds of contraceptives, very sensitive issues and health issues. There are sensitive issues in labor that the Labor Secretary gets to set. I am not sure the Attorney General gets to set many issues at all, basically just has to carry out the laws that are set.

Jeff Sessions

I do think bipartisanship is important. I support President Bush's commitment to bipartisanship. I am going to try to do better this time. I supported Trent Lott in trying to reach an agreement that we wouldn't be fighting here in the beginning of this session, even though some felt maybe it had gone too far.

Jeff Sessions

We need to work together, and I think this hearing is a bit of a test. The independent groups, hard left that they are, have ever right to speak and advocate and raise questions. But I think this body needs to evaluate it and give John Ashcroft a fair hearing in terms of what was known to him, what were the circumstances when he made these decisions, and not take them out of context and give it a spin that is unfair to him.

Jeff Sessions

All of us have done things that have been taken out of context and twisted about. It could be an honest statement but be a misrepresentation of what is happening.

Jeff Sessions

John has not been an obstructionist here. I have looked at the numbers. He has voted for 95 percent of President Clinton's judicial nominees. He voted for 26 of 17 African American. The only one that was raised, Ronnie White, is the only one he has opposed. And he had a personal and good reason for that, in my view.

Jeff Sessions

He is going to be a champion of prosecution of gun laws. Under this administration, prosecutions have dropped. I have talked to John about it, and he has committed to me that he is going to work to increase the number of people that are prosecuted for violation of gun laws in America, and in my view, that can be done dramatically with no new resources, frankly.

Jeff Sessions

And on Bill Lann Lee, this Committee split on that vote, and Chairman Hatch -- if you would like to read a brilliant address on it, read his speech on the floor about why he opposed Bill Lann Lee. That was not a racial thing. It was a serious discussion about his views about whether or not he would actually follow the Adarand Supreme Court decision. The Adarand case he said he would support, but the way he defined it in our view was not an accurate definition of it. So then he would not be enforcing Adarand if he didn't properly understand Adarand. So that was the basis of our opposition there.

Jeff Sessions

So I would just say this: I believe that John Ashcroft has all the gifts and graces to make a great Attorney General. I believe he will be a great Attorney General. I believe he will serve this country with distinction. I believe this Department will flourish under his leadership. I know he will be responsive to us if we have problems. I know and he knows who the captain of the ship is, and that is the President, at whose pleasure he serves.

Jeff Sessions

I believe in John. I think all of us do. I ask each member of this Committee, listen to the complaints but think about the context, the values he held. Ask yourself if he abused his office or did wrong on any significant matter. I don't think you will find that to have occurred, and I would like to see a very strong vote for John Ashcroft for Attorney General.

Jeff Sessions

I thank the Senator from Alabama and will yield now to my neighbor from New Hampshire, Senator Smith.

Patrick Leahy

Gordon Smith

Thank you very much, Mr. Chairman and, Senator Ashcroft and Janet, welcome, I think.

Gordon Smith

Thomas Paine once said, "These are the times that try men's souls," and then he spoke of the sunshine patriots. And you are not a sunshine patriot. You are willing to stand here and take it. You don't deserve some of the things that have been said about you and will be said about you. And I know it is tough, but there are a lot of us, I think, frankly, on both sides of the debate that appreciate the fact that you are willing to do just that.

Gordon Smith

It is not pleasant for me as a personal friend of yours -- and I will admit that publicly -- to hear terms such as "racism" applied to you, my friend. That is unworthy, those who make the charges, and it is certainly not in the best interest of the political debate in this country.

Gordon Smith

Senator Kohl, I believe, a few moments ago said that the Attorney General of the United States should be a role model. If I could pick a role model for my two sons, I would pick John Ashcroft, and I wouldn't hesitate one moment to do just that. Throughout his career, his entire career I politics, in his own words, he has sought to bring America to its highest and best. He loves his country. He loves Missouri. He loves his family. He loves the law. And he loves the Constitution, and, yes, he loves his God. That is not a disqualifier. That is a qualifier. That is not a divider. That is a uniter.

Gordon Smith

There is a lot of cynicism in this town, and people think there is too much politics in politics. We have heard some of it in the public debate leading up to this hearing. We will hear some of it. We have already heard some of it in the hearing. But John Ashcroft is a guy who is always looking to do what is right.

Gordon Smith

I am reminded -- and I think Senator Durbin alluded to it -- of John Ashcroft coming in to the Republican conference after the sudden and tragic death of Governor Mel Carnahan, his opponent, emotionally talking about that in the confines of that room with only his colleagues there, announcing to all of us that he would suspend his campaign immediately, for at least the next 10 days. While that happened, the other side geared up to defeat him. But John did the right thing. That is the kind of man he is. That is the kind of man he is, so when you hear the criticisms, be reminded of the kind of person that he really is.

Gordon Smith

I have never known him to look at a poll or a focus group to make a decision. He looks to the law. He looks to the Constitution. He looks to the Founding Fathers. America does not need an Attorney General who is concerned about public opinion. Americans want an Attorney General who is concerned about the law and the Constitution, an Attorney General who will not only enforce it but be an aggressive and vociferous advocate for it and the Constitution.

Gordon Smith

President-elect Bush could have picked another person for Attorney General, but he couldn't have picked a better person for Attorney General. There will be witnesses who are going to say that because John Ashcroft is a man of religious faith that he won't enforce the law. On the contrary, I would say that knowing the importance Senator Ashcroft places in his faith, I can't think of anyone else I would place more confident in to support the law.

Gordon Smith

Senator Feingold mentioned a few moments ago that some of the decisions or some of the views that Senator Ashcroft has taken are painful to some on his side. I might also say some of the views that the current Attorney General has taken have been painful on our side. But when he puts his hand on the Bible, as Senator Kyl said, and swears to enforce the law, he means it. He will do it.

Gordon Smith

We are not going to hear much today, except on this side of the table, about the qualifications of Senator John Ashcroft. They have been mentioned a thousand times, and I want to say them again: two-term Missouri Attorney General, head of the National Association of Attorneys General, receiving a commendation for that, two-term Missouri Governor, head of the National Association of Governors, U.S. Senator and former member of this Judiciary Committee. We won't hear a lot about that from the other side because that is not the issue to them.

Gordon Smith

As a matter of fact, John Ashcroft may be the most qualified candidate ever nominated for Attorney General. And, again, we are not going to be focusing on those qualifications from the other side.

Gordon Smith

In 1993, Janet Reno said, "The only reason for the death penalty is vengeance. What I want is to put the bad people away and keep them away." A strong statement from the Attorney General, opposed to the death penalty. But Janet Reno applied the law of the land, which is the death penalty. There is no fear here.

Gordon Smith

In conclusion, President-elect George Bush has chosen a like-minded conservative to serve as his U.S. Attorney General. We should respect that choice, as has been said here. Just as Republicans by a vote of 98-0 confirmed Janet Reno -- and I will say to my colleagues, if it is painful, if I can vote for Janet Reno, you can vote for John Ashcroft.

Gordon Smith

Again, Mr. Chairman, let us set aside the mud-slinging, set aside the rhetoric. This is a decent, honorable man. Let's focus on the qualifications of John Ashcroft to be the next U.S. Attorney General.

Gordon Smith

My friend, they are going to put you down a bumpy road. There is no question about it. But you have got good shock absorbers, and you are bigger than the politics of self- destruction. Handle it well, as I know you will, and the American people, once they know who you are, once they get to know you, they will be with you.

Gordon Smith

I thank the Senator from New Hampshire, and I do wonder if he is feeling badly about voting for Attorney General Reno. At least he has the satisfaction of knowing that while the national crime rate went up for the 12 years before she came there, it went down for the 8 years she was there. So that will give you a chance to point to a very good accomplishment.

Patrick Leahy

Patrick Leahy

Having said that --

Jeff Sessions

It didn't go down all those years. Just a few.

Patrick Leahy

It didn't go down any before.

Jeff Sessions

Yes, it did.

Orrin G. Hatch

Enough said.

Jeff Sessions

I will show you the numbers. I was there.

Patrick Leahy

Well, maybe it went down when you were U.S. Attorney.

Orrin G. Hatch

It is going to go down a heck of lot more under Attorney General Ashcroft, I guarantee you that.

Patrick Leahy

I wish you would stop delaying this, Senator Hatch. We have got to get going with this.

Patrick Leahy

Now I welcome again the distinguished Senator from Kansas, who is a friend to all of us in this body, and we are delighted to have him here in the Committee. Please go ahead.

Patrick Leahy

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE

Sam Brownback

Thank you, Mr. Chairman. And it is a pleasure to join this Committee. I look forward to serving on it on the important issues that come here before this Committee, and this is one of them.

Sam Brownback

John, welcome, and, Janet, delighted to have you folks here. I am looking forward to your confirmation as Attorney General and your serving with distinction in that capacity as you have every place else you have served in your long public career that you have had thus far.

Sam Brownback

As a personal note, you know, they say a true friend is somebody who give you the shirt of their back. My apartment complex I was in in town was in a fire this last year, and I was standing out in the streets with not much else that I got out with. And the Ashcrofts came over and gave me a roof over my head for several days and took me in, and unlike Senator Feingold's experience driving, I would put you as Secretary of HUD in a moment.

Sam Brownback

The housing was excellent, wonderful accommodations, and they were very kind. And I would dare say they would do that for anybody in this room, not just me. That is the kind of people that John and Janet Ashcroft are. And I had a personal experience, and I deeply appreciate that kindness you showed me then and you have all along.

Sam Brownback

Our States share a common border. We have served on two committees together, the Commerce and Foreign Relations Committees. Our offices are just down the hall from each other. So we have had a chance to work on a lot of things together. But, really, much more important than either geography or committee assignments, John has shared with me through his life, through the things that he has done, through what I have observed, what I have seen, what I have talked with him about, his honesty, his integrity, his devotion to his family and to his Creator, his principled character, and his steadfast belief that each of us is put here on Earth to help our fellow man and to leave this world a better place for all of our children, for those here now and those yet to be.

Sam Brownback

And contrary to the assertions of those who make a living exacerbating the tensions that divide us as a Nation, I know John Ashcroft is committed to our Nation's promise of equal justice for all, no matter what their stage of life. He has been an outstanding public servant, an example of public service that many of us on this dais would be proud to have.

Sam Brownback

Now, in the Constitution, Article II, Section 3 provides that the President "shall take care that the laws be faithfully executed." I am certain John has already read that provision many, many times.

Sam Brownback

John, when President-elect Bush nominated you to head the Department of Justice, he stated that he believed in your "commitment to fair and firm and impartial administration of justice." When you accepted President-elect Bush's nomination, you reaffirmed for the world to hear your commitment to equal justice under the law, something you have served your entire life with distinction and will continue to do so.

Sam Brownback

Mr. Chairman, let me close my brief statement by saying to our guests at the witness table that, John, you are missed here in the Senate. You really are. But I look forward to voting for your confirmation and to working with you as Attorney General of the United States, and you are going to do an outstanding job.

Sam Brownback

Thanks.

Patrick Leahy

I see no other Senators have statements to make. We will take a 10-minute break, and before everybody leaves, a lot of people want to come in. If there is anybody who is -- I say this without a great deal of expectation, but if there are those who wish to leave and give their seats to others, there are those available to take the seats. And I mention this because we will have closed-circuit TV in Dirksen 226 with chairs and so forth.

Patrick Leahy

Patrick Leahy

With that we will stand in recess.

Patrick Leahy

If everyone could get seated? So we can understand where we stand, before we go to Senator Ashcroft's testimony, we will first have three distinguished Senators who are here who wish to introduce him, and following tradition, as he is from Missouri, we will first to the senior Senator from Missouri, Senator Bond.

Christopher Bond

Mr. Chairman, if you don't mind, I might defer to the other members of the panel for their first introductions, and I would be happy to relinquish my spot and follow as the third of the introducers.

Patrick Leahy

The Senator, of course, has that right. I thank him for his courtesy, and then we will go to Senator Carnahan, the other Senator from Missouri.

Russ Carnahan

Thank you, Mr. Chairman, Senator Hatch.

Russ Carnahan

Three months ago this very day, I could not possibly have imagined that I would be here. And I suspect that Senator Ashcroft could say the same. During the time that John Ashcroft served the State of Missouri, my late husband, Mel Carnahan, also served in public life, as State treasurer, Lieutenant Governor, and Governor. So I have an appreciation for the many burdens that Senator Ashcroft and Janet and his family have had to bear in order to serve.

Russ Carnahan

Now a new burden rests upon his shoulders and upon each Member of the U.S. Senate. We are considering the nomination of Mr. Ashcroft to be the Attorney General of the United States, one of the most powerful and sensitive offices in the Nation.

Russ Carnahan

I urge you to show him fairness but not favoritism, to welcome all the facts without fear, and to base your decision on principle and not partisanship. I ask you to look beyond any history of friendship or disputes and to look beyond the bonds or divisions of party and to look beyond the urging of interest groups expressing either support or opposition to this nomination. Instead, let us base our decision on the facts as they are determined by a full and fair hearing. I believe that is how we can best serve the interests of the people of America.

Russ Carnahan

Mr. Chairman, Senator Hatch, as a proud resident of the "Show Me" State and a member of this esteemed body, I come here today to introduce to you my fellow Missourian, John David Ashcroft. Thank you.

Patrick Leahy

Thank you very much, Senator.

Patrick Leahy

Senator Hutchison, along our original procedure, we will go to you. Senator Kay Bailey Hutchison of Texas.

Kay Hutchison

Thank you, Chairman Leahy, Chairman Hatch, and other members of the Committee.

Kay Hutchison

I am pleased to be here in support of my good friend, former Senator John Ashcroft, whom I have known for many years before he became my colleague. In fact, I was in Kansas City with him and Janet when he had his first press conference after suspending his campaign for the U.S. Senate for 10 days out of respect for his deceased opponent.

Kay Hutchison

The people of America saw the true heart of John Ashcroft in the way he handled the tragic death of Mel Carnahan. He showed magnanimity in his defeat. He put the people of Missouri before his own self-interest.

Kay Hutchison

Mr. Chairman, I think he will do the same for the people of America as Attorney General of the United States.

Kay Hutchison

John and I have served together for 6 years. He brings an impressive background, which all of you have heard several times today. I also think it is worth mentioning because I think it adds to the integrity of this family to mention his wonderful wife, Janet, who has spent the last 5 years showing her commitment to education and diversity by teaching at one of our great historically black colleges, Howard University.

Kay Hutchison

Senator Ashcroft and I have worked together on many issues, and I want to mention a few of those here because he was a leader. He was leader in cosponsoring my legislation to eliminate the marriage tax penalty, which has the effect of taxing many women at higher rates when they enter the workplace. Last year, he and I worked together to reauthorize the Violence Against Women Act. He and I both introduced legislation to amend the current stalking laws to make it a crime to stalk someone via electronic means, such as the Internet. This new criminal law is now in place.

Kay Hutchison

John led the effort to allow hourly wage earners, particularly working mothers, the ability to craft flexible work schedules to better meet the demands of both job and family. While in the Senate, John Ashcroft voted to prohibit people convicted of domestic violence from owning a firearm. John also took a very important issue, increasing the rights of victims. While he was Governor, he enacted a victims rights law in Missouri and has been a staunch cosponsor with Senator Kyl on the victims rights constitutional amendment, along with Senator Feinstein. Also while Governor, he appointed the first women to the Missouri Supreme Court.

Kay Hutchison

So I would say to this Committee, maybe you might not agree with John Ashcroft on every issue. I think there will be legitimate philosophical differences between Congress and the executive branch. But as I have heard all of the opening statements today, there has been no question whatsoever of John Ashcroft's qualifications, his experience for this job, and his absolute, total integrity.

Kay Hutchison

On the question of enforcing the law, I don't think there is any question that John Ashcroft will uphold and enforce all the laws of our country and do it vigorously. So in nominating John Ashcroft, President-elect Bush has made his choice, and I believe the Congress should respect the new President's decision.

Kay Hutchison

I am pleased to be here, and I thank you, Mr. Chairman, for giving me the opportunity to say a few words on behalf of my former colleague, a person for whom I have great respect.

Patrick Leahy

Thank you, Senator Hutchison, and I appreciate your taking the time to be here.

Patrick Leahy

Senator Bond, we will go now to you, please.

Christopher Bond

Mr. Chairman, Ranking Minority Member, temporarily, Senator Hatch --

Patrick Leahy

He wants you to emphasize, he wants you to repeat "temporarily."

Christopher Bond

Temporarily, Senator Hatch. If I may submit my full statement for the record, I will try to summarize it because I have a good bit to say about the man I am honored to present today, President-elect Bush's nominee for Attorney General.

Christopher Bond

It is a proud day for me, for the State of Missouri, and for this body. As a well-respected former member of this body, John Ashcroft doesn't need to be introduced to you.

Christopher Bond

I go back to 1973. I had the responsibility to appoint a State auditor from Missouri, and based upon what I saw as promise in John Ashcroft, his character, intelligence, and commitment to public service, I selected him. For 28 years, I have watched him work every day in the best and highest traditions of this country. Those of you who worked with him in the Senate have had an opportunity to see that.

Christopher Bond

If you were to ask me one word to describe John Ashcroft, it would be integrity, and integrity means a steadfast adherence to a strict moral or ethical code. I would say to my colleagues on the Committee that code subsumes within it adherence to the Constitution and laws.

Christopher Bond

Throughout John Ashcroft's career as Attorney General and Governor, he has done that. But in this new position I can think of no one better to be the chief law enforcement agent of this country. He believes in strong and fair law enforcement. He has a consistently strong record on law enforcement, and it is supported by those on the front lines of law enforcement.

Christopher Bond

If you would permit me, Mr. Chairman, I wish to recognize Mary Ann Viverette, chief of police for Gaithersburg, Maryland, who is here today on behalf of the International Association of Chiefs of Police, 18,000 members strong, who know firsthand how crucial it is to have the support of someone like John Ashcroft in the Attorney General's office. They are behind John, and I thank you very much, Chief.

Christopher Bond

Mr. Chairman, in recent weeks we have seen self-described proponents of various activist groups try to convince Senators that there is a different John Ashcroft than the man we know personally. Like a sidewalk con artist, these groups are asking Senators, "Who are you going to believe, me or your own lying eyes?" Well, they are asking members of this body to embrace a caricature of John Ashcroft over Senators' own close knowledge of the man's fine record, built on this Committee and on the Senate floor.

Christopher Bond

I have been disappointed in some of the things that I have heard said about John Ashcroft. Slash and attack methods are something we have seen far too often in Washington, and I believe the American people are sick and tired of it.

Christopher Bond

Nevertheless, there are legitimate questions that can and should be raised, and several members of the Committee have raised the reasonable question of whether John Ashcroft can be trusted to enforce the laws with which he personally disagrees. Well, I am here to tell you that I have observed him, and I can give you the Missouri "show me" test. He will enforce the laws.

Christopher Bond

We can assume that most, if not all, United States Attorneys General have disagreed with some of the laws they were charge with enforcing. But why is it now that John Ashcroft, a conservative and committed Christian, is charged by some extreme groups of special interest that he would somehow be unable to enforce the laws because of his beliefs? I see some elements of religious bigotry in that.

Christopher Bond

John Ashcroft has stated and repeated firmly that he believes his religion teaches him that he should not impose his religious beliefs on anybody else. He has, however, sought, as we all have, to change the law where he deeply believes it was inadequate or wrong.

Christopher Bond

Undoubtedly, every member of this Committee can find votes cast or positions taken by John Ashcroft with which we disagree. I certainly can. Obviously, some of you find many issues on which you disagree legislatively with John Ashcroft. But that is not the point.

Christopher Bond

When you look at the record, you will see that John Ashcroft believes in enforcing the law as it stands. As Missouri's Attorney General, he was my lawyer when I was Governor. In 1982, despite his opposition to abortion, he issued an opinion in which he ruled that the Missouri Division of Health could not release to the public information on the number of abortions performed by particular hospitals.

Christopher Bond

Despite his personal view that life begins at conception, he issued an opinion that Missouri law did not require a certificate of death if the fetus was 20 weeks old or less.

Christopher Bond

Despite his own personal commitment to the distribution of Bibles and other religious materials, he issued an Attorney General's opinion in 1979 that a Board of Education has no legal authority to grant permission to any organization to distribute religious material to any or all the study body on school property.

Christopher Bond

And although he stated his opposition to racial set-asides, he issued an opinion in 1980 that allowed the Missouri Clean Water Commission to award a 15 percent State grant to the Metropolitan St. Louis Sewer District to establish a minority business enterprise program.

Christopher Bond

The John Ashcroft you and I know will be a good Attorney General. I can think of no nominee who is better qualified, Senator Kyl, and many of you have already spoken about the qualifications. I must say in deep regret that the characterization of John Ashcroft's record by my distinguished colleague from Massachusetts is flat simply wrong. That is not the person that we in Missouri know and respect.

Christopher Bond

John Ashcroft will and can continue to serve this Nation with distinction. He knows the legislators' job is to write the laws and the Attorney General's job is to enforce it.

Christopher Bond

The American people have a right to expect something better than an Attorney General who bends the law to serve a President's political needs and personal views. I know John Ashcroft would never engage in such behavior. He will faithfully, fairly, and effectively administer the laws of this great land. He is not one to bend the laws to his personal beliefs.

Christopher Bond

I come before this Committee to respectfully ask that John Ashcroft's nomination to be Attorney General be judged on the basis of the content of his character and the charges against him which are personal and insubstantial be dismissed and that this Committee and the full body confirm him as United States Attorney General.

Christopher Bond

Members of the Committee and colleagues.

Christopher Bond

I am honored to come before you today to present President-elect Bush's nominee for Attorney General. It is a proud day for me. It is a proud day for Missouri. And it should be a proud day for the United States Senate.

Christopher Bond

As a well-respected former member of this body, John Ashcroft needs no introduction to you.

Christopher Bond

Each of you knows him as I do: A good and honest man who has spent his life in the service of the good people of Missouri and the nation. John Ashcroft is a man whose personal beliefs animate his lifetime of selfless service to Missouri and the nation.

Christopher Bond

In 1973, I had the responsibility to appoint a State Auditor for Missouri and based upon what I saw to be the promise in John Ashcroft -- his character, intelligence and commitment to public service -- I selected him. For 28 years, I have watched him work every day in the best and highest tradition of this country. Many of you have also seen that during the last six years, when John served with distinction on this very committee.

Christopher Bond

I know this man. Each of you know this man. And he is a good man whose service reflects well on his friends, his family, Missouri and on this great body.

Christopher Bond

If asked by the Judiciary Committee to use only one word to describe John Ashcroft, I would be forced by the weight of facts and my own personal experience to select the word "INTEGRITY."

Christopher Bond

I can think of very few of our colleagues -- regardless of party -- who better personifies that virtue.

Christopher Bond

And in this day and age, what exactly does that mean? INTEGRITY.

Christopher Bond

It means a "steadfast adherence to a strict moral or ethical code."

Christopher Bond

Throughout John Ashcroft's career, as Missouri's Attorney General, as Missouri Governor for two terms, as United States Senator, he has demonstrated above all else a "steadfast adherence to a strict moral and ethical code."

Christopher Bond

I can think of no better man to be the nation's chief law enforcement officer. Everything about John Ashcroft's record of public service -- and personal character -- tells us that he will be faithful to the law. A "steadfast adherence to a strict moral or ethical code" is precisely the virtue that must be held by the person entrusted with enforcing the laws of the land.

Christopher Bond

John Ashcroft has built a record during his service of strong support for law enforcement. It is not new. It goes back to when he served as our state's Attorney General and as Governor. Everything about John's career tells us that he understands one thing above all else: the promise contained in this nation of laws can only be realized when all the laws are properly enforced.

Christopher Bond

Strong law enforcement is good for all Americans. What higher responsibility is there for a government than to provide the safety and security citizens require to pursue their full potential? An unsafe street or neighborhood infringes upon the freedom of law-abiding citizens. It is no mistake that the goal of establishing Justice and ensuring domestic tranquility reside in the very first sentence of our Constitution.

Christopher Bond

John Ashcroft's consistently strong record on law enforcement is supported by those on the front lines.

Christopher Bond

Mr. Chairman, permit me to recognize Mary Ann Viverette, Chief of Police for Gaithersburg, Maryland, who is here today on behalf of the International Association of Chiefs of Police -- an 18,000 member organization of the top law enforcement leaders in their communities. They know first-hand what crime does to neighborhoods and people. And they know how crucial the support of people like John Ashcroft is to their efforts. They are behind John Ashcroft all the way. Thank you, Mary Ann.

Christopher Bond

Mr. Chairman, in recent weeks, we have seen self-described spokesman of various activist groups try and convince Senators that there is a different John Ashcroft than the man they know personally. Like a sidewalk con artist, these activist groups ask Senators: "who are you going to believe, me or your own lying eyes?" They are asking members of this body to embrace a caricature of John Ashcroft over Senators' own close knowledge of this man's fine record, built on this Committee -- and on the Senate floor.

Christopher Bond

That is just plain wrong.

Christopher Bond

A well-respected former member of this body deserves better than that.

Christopher Bond

John Ashcroft deserves better than that. Our new President and the American people deserve better than that.

Christopher Bond

I must tell you, what I have seen in the weeks following John Ashcroft's nomination has deeply disappointed me.

Christopher Bond

I have seen activist groups band together to wage an attack campaign against John Ashcroft. The irony is clear to all of us who are familiar with how Washington really works -- this attack campaign really has nothing to do with John Ashcroft's ability to be a great Attorney General on behalf of the American people.

Christopher Bond

It is all about advancing the activist attackers' agendas. By targeting and setting out systematically to smear John Ashcroft, they seek to rally their own troops, raise money and secure publicity.

Christopher Bond

These slash-and-attack methods against John Ashcroft are something we have seen far too often in Washington in recent years. Something the American people are just plain sick and tired of seeing.

Christopher Bond

Let's be perfectly clear about what they are doing: they are trying advance their own interests by engaging in the politics of personal destruction. They are trying to build themselves up by tearing John Ashcroft down. That is just plain wrong. It is a tactic we must reject.

Christopher Bond

One of the false charges thrown against John Ashcroft is that he cannot be trusted to enforce laws with which he personally disagrees. We can assume that most if not all United States Attorneys General have disagreed with some of the laws they were charged with enforcing. Why is it now that in John Ashcroft, a conservative and committed Christian, that doubts are aired -- and given credence -- about his ability to enforce the law?

Christopher Bond

Some activists who claim to embrace and promote religious diversity and tolerance seem unable to extend their beliefs to a conservative Christian. I thought we broke that barrier when John F. Kennedy became President and we saw that he did not put his Catholic beliefs above the law of the land. And what of our colleague Joe Lieberman, whose candidacy for Vice President and his public religious utterances tore down even more barriers? Should religious diversity and tolerance be extended only to some religions and not others? What we see in the campaign against John Ashcroft is nothing less than religious bigotry.

Christopher Bond

John Ashcroft has stated and firmly believes that his religion teaches him that he should not impose his religious beliefs on anybody else. He has a deep and abiding faith, but he also understands the preeminence of temporal law in the United States Constitution and the laws of this land. He has sought, as we all have, to change the law where he deeply believed it was inadequate or wrong.

Christopher Bond

Undoubtedly, every Member of this Committee can find votes cast or positions taken by John Ashcroft with which we disagree. I certainly can. Obviously, some of you find many issues on which you disagree legislatively with John. But that is not the point.

Christopher Bond

When you look at the record you will see that John Ashcroft believes in enforcing the law as it stands. As Missouri Attorney General, he was my lawyer when I was Governor. In 1981, despite his opposition to abortion, he issued an Opinion (Attorney General Opinion No. 5, October 22, 1981 [1981 WL 154492]), in which he ruled that the Missouri Division of Health could not release to the public information on the number of abortions performed by particular hospitals. He also ruled that in order to protect the patient-physician privilege, access to health data maintained by the Division of Health was subject to review only by Public Health officers.

Christopher Bond

Despite his personal view that life begins at conception, he issued an Opinion (Attorney General Opinion No. 175, September 23, 1980 [1980 WL 115450]), that Missouri law did not require any type of death certificate if the fetus was 20 weeks old or less.

Christopher Bond

Despite his own personal commitment to the distribution of bibles and other religious materials to assist people in developing a spiritual understanding of their relationship with God, he issued an Attorney General opinion in 1979 (Attorney General Opinion No. 8, February 8, 1979 [1979 WL 37969]) that a Board of Education has no legal authority to grant permission to any organization to distribute religious material to any or all the student body on school property.

Christopher Bond

Although he has stated his opposition to racial set-asides, he issued an Attorney General Opinion in 1980 (Attorney General Opinion No. 59, April 9, 1980 [1980 WL 115410]) that allowed the Missouri Clean Water Commission to award a 15 percent state grant to the Metropolitan St. Louis Sewer District to establish a minority business enterprise program.

Christopher Bond

The John Ashcroft you and I both know will be a good attorney general. As a matter of fact, I can think of no nominee who has had more experience and better preparation for the office of Attorney General of the United States. He served with distinction as Attorney General in my State of Missouri and he was selected by his fellow Attorneys General to lead their national association.

Christopher Bond

He served with distinction as a two-term Governor, winning with huge margins in a state where Democrats have traditionally out-polled Republicans. That tells you all you need to know about John Ashcroft's politics and values: they are the same advocated by the great majority of Americans. And it tells you how out of touch with America some of these activist opposition groups are.

Christopher Bond

John has served a term in the United States Senate and served on this very committee where he dealt with many of the issues that are before the Department of Justice.

Christopher Bond

John Ashcroft will continue to serve this nation with distinction. He knows that the legislators' job is to write the laws and that Attorneys General enforce those laws.

Christopher Bond

The American people have the right to expect something better than an Attorney General who bends the law to serve a President's political needs and personal views and I know John Ashcroft would never engage in such behavior. He will faithfully, fairly and effectively administer the laws of this great land.

Christopher Bond

I come before this committee and ask that John Ashcroft's nomination to be Attorney General be based on the content of his character. And that this committee -- and the United States Senate -- reject the slime campaign against this fine man.

Christopher Bond

Failure to support this nominee would not only be a disservice to John Ashcroft, it would also tarnish the reputation of this institution.

Christopher Bond

We must not let that happen.

Christopher Bond

Mr. Chairman, I appreciate what Senator Bond has mentioned. I will come back during the question period, and we will have an opportunity to have an exchange with the nominee.

Patrick Leahy

I thank the Senator.

Joe Kennedy III

Patrick Leahy

Whatever the Senator wants. It is somewhat extraordinary for somebody introducing somebody to take issue with an opening statement of a Senator on the panel, and I would give opportunity for you to respond now if you want.

Christopher Bond

I would be happy to.

Joe Kennedy III

We will wait until the question period.

Patrick Leahy

Why don't we do this? I thank all three of the introducers, and why don't I let you leave, and maybe the staff can move this around a little bit so that Senator Ashcroft could sit in the center, move the name tags around and the rest.

Patrick Leahy

I thank Senator Hutchison, Senator Carnahan, and Senator Bond. I thank you for being here.

Patrick Leahy

Senator Ashcroft, would you please stand to be sworn? Do you swear or affirm that the testimony you are about to give before the Committee will be the truth, the whole truth, and nothing but the truth?

John Ashcroft

I do.

Patrick Leahy

Please be seated. Senator Ashcroft, before you begin your statement, it has been mentioned several times that you have family and friends here. Would you like, following our normal procedure at these things, to point out family members or others you may wish to in the audience?

John Ashcroft

Mr. Chairman, if it pleases the Committee, I would make that a part of my opening remarks.

Patrick Leahy

It is totally your choice. Go ahead.

John Ashcroft

Mr. Chairman, Senator Leahy, Senator Hatch, members of the Committee --

J. Thurmond

Would you speak in your loud speaker?

John Ashcroft

Yes, Senator Thurmond, I will. Thank you very much.

Jeff Sessions

You should know that by now, John.

John Ashcroft

It is a case of how soon we forget. What struck me most is that I came here and I had a distinct and clear signal that being out of the Senate is different, because each other Member of the Senate was designated as "honorable," and I'm just designated as "Senator," and I'm trying to figure out what the difference is between being honorable and being a Senator.

Patrick Leahy

Be careful. You may lose some votes over here.

Orrin G. Hatch

I don't think so.

John Ashcroft

Thank you. It is a high honor for me to appear before you today for consideration as the Attorney General of the United States of America. I first want to extend my appreciation to the Senators from my home State of Missouri, Senators Bond and Carnahan, for the courtesy and kindness of participating in an introduction for me at this Committee today. And, of course, it is most pleasing that Senator Kay Bailey Hutchison of Texas would join them by adding introductory remarks on my behalf. I extend to her my sincere appreciation as well.

John Ashcroft

For 4 years I had the privilege of sitting with you on this Committee. During that time I never thought of it simply as the Judiciary Committee. Instead, I thought of it being the "Justice" Committee, for this distinguished body is the ultimate legislative voice on America justice. It was an honor to serve with you in that noble endeavor.

John Ashcroft

Today I am here in a far different capacity. President- elect George W. Bush has designated me to lead the "Justice" Department -- the principal executive voice on American justice and what must be, should be, and continue to be the role model for justice the world over.

John Ashcroft

It is not only with honor, therefore, that I sit before you today; it is with an awesome sense of responsibility. For I know that, if confirmed on my shoulders will rest the responsibility of upholding American justice, a tradition that strives to bring protection to the weak, freedom to the restrained -- I wasn't going to introduce my grandson, Jimmy, at this point.

Patrick Leahy

Jimmy, what you got going for you, there are a lot of grandparents on this panel.

John Ashcroft

Thank you, Jimmy. He upstages me around the house, too. I'm not what I used to be.

John Ashcroft

Our tradition in the Justice Department that strives to bring protection to the weak and freedom to the restrained, liberty to the oppressed, and security to every citizen.

John Ashcroft

Mine will be the same mantle carried by my predecessors: by Edmond Randolph, President George Washington's choice to be America's first Attorney General; by Robert Kennedy, who found within himself the courage to surmount America's historic racial intolerance and to lend powerful assistance to the burgeoning civil rights movement.

John Ashcroft

I understand the responsibility of the Attorney General's office, I revere it, I am humbled by it. And if I am fortunate enough to be confirmed as the Attorney General, I will spend ever waking moment -- and probably some sleeping moments as well -- dedicated to ensuring that the Justice Department lives up to its heritage -- not only enforcing the rule of law, but guaranteeing rights for the advancement of all Americans.

John Ashcroft

The Attorney General must recognize this: The language of justice is not the reality of justice for all Americans. My wife has helped me with anecdotes of her from her experience to understand that there are millions of Americans who wonder if justice means hostility aimed at "just us." From racial profiling to news of unwarranted strip searches, the list of injustice in America today is still long. Injustice in America against any individual must not stand. This is the special charge of the U.S. Department of Justice.

John Ashcroft

No American should be turned away from a polling place because of the color of her skin or the sound of his name.

John Ashcroft

No American should be denied access to public accommodations or a job as a result of a disability.

John Ashcroft

No American family should be prevented from realizing the dream of home ownership in the neighborhood of their choice just because of skin color.

John Ashcroft

No American should have the door to employment or educational opportunity slammed shut because of gender or race.

John Ashcroft

No American should fear being stopped by police just because of skin color.

John Ashcroft

And no woman should fear being threatened or coerced in seeking constitutionally protected health services.

John Ashcroft

I pledge to you that if I am confirmed as Attorney General, the Justice Department will meet its special charge. Injustice against individuals will not stand. No ifs, ands, or buts. Period.

John Ashcroft

The Attorney General is charged with the solemn responsibility of serving as the attorney for the United States of America. The Attorney General is the people's counsel. The Attorney General must lead a professional, non-partisan Justice Department that is uncompromisingly fair, defined by integrity, and dedicated to upholding the rule of law. I pledge to you that if I am confirmed as Attorney General, I will serve as the Attorney General of all the people.

John Ashcroft

Today, I would like to spend a few minutes telling you a bit about myself and my family and my beliefs.

John Ashcroft

I am the grandson of immigrants. My father was a pastor and a college president. I was raised in Springfield, Missouri, in a home where all of God's children were welcome. In fact, my parents gave up their bed so many times that I thought that they actually knew all of God's children who came to visit. That lesson of hospitality and generosity was just one of many my parents urged on me.

John Ashcroft

I went to Yale University where I dreamed of playing quarterback. When I got there, I discovered that either I was slow or everybody else was really fast. So I studied hard, and I was fortunate enough to graduate and then attend the University of Chicago Law School.

John Ashcroft

For me, the law was about the promise of justice, the promise that under law, all men, all women, all people are equal. While in Chicago, however, I did find one person I thought a little more equal than all the others, a woman of grace and charm and intellect and not insignificantly to me as a young man, a woman that I thought was the most beautiful I had ever seen. The only thing better than her, I thought, would be two of them.

John Ashcroft

After rebuffing me several times, my persistence overcame her better judgment. She has stuck with me for 33 years, and members of the Committee, her name is Janet Ashcroft. I am privileged to have her with me today.

John Ashcroft

I am also pleased to tell you that she is an accomplished legal author and has spent the last 5 years teaching law in the Business Department of Howard University here in Washington, D.C.

John Ashcroft

I am also pleased as well to welcome her identical twin sister -- they are not as identical as they used to be, but I could always tell them apart -- Anne Giddings, to the hearing today.

J. Thurmond

Tell her to raise her hand.

John Ashcroft

Yes. Will the real Janet Ashcroft please stand up?

John Ashcroft

And, Anne, would you stand up with your sister, please? Thank you.

John Ashcroft

I wanted also to introduce my daughter, Martha Grace Patterson who is an attorney form Kansas City, attorney and mother, my grandson, Jimmy Patterson, who has already made his presence known to you. I regret that my eldest son, John Robert Ashcroft, whose faculty responsibilities at Forest Park Community College in St. Louis required his presence with students and cannot be with us today. Additionally, I regret that active-duty responsibilities of my son, Andrew David Ashcroft, in the United States Navy make impossible his attendance at this hearing. I am grateful for my family. They are wonderful people. They are not wonderful because of me. They are wonderful in spite of me. They are a wonderful support and help to me. I thank God for them.

John Ashcroft

Upon graduating from law school, I returned to Missouri where I taught business law at Southwest Missouri State University, and after 5 years of teaching, I embarked on a quarter-century career in public service serving the people of Missouri. In 1973, the then-Governor Kit Bond appointed me as State auditor. Two years later, then-Attorney General Jack Danforth appointed me Assistant Attorney General. I could not have had two more accomplished and distinguished mentors in public life than Jack and Kit. Beginning in 1976, I was elected to the two terms as Attorney General, then two terms as Governor, and unfortunately -- well, pardon me. Just one term as the United States Senator.

John Ashcroft

In the course of the six statewide election campaigns, I came to know the people of Missouri very well. Missouri is representative of the rich diversity of the American people. The people of the Show Me State respond to the plainspoken honesty and tolerance of men like Jack and Kit and, of course, Harry Truman. I am pleased they elected me to statewide office five times.

John Ashcroft

Eighteen years of my service in elective office have been focussed on enforcing the law, 6 years enacting the law. I know the difference between enactment and enforcement, and my record shows that.

John Ashcroft

I am here today as the Attorney General designate. I know what the office requires. I have been an Attorney General before. I understand that being Attorney General means enforcing the laws as they are written, not enforcing my own personal preference. It means advancing the national interest, not advocating my personal interest.

John Ashcroft

For example, in 1979, I issued an Attorney General's opinion stating that under the State constitution and law of Missouri, a local school board of education had no legal authority to grant permission for the distribution of religious publications to the student body on public school grounds.

John Ashcroft

On another occasion, contrary to the demands of pro-life advocates, I directed State government, the State government of Missouri, to maintain the confidentiality of abortion records because a fair reading of the law required it. Throughout my tenure, I did my level best to enforce fully and faithfully the laws as they were written and to protect the legal interests of the State of Missouri when it was attacked and when the institutions of the State were attacked. I did this without regard to any personal policy preferences, and when I left the Attorney General's office, Missouri was a State more committed to fairness and justice.

John Ashcroft

From my experience, I also understand that the citizen's paramount civil right is safety. Americans have the right to be secure in their persons, in their homes, and in their communities. Gun violence, violence against women, drug crime, sexual predators, they all threaten to deny this most fundamental of rights to be secure in the person, property, and community of individuals. It is a core responsibility that Government, led by the Attorney General and the Department of Justice, cooperating with local law enforcement officials, will secure this right.

John Ashcroft

Children don't learn in schools overrun by neighborhood violence. Jobs will not be found in communities where criminals own the streets. No American who now feels threatened should have to move in order to live in a safer neighborhood.

John Ashcroft

My record on these issues is clear and unmistakable, and my determination is unwavering. I will continue to work to deter and punish violent criminals who use guns. I will vigorously force Federal domestic violence laws and utilize the Violence Against Women Act to assist States in this effort. Likewise, we will put new vigor into the fight against the illegal drug organizations and redouble our vigilance against terrorists.

John Ashcroft

During my service as both State Attorney General and Governor, we increased the number of full-time law enforcement officers by over 60 percent. We also lengthened prison sentences for criminals and significantly increased juvenile prosecutions for serious crimes. During my tenure as Governor, we won passage for a Missouri Victim's Bill of Rights. We secured $100 million in increased funding to combat violence against women. We also increased funding for anti-drug programs by almost 40 percent, and three-quarters of that went for education, prevention, and for treatment.

John Ashcroft

As a Senator, I voted to deny the right to bear arms to those convicted of domestic violence. I supported increased funding for victims and helped enact legislation combatting telemarketing scams against seniors. I supported mandatory background checks for gun show sales and increased Federal funds for law enforcement at the local level. I have always been pleased by my support from law enforcement officers, those how are here today for whom I am grateful and those who in past times have endorsed me most recently in my campaign for the Senate by the Missouri Federation of Police Chiefs and the St. Louis Police Officers Association. On the strength of this record and my commitment to the personal security and safety of the people of the United States of America, I pledge my commitment to secure the rights of all Americans to safety and security in their daily lives.

John Ashcroft

I also know from my service that a successful Attorney General must be able to listen and find common ground with leaders of diversely held viewpoints. Few organizations reflect the diversity and strongly held views as much as the bipartisan National Association of Attorneys General. I was honored when my fellow State Attorneys General elected me president of that association. I was humbled when they recognized me for outstanding service and presented me with the distinguished Wyman Award. I was similarly honored when the bipartisan National Governors' Association elected me to serve as their Chairman.

John Ashcroft

I know something about the role of an Attorney General. As I said earlier, the Justice Department has a special charge to protect the most vulnerable in our society from injustice. I take pride in my record of having vigorously enforced the civil rights laws as Attorney General and Governor. Not only did I enforce the law, I took proactive steps to expand opportunity. I signed Missouri's first hate crime statute. By executive order, I made Missouri one of the first States to recognize Martin Luther King Day. I led the fight to save Lincoln University, the Missouri university founded by African-American Civil War veterans.

John Ashcroft

I took special care to expand racial and gender diversity in Missouri's courts. I appointed more African-American judges to the bench than any Governor in Missouri history, including appointing the first African American on the Western District Court of Appeals and the first African-American woman to the St. Louis County Circuit Court. It was my honor to appoint the first two women to the Missouri Courts of Appeals and the first woman to the Missouri State Supreme Court, the only woman ever to have been appointed to that court.

John Ashcroft

No part of the Department of Justice is more important than the Civil Rights Division. I look forward to the President's appointment with your advice and consent of a talented and dedicated leader of that division. It is essential that such strong leadership pursue fair treatment for all Americans.

John Ashcroft

Before leaving the topic of civil rights, I want to address an issue that has been raised in the weeks since President Bush nominated me to this post. Some have suggested that my opposition to the appointment of Judge Ronnie White, an African-American Missouri Supreme Court judge, to a lifetime term on the Federal bench was based on something other than my own honest assessment of his qualifications for the post.

John Ashcroft

During my 8 years as Governor, I was the appointing authority for judges. As I have just noted, I exercised the power with special care to promote racial diversity on the Missouri State court bench. Because of my experience as Governor, when I became Senator, I approached the judicial confirmation process with both the appropriate deference due an executive and also a personal commitment to ensuring diversity on the bench. Of the approximately 1,686 Clinton Presidential nominees, both judicial and non-judicial, voted on by the Senate, I voted to confirm all but 15. I voted to approve every Cabinet nomination made by the President of the United States. Of President Clinton's 230 judicial nominees, I voted to confirm 218 of them. Perhaps it is needless to say, but I had philosophic disagreements with many, if not most, of those judicial nominees. But I think the record of votes stands for itself.

John Ashcroft

On the floor of this body, I voted to confirm 26 out of 27 African-American judicial nominees. My opposition to Judge Ronnie White was well founded. Studying his judicial record, considering the implications of his decisions, and hearing the widespread objections to his appointment from a large body of my constituents, I simply came to the overwhelming conclusion that Judge White should not be given lifetime tenure as a U.S. District Court judge. My legal review revealed a troubling pattern of his willingness to modify settled law in criminal cases. Fifty-three of my colleagues reached the same conclusion. While I will not take time during my brief opening statement to discuss particular matters in Judge White's record that compelled me to my decision, I welcome the opportunity to discuss those matters later.

John Ashcroft

Another issue merits specific mention in these opening remarks, and that is the issue that we would identify with the case of Roe v. Wade which established a woman's constitutional right to an abortion.

John Ashcroft

As is well known, consistent with Republican United States Attorneys General before me, I believe Roe v. Wade, as an original matter, was wrongly decided. I am personally opposed to abortion, but as I have explained this afternoon, I well understand that the role of Attorney General is to enforce the law as it is, not as I would have it. I accept Roe and Casey as the settled law of the land. If confirmed as Attorney General, I will follow the law in this area and in all other areas. The Supreme Court's decisions on this have been multiple, they have been recent, and they have been emphatic.

John Ashcroft

I have been entrusted with public service for more than 25 years. It is a responsibility I have honored and a trust that I believe I have kept. During those years, I have not thought of myself as a public servant of some of the people, but a keeper of the public trust for all the people. If I become United States Attorney General, I again commit to enforcing the law, all of the law, for all of the people.

John Ashcroft

I appear here today as a man of faith, a man of common- sense conservative beliefs, a man resolutely committed to the American ideal. On occasion, some of you have disagreed with my views. You have done so respectfully, and I thank you.

John Ashcroft

In turn, I hope that my disagreements with you have reciprocated your respect, but whether we are conservatives or liberals, religious or secular, Republicans or Democrats, what we have in common is far greater and more important than what divides us. As Americans, we live under a Constitution uniting us under a rule of law, a Constitution that allows us to live side by side, in harmony, working for the mutual interest of all Americans and our communities. It is, indeed, adherence to the rule of law that is the basis of our democracy.

John Ashcroft

Never in the history of the world has any country so thoroughly dedicated itself to respecting laws, for it is in respecting laws that we respect the individual dignity and freedom of people. Nowhere in Government is thorough obedience to the rule of law more powerfully evident and more urgently necessary than at the Department of Justice.

John Ashcroft

If I am fortunate enough to be confirmed by the U.S. Senate and to become the next United States Attorney General, I pledge to you that strict enforcement of the rule of law will be the cornerstone of justice.

John Ashcroft

As a man of faith, I take my word and my integrity seriously. So, when I swear to uphold the law, I will keep my oath, so help me God.

Patrick Leahy

What we will do now, we will have in the first round of questioning --

Patrick Leahy

Patrick Leahy

The Committee will be in order. The Committee will stand in recess until the police can restore order. Officer, restore order. The police will restore order.

J. Thurmond

Put them out and keep them out.

Patrick Leahy

The Committee will also stay in order.

Patrick Leahy

It will be the policy of the Chairman to not allow any demonstrations for or against the nominee. You are all guests of the U.S. Senate. The hundred Senators have a duty to vote for or against this nominee. We will make up our mind based on the testimony within this room, and the testimony of the nominee. We will not allow demonstrations of any sort. Everybody has a chance to write or call their individual Senators for or against Senator Ashcroft.

Patrick Leahy

I thank the Capitol Police for restoring order.

Patrick Leahy

Now, as I said before, it will be the intent of the Committee to have 15-minute rounds for each Senator, doing the usual alternating on the first round. If there are further questions, we will have shorter rounds after that.

Patrick Leahy

I have told the nominee that if at any time he wants a break, of course, we will take one, again, following normal time.

Patrick Leahy

So I will start the questioning, and then we will turn to Senator Hatch.

Orrin G. Hatch

Senator Ashcroft, while you served in the Senate, you did not have an opportunity to vote on a nomination for Attorney General, and, in fact, this is your first hearing that you have attended in any capacity in the Senate for Attorney General. But from 1995 to last year, as you pointed out, you voted for a number of President Clinton's nominees. You also chose to oppose and vote against a number of President Clinton's nominees to the executive branch, in both cases exercising the right any Senator has.

Orrin G. Hatch

But I wanted to explore with you what appears to be, for want of a better term, the Ashcroft standard that you used when you reviewed Presidential nominations. I will start with that of Bill Lann Lee. You opposed the nomination of Bill Lann Lee to head the Civil Rights Division of the Department of Justice. In November 1997, you said, "This is what I have been sent to Washington to do, to evaluate whether or not an individual be the kind of administrator in an agency that people are entitled to have." You opposed Mr. Lee because, as a civil rights lawyer, you thought, and I quote you again, "His pursuit of specific objectives that are important to him limit his capacity to have the balanced view of making the judgments that would be necessary for the person who runs that division." You also said, "We don't need an individual who is trying to go against the Constitution as recently interpreted by the Supreme Court. We need someone who is going to say, `I am here to provide the administration' " -- and that is an actual quote -- "I am not here to amend the Constitution. I am here to defend the Constitution. That is what we need."

Orrin G. Hatch

Now, Senator, using this Ashcroft standard, do you adhere to those views as setting the proper standard by which Senators should evaluate Presidential nominations?

John Ashcroft

Well, I am pleased, first of all, Mr. Chairman, to thank you for the question. It is an important question. I thank you also for the way you are conducting this hearing. I appreciate your willingness to make sure that we have an opportunity to make these discussions in a setting which is conducive to understanding.

John Ashcroft

I think the ability to enforce the law as it is written and as it has been defined by the United States Supreme Court is very important, and when I have evaluated individuals, that is a very important criterion, especially for someone in an administrative or enforcement role and not in an enactment role. Obviously, in the Senate, we take a variety of positions because we -- I say advisedly "we." I am no longer a Senator, and I don't mean to be presumptive, but because in the debate and in the exchange, we arrive at what the law will be.

John Ashcroft

I joined with eight other Republicans on the Senate Judiciary Committee in opposing Bill Lee's nomination to be Assistant Attorney General because I had serious concerns about his willingness to enforce the Adarand decision which was a recent decision of the United States Supreme Court. He was an excellent litigant, but I had concerns that he viewed the Adarand decision as an obstacle, rather than as a way in which the law was defined.

John Ashcroft

Adarand held that Government programs that established racial preferences based on race are subject to strict scrutiny. That is the highest level of scrutiny under the Supreme Court's Equal Protection Clause. Adarand was a landmark decision. It was substantial. It was important.

Patrick Leahy

But, Senator --

John Ashcroft

Mr. Lee did not indicate a clear willingness to enforce the law based on that decision, in my judgment.

Patrick Leahy

Well, Senator Ashcroft, if I could disagree with you on that. Mr. Lee testified on a number of occasions; in fact, testified under oath, including, incidently directly in answer to your questions that he would enforce the law as declared in Adarand. He also said in direct answer to questions of this Committee that he considered the Adarand decision of the Supreme Court as the controlling legal authority of the land, that he would seek to enforce it, he would give it full effect, but you say that he would not accept that decision and apply it fairly. Was Bill Lann Lee lying under oath to this Committee?

John Ashcroft

I certainly don't want to say that. I would simply want to say that when asked what the standard was, he did not repeat the strict scrutiny standard of narrowly tailored and directly related. He --

Patrick Leahy

But how could he be more strict --

Patrick Leahy

Senator Ashcroft [continuing]. Stated another standard, and when asked whether the standard which he applied would affect programs, he basically said wouldn't have any effect on the programs of the Federal Government. Now, in my judgment --

Patrick Leahy

But he said he would uphold it. I mean, what more could he say?

John Ashcroft

He said he would -- well, frankly, he could have said that when applying a test, he would use the same test that the Supreme Court of the United States said should be used in strict scrutiny cases, but -- and if he had, I believe that people would have been more likely to give credence when Chairman Hatch -- of course, he made an eloquent floor statement about this in speaking on this matter, but when Chairman Hatch delivered his remarks on this matter, I think he made clear what the rest of us felt, that while he said he considered the Adarand decision the law of the land, when he discussed the way in which it was implemented, it was clear that it would not be applied in the way that the Supreme Court would require its application.

Patrick Leahy

OK. Then I understand, as I said, the Ashcroft standard on that, but let's go, then, further. Let's take another step.

Patrick Leahy

Like Bill Lann Lee, you have a long history of pursuing specific objectives that are important to you, but I would assume, like he, within the law. Throughout your public life as Attorney General and Governor of Missouri and as a U.S. Senator, you have opposed a woman's constitutionally protected right to reproductive freedom and choice, even in cases of rape and incest. You have fought voluntary school desegregation, affirmative action, and gay rights.

Patrick Leahy

When you were running for President in 1998, you were quoted as saying, "There are voices in the Republican Party today who preach pragmatism, who champion conciliation who counsel compromise. I stand here today to reject those deceptions," again, your words.

Patrick Leahy

Now, given that history -- and you can understand why some might be troubled by it -- what assurances can you give us that you would serve as the chief enforcement officer of this country with the kind of balanced view that you acknowledge is necessary for top officials in the Department of Justice, the balanced view that you said others must have before you would vote for their confirmation?

John Ashcroft

Mr. Chairman, with all due respect, I would like to just have a chance to go back to that list, the litany of things --

Patrick Leahy

Senator Ashcroft [continuing]. And positions you attributed to me. You said I opposed voluntary desegregation of the schools. Nothing could be farther from the truth. I don't oppose desegregation. I repudiate segregation. I am in favor of integration.

Patrick Leahy

Patrick Leahy

When the State of Missouri was asked to fund with hundreds of billions of dollars a program imposed by a Federal court --

Patrick Leahy

Hundreds of billions?

John Ashcroft

Hundreds of millions of dollars. Pardon me. I thank you for correcting me. I have been in Washington so long, I forgot how to say "millions." I have just started saying "billions."

Patrick Leahy

I am more interested -- I am more interested in what you said at the time of the desegregation orders in Missouri.

John Ashcroft

I opposed a mandate by the Federal Government that the State, which had done nothing wrong, found guilty of no wrong, that they should be asked to pay this very substantial sum of money over a long course of years, and that is what I opposed.

John Ashcroft

I have always opposed segregation. I have never opposed integration. I believe that segregation is inconsistent with the 14th Amendment's guaranteeing of equal protection. I supported integrating the schools.

John Ashcroft

Now, while I was the Missouri Attorney General, I inherited a desegregation lawsuit in St. Louis from my predecessor in office, Jack Danforth. The State had been sued. I argued on behalf of the State of Missouri that it could not be found legally liable for segregation in St. Louis schools because the State had never been a party to the litigation.

John Ashcroft

Now, one of the responsibilities of an Attorney General, in my judgment, is that when the entity which you represent legally is attacked or sued, you should defend it. Here, the court sought to make the State responsibility and liable for the payment of these very substantial sums of money, and the State not only had -- had not been found really guilty of anything.

John Ashcroft

I also took the position on behalf of the State that the court's inter-district remedy in that case was inappropriate because there was never any finding of an inter-district violation.

John Ashcroft

Now, to me, I just want to try to make it clear. It has been mentioned on several occasions, and I just think I want to have the opportunity to say with clarity that I do not support segregation. I support integration.

John Ashcroft

I happen to have been a young person in school when Brown v. Board of Education was announced. The schools in my town had been segregated. They were immediately integrated, and I support that, and so I would be very pleased -- there was a list of things that were similarly --

Patrick Leahy

And we will go back to them, and I will make absolutely sure, I can assure you, that you will have the time to speak about them.

Patrick Leahy

I would point out, though, that in the case you speak about -- the Federal District Court threatened to hold the State in contempt if it didn't submit a specific desegregation plan within 60 days and said, "The Court can draw only one conclusion. The State has as a matter of deliberate policy decided to defy the authority of this Court." What I am driving at --

John Ashcroft

Mr. Chairman, I would be glad to respond to that, if you would like to have me do so.

Patrick Leahy

I would. Hold on one moment and then --

John Ashcroft

Thank you. I take these very seriously.

Patrick Leahy

Go ahead. Respond to that. Respond to that.

John Ashcroft

Well, you know, if the State hadn't been made a party to the litigation and the State is being asked to do things to remedy the situation, I think it is important to ask the opportunity for the State to have the kind of due process and the protection of the law that an individual would expect.

Patrick Leahy

So did you --

John Ashcroft

If a person swears to uphold the law of the State and to become the Attorney General when the State is attacked, I think it is important to expect the Attorney General of the State to defend the State.

John Ashcroft

Now, over time, it might be that if there had been a different structure, something different would have happened.

Patrick Leahy

Did you consider -- and this, you actually can answer yes or no -- did you consider the District Court was fair in suggesting that you on behalf of the State of Missouri was -- that you were basically dragging your feet? Do you feel that was fair?

John Ashcroft

I think it is unfair to characterize a person as being uncooperative if they are asked to indemnify a situation when there was no opportunity for them to originally be a party to the lawsuit --

Patrick Leahy

So you have found --

Patrick Leahy

Senator Ashcroft [continuing]. And if they weren't in a position to defend themselves. That would be unfair.

Patrick Leahy

So you found the criticism of you by the court to be unfair.

John Ashcroft

Frankly, I thought the ruling by the court that the State would have to pay when there was no showing of a State violation to be unfair.

Patrick Leahy

But -- thank you, but now my question is, do you feel that the Court's criticism of you in your role as Attorney General was unfair?

John Ashcroft

Well, would you mind -- this is 20-some years ago.

Patrick Leahy

"The court can draw only one conclusion: the State has as a matter of deliberate policy decided to defy the authority of this court." Would you consider that unfair?

John Ashcroft

Patrick Leahy

Now, on Dr. David Satcher, you opposed his nomination to be our Surgeon General, even though the Senate eventually approved him. In your speech, you said Dr. Satcher says he has a mainstream approach, he is going to pursue consensus, but then you went on to say that you didn't believe that. You told the Senate that he was a person of incredibly strong medical credentials in terms of his expertise and his capacity, but you said the United States has participated in confirming nominations and ratifying proposals without looking carefully at the ethics involved or the guise of being challenged. So your opposition to Dr. Satcher by your own statement was not based on his professional qualifications. Indeed, it is fair to say that applying an Ashcroft standard, you were articulating as a U.S. Senator that you were going to oppose a nominee whom you believed to be "out of step with the mainstream of America," to use the words you used in your speech.

Patrick Leahy

John Ashcroft

Mr. Chairman, I am pleased to have the answer to -- the opportunity to express my concerns here.

John Ashcroft

Dr. David Satcher supported a number of activities that I thought were inconsistent with the ethical obligations of a medical doctor and physician, particularly the Surgeon General, because I think the Surgeon General is an individual to whom America must look for guidance in terms of not just technical expertise, but the kind of ethics that ought to accompany people who have life-and-death decisionmaking in their hands. We all know how important the medical profession is.

Patrick Leahy

And you disagreed with those, his ethics and values in that?

John Ashcroft

For example, he supported an AIDS study on pregnant women in Africa where some patients were given placebos, even though a treatment existed to limit transmission of AIDS from the mother to the child.

John Ashcroft

This would not be -- in my understanding, this would not be an acceptable -- this would not be an acceptable strategy for a study in the United States, but he was willing to support the study under those terms in Africa.

Patrick Leahy

So --

John Ashcroft

That was a matter of deep concern to me.

John Ashcroft

Let me, with all -- if I might.

Patrick Leahy

He lobbied Congress to continue an anonymous study testing newborn infants' blood for the AIDS virus without informing the mother if the test was positive.

John Ashcroft

John Ashcroft

Now, I have real problems with a situation where someone wants to be the Surgeon General of the United States, wants to learn about whether or not there is AIDS present in a medical situation and not tell the people involved about the AIDS virus. This is a matter of deep concern to me.

John Ashcroft

The idea of sending fatally infected babies home with their unwitting mothers, even after a treatment had been identified for AIDS, to me was an idea that was unacceptable for an individual who wanted to be the leader in terms of the medical community and a role model in the United States. It was on those grounds that I made the decision.

John Ashcroft

Now, it's my decision, and I am not trying to duck responsibility for the decision, but those are the facts as I understood them and that is the reason I made the decision.

Patrick Leahy

So it would be fair to say you disagreed with his ethical choices and his values, and you thought you should vote against him because of that.

John Ashcroft

I think it is fair to say that I believed he violated the ethical values that are characteristic --

Patrick Leahy

I am not trying to parse words. I just want to make sure I understand --

John Ashcroft

It was a shortfall in his --

John Ashcroft

Chairman Leahy [continuing]. Particularly the Ashcroft standard.

John Ashcroft

Senator Ashcroft [continuing]. Adherence to ethical values of the American medical community that I think were --

Patrick Leahy

And because you disagreed with what you saw as his ethics and values, you voted against him. I am not trying to place words in your mouth. I want to make sure I understand.

John Ashcroft

Well, then maybe --

Patrick Leahy

I am trying to give you the fairest --

John Ashcroft

Well, maybe if you would let me state my words, then you don't have to worry --

Patrick Leahy

Senator Ashcroft [continuing]. About placing words in my mouth. I believe that his willingness to accept a standard for medical research in Africa on African women that would not be acceptable in the United States was an ethical lapse that was very important.

Patrick Leahy

Patrick Leahy

I second believed his willingness to send AIDS-infected babies home with their mothers without telling their mothers about the infection of the children was another ethical problem that was very serious.

Patrick Leahy

Based on both standards, which I believe are less than acceptable standards in the medical community in this country, I voted against him.

Patrick Leahy

That is what I was trying to get you to say. Thank you.

John Ashcroft

I'm sorry.

Patrick Leahy

Maybe we were speaking past each other, but thank you.

Patrick Leahy

Senator Ashcroft, the principal argument raised against your nomination by some people is because of your firmly held personal beliefs which happen not to be consistent with the views of the abortion rights groups, the People for the American Way, and other similar interest groups, that you will not enforce the laws of the land as Attorney General. That seems to be the argument.

Orrin G. Hatch

Well, thank you.

Orrin G. Hatch

Orrin G. Hatch

Now, your record, however, which the special interest groups seem to ignore, seems to provide clear evidence to the contrary. For example, as Attorney General of the State of Missouri, you repeatedly issued legal opinions regarding how a particular statute should be interpreted and enforced. Time and again, Senator, your record reflects your dedication to enforcing the law regardless of your particular views in areas like the environment, abortion, guns, religion, and race.

Orrin G. Hatch

Let me give just a couple of examples, and you gave some other examples in your opening remarks.

Orrin G. Hatch

You issued an opinion in 1981 that the Missouri Division of Health could not release information to the public on the number of abortions performed by particular hospitals. You determined that the State legislature made clear its intent that such reports remain confidential and be used only for statistical purposes.

Orrin G. Hatch

You also determined that in order to protect the patient client privilege, access to health data maintained by the Division of Health could only be subject to review by public health officers, something that people in the right-to-life community disagreed with you on. That is correct, isn't it?

John Ashcroft

It is correct.

Orrin G. Hatch

You also, in Attorney General Opinion No. 50 -- I am just going to mention two. There are all kinds of these.

John Ashcroft

Well, don't ask me to quote them.

Orrin G. Hatch

I won't ask you to quote them.

John Ashcroft

We had about 800 or more.

Orrin G. Hatch

Let me see what I can do. In Attorney General Opinion No. 50, dated March 2, 1977, Attorney General Ashcroft issued an opinion which interpreted State law to prohibit prosecuting attorneys from carrying concealed weapons even while engaged in the discharge of their official duties. Attorney General Ashcroft reached this opinion despite the fact that some prosecuting attorneys conducted their own investigations and as a result faced dangerous situations. That is true, too, isn't it?

John Ashcroft

Yes, sir, it is true. And it may not have been my personal judgment that their safety was best regarded by that, but the law was --

Orrin G. Hatch

That is what the law said, and so you enforced it. I have to admit I don't agree with that law either. They ought to be able to protect themselves.

Orrin G. Hatch

I could go on and on with further examples, but I want to hear from you. The special interest groups who have sharply attacked you seem to ignore these instances where you have interpreted the laws as written despite your personal beliefs.

Orrin G. Hatch

Now, if confirmed as Attorney General of the United States, will you enforce the laws of this land irrespective of your personal beliefs?

John Ashcroft

I will. And I think I should clarify that just a little bit. My personal belief, my primary personal belief is that the law is supreme, that I don't place myself above the law, and I shouldn't place myself above the law. So it would violate my beliefs to do it.

John Ashcroft

So I spent 24 years in elective public offices as -- the auditor's office in Missouri is really a compliance office. We audit not only for financial integrity, but for compliance with legal mandates to the agencies. I spent 2 years there as State auditor and then the 8 years as Attorney General and 8 years as Governor, and there are other things you do as Governor, but you also are a law enforcement individual. The executive branch does that. And most of my time in government has been in enforcement. And I'm pleased to say that I have enforced the law faithfully to the best of my ability in those settings.

Orrin G. Hatch

With regard to Mr. Bill Lann Lee, I happen to like Mr. Lee, but I voted against him, not because I wouldn't have supported him for any number of other positions -- I would have because he is a sincerely dedicated, decent, honorable man. But when he appeared before the Committee, I have to say that one of the problems that I had at that particular time was that I was concerned that, because of his prior background, he would use consent decrees to force consent decrees on local municipalities, cities, counties, and other governments by bringing very expensive lawsuits that would cost millions of dollars to defend where they would have to cave in to consent decrees that would require quotas that were really wrong under the Adarand and other decisions by the Supreme Court.

Orrin G. Hatch

I can remember that while I have the highest personal regard for Mr. Lee's accomplishments when he was in the private sector, I was extremely concerned about his interpretation of civil rights laws. His lifetime work was devoted to preserving constitutionally suspect, race-conscious public policies that sort and divide citizens by race.

Orrin G. Hatch

For instance, when Mr. Lee appeared before the Committee, he interpreted the Adarand v. Pena case to mean that racial preferences are permitted if "conducted in a limited and measured manner."

Orrin G. Hatch

Now, as I noted on the floor of the Senate, his statement misstated the Court's fundamental holding in such programs that are presumptively unconstitutional. And, unfortunately, I have to say that his recent record indicates that is what he has been doing to a large degree, or at least to a significant degree in his position in the Justice Department.

Orrin G. Hatch

So there was a legitimate reason to vote against Bill Lann Lee, even though I think all of us would admit he is a nice person and probably could fill any number of other positions in government.

Orrin G. Hatch

I suspect that that is the reason you voted against him.

John Ashcroft

Well --

Orrin G. Hatch

And I can see why others might have voted for him. But the fact is I had to do what I thought was the law. What about you?

John Ashcroft

Well, frankly, I struggled to say that perhaps earlier, not as effectively as you have just said it or as you said it on the floor. When he indicated that the test of whether a program would survive strict scrutiny was that it be limited and measured, he really basically was expanding the test substantially.

John Ashcroft

The district court on remand in that case said, and I quote, "It is difficult to envisage a race-based classification that is narrowly tailored." But Mr. Lee, when asked if he could identify a single racial preference program that was constitutionally suspect, could only identify one out of all the programs. I think the key, though, is the material that you presented at the time, which I found persuasive, and his statement of a test for programs, which was just monumentally different than the test provided for by the Court in the Adarand case.

Orrin G. Hatch

Well, it has been mentioned that you oppose certain aspects of the Federal court decrees surrounding the desegregation of schools in Kansas City. Well, Senator Ashcroft, isn't it true that in Missouri v. Jenkins, which is the poster child case for what many think is judicial activism, that the Supreme Court found that the district court had exceeded its authority by ordering remedies beyond its power? Was your position not vindicated by the Supreme Court after some 18 years of litigation?

John Ashcroft

Well, very frankly, the Jenkins case was a 5-4 case.

Orrin G. Hatch

And it was a case in which the judge imposing a tax was upheld in imposing the tax.

John Ashcroft

Orrin G. Hatch

It wasn't the Congress that imposed the tax. It was the judge.

John Ashcroft

Nor was it the State legislature or the city council.

Orrin G. Hatch

That is right. So it was a legitimate argument.

John Ashcroft

Obviously it's a legitimate argument, and I hope these hearings will allow me to clarify the fact that a State Attorney General has a responsibility to defend the State when it is asked by other parties to open its treasury to fund one thing or another. The situation in Kansas City, at the order of the Federal district court judge, was tragic in terms of the amount of money spent, and really, frankly, this hadn't become -- this really wasn't that much of a partisan issue. It became clear that this was not helping children, but it was a very, very serious diversion of the State's resources in a way which made difficult the achievement of other objectives.

John Ashcroft

For example, busing had strong opponents in Missouri, Democrat and Republican, black and white. Freeman Bosley, St. Louis' first African-American mayor, opposed forced busing, as did Democrat State Attorney General Jay Nixon. This forced busing that was opposed was not, on their part or on my part, an opposition to integration. It was an opposition to a counter-productive, inappropriate effort to impose on the State transportation of students to and from at great expense and at little benefit educationally to the students.

Orrin G. Hatch

Well, I have heard some arguments against you because of your firmly held religious beliefs. In fact, I have seen it over and over in the press in this country. When Vice President Gore selected our esteemed colleague, Joseph Lieberman, to be his running mate, many individuals and organizations supported that choice and applauded Senator Lieberman for his strong religious beliefs. I have to say I felt the same way.

Orrin G. Hatch

Unfortunately, many left-wing groups have not been as supportive of your religious beliefs and convictions, almost like it is OK for a liberal but it is not OK for somebody who is conservative.

Orrin G. Hatch

Personally, I as a Christian am very unsettled by the different treatment accorded you and Senator Lieberman. I think it is wrong.

Orrin G. Hatch

Now, the job of the Attorney General of the United States is an extremely important job, and it is to enforce the laws enacted by Congress. The only issue for me is the manner in which you execute the job or will execute the job. It doesn't matter to me whether you are a Christian, Muslim, Buddhist, whatever, or an atheist or agnostic. I am sure that goes -- I hope I am sure that goes to the rest of our fellow Senators. In fact, the Constitution of the United States specifically forbids religious qualifications for office.

Orrin G. Hatch

Now, having gone through that type of, I think, offensive criticism, which is continuing right up to today, is there anything in your religious beliefs that would impair you from faithfully and fully fulfilling your responsibilities as Attorney General of the United States?

John Ashcroft

Well, I don't believe it's appropriate to have a test based on one's religion for a job. I think Article V of the Constitution makes that clear.

John Ashcroft

In examining my understanding and my commitment and my faith heritage, I'd have to say that my faith heritage compels me to enforce the law and abide by the law rather than to violate the law. And if in some measure somehow I were to encounter a situation where the two came into conflict so that I could not respond to this faith heritage which requires me to enforce the law, then I would have to resign. I do not believe that to be the case.

John Ashcroft

May I just say a word about this? America has struggled in this respect for quite some time, and people who come from different religious and faith perspectives have emerged at one time and another, and when they have, there have been questions about this. This is not new.

John Ashcroft

Before I was old enough to vote, but when I was old enough to be very active in watching elections in 1960, the first person became President of the United States from a Catholic perspective. In my part of the country, there were people who thought he will not be free, he will have to do whatever the Pope tells him to do, he will be a client of a foreign individual. You know, I heard that talk.

John Ashcroft

But America got by that talk, and I think it's good that we did. And my own view is that, yes, people won't understand different kinds of individuals from time to time. Some people -- most people hailed, as I did, the elevation to national candidate status of my college classmate and former colleague here in the U.S. Senate, Joe Lieberman. We need more people like Joe Lieberman in public office, not fewer people like Joe Lieberman in public office.

John Ashcroft

But I was the first person from my faith denomination to be elected to a statewide public office as Attorney General, and I was the first Governor ever from my denomination. I was the first Senator from my denomination. I understand these things, and I think this is something we work our way through as Americans, and we're going to come to an understanding that well-intentioned people of good faith, when they raise their hand and take an oath to support the Constitution and enforce the law, they do it.

John Ashcroft

And as I look back across America and this heritage -- and it's been focused on different kinds of people at different times -- I frankly don't see that we've been -- our faith has been misplaced. As I look across, when the President, we had our first Catholic President, we didn't suffer.

John Ashcroft

You know, so I think this is something we're going to work -- we will work our way through.

Orrin G. Hatch

My time is just about up. Let me just ask you one last question. You have publicly stated your agreement with the law of Adarand which states that all racial classifications made by the government must be able to withstand strict scrutiny. You were also a sponsor of the Civil Rights Act of 1997. This Civil Rights Act basically seeks to implement the Supreme Court's holding in Adarand with respect to Federal racial classifications. The Civil Rights Act of 1997 does state that affirmative action such as encouraging qualified women and minorities to apply for government contracts and employment would not be affected.

Orrin G. Hatch

Now, what sort of affirmative action programs would you support if confirmed? And what would be your plans for the Civil Rights Division? My time is up.

John Ashcroft

Very frankly, there are lots of ways that are acceptable, and some have been working their way through the courts and I think will be sustained. The President-elect of the United States has identified a series of things that he calls affirmative access. I think those are good ideas. They have been in place now in Texas and in California and in Florida and are making their way in the educational system where access is so very important.

John Ashcroft

We can expand the invitation for people to participate aggressively so that no one is denied the capacity to participate simply because they didn't know about the opportunities. We can work on education, which is the best way for people to have access to achievement, a wide variety of things. We can size government opportunities so that people can bid who don't have the mega strength of the big old-time contractors but some new entrants into the marketplace. These are all policy decisions that I believe this next administration, President-elect Bush is eager to consider. And certainly the affirmative access that he's described is something that I think the entire country would be well served to work on.

Orrin G. Hatch

Thank you, Senator Ashcroft.

Patrick Leahy

I just would not want to leave one of the questions of my friend from Utah give the wrong impression to the people here. I just want to make it very clear. Have you heard any Senator, Republican or Democrat, suggest that there should be a religious test on your confirmation?

John Ashcroft

No Senator has said I will test you, but a number of Senators have said, Will your religion keep you from being able to perform your duties in office?

Patrick Leahy

I'm amazed at that.

John Ashcroft

Pardon?

Patrick Leahy

I said I'm amazed at that.

John Ashcroft

Well, I don't -- I understand. And I accept the opportunity to say with clarity that not only will I represent that I will enforce the law, but there is some record here of my 2 years as auditor, 8 years as Attorney General, 8 years in the Governor's office, that when the law is clear and decided, that I enforce the law.

Patrick Leahy

Senator Kennedy?

Joe Kennedy III

If we could, Senator Ashcroft, come back to the St. Louis situation, let me just spell out very briefly, as you remember, but just so that we have the common understanding. In the 1970's, more than 20 years after the Brown v. Board of Education, St. Louis still maintained a segregated school system. The Court stepped in and ruled that the State of Missouri and the St. Louis School Board were jointly responsible for violating the Constitution by creating and maintaining segregated and grossly unequal schools. The Court ruled that the State had maintained an elaborate set of laws to enforce segregation. The State law even forced black children who lived in the suburbs and in white city neighborhoods to be bused to all-black inner-city schools. According to the Court, the State had completely abdicated its constitutional duty to desegregate the schools.

Joe Kennedy III

Joe Kennedy III

You disagreed with that finding, but despite your repeated appeals, requests for injunctions, and three denials of review by the Supreme Court over a 4-year period, the final ruling of the courts was not changed. So you had your chance in the courts to make the case that you've just made here and the courts rejected it each time.

Joe Kennedy III

Now, let me just continue, and others will get --

John Ashcroft

It's your hearing, Senator.

Joe Kennedy III

Now, the city of St. Louis, its schools, and surrounding 23 county districts all accepted the ruling. They negotiated a model desegregation plan relying on voluntary public school choice. Black students from city schools could volunteer to transfer to white suburban schools. White suburban students would have the opportunity to transfer to magnet schools run by the city. In fact, the plan has been a lifeline for tens of thousands of students with graduation rates that are consistently twice as high for the transfer students, more of them going on to college and other 11,000 students are still using it today -- including about 900 suburban students in the city magnet schools.

Joe Kennedy III

Now, given the voluntary nature of the desegregation plan and the fact that the city and county school districts all agreed to it, how do you justify your relentless opposition to voluntary school desegregation and sort your scorched-earth legal strategy to try to block it?

John Ashcroft

Senator Kennedy, first of all, the litany of charges that were made about the State's activities included a rather loose definition of things that the State had done prior to Brown v. Board of Education. Virtually none of the offensive activities described in what you charged happened in the State after Brown v. Board of Education. And as a matter of fact, most of them had been eliminated far before Brown v. Board of Education.

John Ashcroft

Second, in saying that the city maintained a segregated school system into the 1970's is simply a way of saying that after Brown v. Board of Education, when citizens started to flee the city and move to the county -- and you'll know that St. Louis for a number of decades now has been a place that has lost more population than virtually any other city as people moved into the county -- the schools, as people changed their location, began to be more intensely segregated. That was after the rules of segregation had been lifted, and it was not a consequence of any State activity.

John Ashcroft

Then I would just simply say that I think it's unfair to call the program totally voluntary and to suggest that we opposed a voluntary program, when the thing was that the State was going to have to pay for everything people volunteered to do.

John Ashcroft

Now, the situation was basically this: The county school districts agreed with the city school districts that they could confess judgment and get a lot of money from the State of Missouri by saying if we'll just say that we'll do this voluntary plan, the State will have to pay for the situation. So you had a situation something like this, and I don't have all the material that you all have, but let me try and re- create it from my memory.

Joe Kennedy III

I want to try and -- I want to give you a fair chance, but we --

John Ashcroft

Well, you --

Joe Kennedy III

Thank you for your fairness, because when the machine gun of charges comes out, I want to try and respond to all of the lead.

John Ashcroft

Joe Kennedy III

Earlier, you said the State wasn't involved. Well, now let me just read to you, in 1980, in Adams v. United States, the city board and the State were held jointly responsible for maintaining a segregated school system. My question is: At what point, Senator Ashcroft, were you going to say or do something about the fact that those kids were going to lousy schools? You were there as Attorney General, you were there as Governor, and you did virtually nothing about it. And a new Governor came in, Mel Carnahan, and resolved that issue. You used every kind of device to oppose it. The Economist magazine, which is not a liberal magazine, said, "The campaign" -- which you were involved in "quickly degenerated in 1984" -- at a time when this issue was still before you -- "into a contest over who was most opposed to the plan for voluntary racial desegregation of St. Louis' Schools. Mr. McNary claimed that Mr. Ashcroft had not done enough to defeat the plan in court. Mr. Ashcroft countered that Mr. McNary was a closet supporter of racial integration. Both ran openly bigoted advertisements on television."

Joe Kennedy III

Professor Gary Orfield, a consultant for the court in the St. Louis case and a leading expert on desegregation who frequency testifies against desegregation plans described you as being "an unrelenting opponent of doing anything in St. Louis." He said that you "had no positive vision, constantly stirred up racial divisions over this question."

Joe Kennedy III

Finally, rather than provide the conciliatory leadership, once you were governor, a 1990 judicial order described the recent State's filings as "extremely antagonistic" and said the State was "ignoring the real objectives of this case -- a better education for city students -- to personally embark on a litigious pursuit of righteousness.

Joe Kennedy III

Now, that's a pretty tough record. Where in your list of priorities were the rights and the interests of those black students who were trying to get a decent education? We've just heard from you about the cost, and how you had a responsibility as an Attorney General to protect the taxpayer. What about the interests of those black students and the fact that those courts repeatedly, time and time again, said that you failed to even offer an alternative? Did you offer an alternative?

John Ashcroft

Now may I respond?

Joe Kennedy III

Thank you. In all of the cases where the court made an order, I followed the order, both as Attorney General and as Governor. It was my judgment that when the law settled and spoken that the law should be obeyed.

John Ashcroft

John Ashcroft

At one point I had to detail the Deputy Attorney General of the State of Missouri to the State treasurer's office in order to urge the State treasurer to write the check, and the treasurer wrote the check. His name has been used in this hearing, but I won't use it. But it was because I explained to him that when the court spoke, the State had to respond and obey the law.

John Ashcroft

Now, the framework for the system was that the State was to pay the city for the students who left and the State was to pay again in the county for the students who had left and gone out there. It was not a way to integrate the city schools. The facts which you specify show that the brightest students left the city, leaving the students in those schools behind with fewer people aspiring to college graduation and going on further for education, not improving those schools.

John Ashcroft

I'm pleased to respond to your question about my priority for education. During my time as Governor, funding for education in the State of Missouri went up about 70 percent. The vast majority of all State resources that were new and available went to education because I believe in education.

John Ashcroft

In Missouri v. Jenkins, the case in Kansas City --

Joe Kennedy III

Could we get on -- I don't think we've got --

Orrin G. Hatch

Let him answer the question.

Joe Kennedy III

The question wasn't about Kansas City. I asked about St. Louis.

John Ashcroft

Fine.

Joe Kennedy III

But if he wants to talk about Kansas City --

John Ashcroft

I would like to talk about Kansas City, but it's not -- I'd rather answer your question than talk about Kansas City.

Joe Kennedy III

That isn't the question, but if you want to talk about it --

John Ashcroft

Well, I'll just give you an idea --

Jeff Sessions

You characterized his interest in education, Senator Kennedy --

Joe Kennedy III

Well, that isn't the --

Jeff Sessions

You suggested he didn't care --

Orrin G. Hatch

You're accusing him of not --

Patrick Leahy

Gentlemen, gentlemen.

Orrin G. Hatch

Let him answer the question.

Patrick Leahy

First I would note that whatever questions are asked, if the witness feels that he's not given time to answer all the questions, he will be given time, as will Senators be given time to do follow-up questions.

Joe Kennedy III

Well, I had one other area to cover, but whatever you want to do, John.

John Ashcroft

Well, you're the Senator.

Joe Kennedy III

Well, you're the --

John Ashcroft

You know, I look forward to working with this Committee upon confirmation. I do. And I don't know when there was last an Attorney General that had previously served as a member of this Committee. And, frankly, I think we can work together, and I want to, and I don't want any rancor to characterize our relationship. And I'm very pleased to defer.

Joe Kennedy III

Let me just go on to the questions of voter registration and your vetoes on voter registration. We talked about this. You know, obviously we have learned in this Presidential campaign every vote does count, and obviously the procedures in Florida and across the Nation were plagued by inequities that often resulted in disenfranchisement of poor minorities. The Justice Department is conducting an investigation into whether there were any voting irregularities that occurred in Florida violating the Federal Voting Rights Act. So, if confirmed, you will have a responsibility for completing the investigation and bringing suit if any violations are found.

Joe Kennedy III

Now, considering your actions as Governor of Missouri, I'm concerned about where you might go with this. Now, let me mention this. As Governor, you appointed the election boards in both St. Louis County and St. Louis City. The County, which surrounds much of the city is relatively affluent, 86 percent white, and votes heavily Republican. The city is poorer and 48 percent black, and votes heavily Democratic.

Joe Kennedy III

Like other communities across the State, the county election board had a standard procedure for training volunteers from non-partisan groups like the League of Women Voters to assist in voter registration. And according to press reports, the county trained as many as 1,500 volunteers. But the number of trained volunteers in the city was zero, because your appointed city board refused to follow the standard practice used in the county and throughout the rest of the State. As a result the county had a voter registration rate higher than the State average and considerably higher than the city.

Joe Kennedy III

Concerned about this obvious disparity, the State legislature passed bills in 1988 and 1989 to require the city to use the same training procedures as the county and the rest of the State. On both occasions, you vetoed these bills. In 1988, you claimed it was unfair to impose this procedure just on the city of St Louis. In 1989, the legislature responded by passing a bill applying the procedure to the entire State. But you vetoed it again. And you cited concerns about voter fraud, even though the Republican director of elections in the county was quoted as saying, "It's worked well here. . .I don't know why it wouldn't also work well in the city."

Joe Kennedy III

That makes sense. The only difference between the county and city is that the city is poorer, more heavily African- American and votes Democratic.

Joe Kennedy III

Rather than working to expand the right to vote, you and your appointed election board in the city did all you could to block increased voter registration in the city. The results of your stonewalling tactics are clear. By the time you left the Governor's mansion, the city of St. Louis had the lowest voting registration rate in the State, 15 percent lower than the rate in St. Louis County. Eight years later, thanks to the passage of the Federal Motor voter law and the efforts of the late Governor Carnahan, the voter registration rate in St. Louis city has increased dramatically.

Joe Kennedy III

Why did you feel that you didn't have to provide the same kind of registrars in the city as you did in the county and as they did in the rest of the State, particularly when groups indicated their willingness to provide those services?

John Ashcroft

Well, thank you for the question, Senator Kennedy, and let me just say that I am concerned that all Americans have the opportunity to vote. I'm committed to the integrity of the ballot box. I know what it means to individuals who are deprived of the opportunity to vote, and I know what it means to candidates who have been the subject of elections where the integrity of the ballot box has been violated. I have personal experience in that respect.

John Ashcroft

I voted and vetoed -- pardon me, I voted a number of bills as Governor, and, frankly, I don't say that I can remember all the details of all of them. Accordingly, I reviewed my veto message and recalled that I was urged to veto these bills by the responsible local election officials. I also appeared to anticipate the Supreme Court's recent decision as I expressed a concern that voting procedures be unified statewide. I would like to read my relatively short veto statements from the two relevant bills, and these are statements which I made when I was Governor, and it's quite some time --

Joe Kennedy III

And if you could elaborate on the local officials who urged you to veto them and the reason why they did that. If you could add that, I would appreciate it.

John Ashcroft

Conference Committee substitute for House bill 1333, I believe it is, is vetoed and not approved for the following reasons: The Comprehensive Election Act of 1977 was intended to simplify, clarify, and harmonize the laws governing elections. Section 115.003 Revised Statues of Missouri 1988, the General Assembly has directed that the Act be construed and applied so as to accomplish this purpose: The few amendments to this law since 1977 have been enacted only as necessary to further statewide policy goals. Election bills approved by the General Assembly this year continue this trend by standardizing voter registration and other election procedures.

John Ashcroft

Conference Committee substitute for House bill 1333 stands in marked contrast to the overall trend of our election laws. It would single out one election authority and mandate for that one authority that certain procedures be followed. I see no compelling reason to impose this special requirement on the St. Louis Election Board. There are more than 150 permanent registrationsites spread throughout the city of St. Louis. Each of these sites is manned by bipartisan, board-appointed registrars, and is in a public facility. Before every election, the board opens an additional 84 special registrationsites manned by bipartisan registration teams at places such as shopping centers, churches, and union halls. The success of the St. Louis Election Board in promoting voter registration is evidenced by the fact that the city has a registration rate of 73 percent compared to the national average of 69 percent.

John Ashcroft

I join with the proponents of this bill in encouraging the St. Louis Board of Election Commissioners to review its present policy and to work to ensure that every resident has a clear opportunity to register to vote. But even as we work to increase voter registration, we must preserve the right of the voters to participate in fair elections.

John Ashcroft

The bipartisan St. Louis County Board of Election Commissioners, St. Louis Board of Aldermen President Tom Villa, and St. Louis Circuit Attorney George Peach have expressed concerns about the impact of this bill on the democratic process and urged me to veto it.

John Ashcroft

I might add that Tom Villa was a noted Democratic leader in the State of Missouri from the city of St. Louis. The Villa family had a historic sort of reputation. I don't know whether some of you close to St. Louis will remember that. St. Louis Circuit Attorney George Peach was a Democrat who was the prosecutor in the St. Louis area. So we had -- a bipartisan county election board said this is not good, this is not right. You had the Democrat circuit attorney saying: I have reservations about this, this shouldn't be done. You have the St. Louis Board of Aldermen President, an almost totally Democrat organization -- the Board of Aldermen, city of St. Louis, is about as a Democrat as the Democratic National Committee. They all urged me to veto this bill.

John Ashcroft

Now, I do think that when you look at the recent Supreme Court rulings requiring -- pushing us more toward uniformity, that it's important to understand that creating and carving out special responsibilities in a variety of settings is something we shouldn't do. The people of St. Louis, I went on to say, have an absolute and fundamental right to open, fair, and non- partisan elections. My veto of this bill today will protect that right. For the above and foregoing reasons, Conference Committee substitute for House bill 1333 is returned and not approved.

John Ashcroft

The second veto message -- I'd be happy to read another one.

Joe Kennedy III

Mr. Chairman, it's not necessary.

John Ashcroft

This is --

Joe Kennedy III

Senator, if I could just add and get your response. You vetoed it because it was special legislation for St. Louis. Then the next year the legislature said, OK, because you haven't done anything in St. Louis, we'll apply it statewide. And then you vetoed that as well. That's what I can't understand. I can see you vetoing, it saying that it was special legislation, so we won't do it for St. Louis because it's special. Now you've just mentioned the Supreme Court wants uniformity, the State legislature said, OK, let's get uniformity, and you vetoed that as well. If you could address that.

John Ashcroft

Yes. Thank you very much. It just takes a lot longer to answer these charges than it does to make them, and I apologize for that.

Patrick Leahy

Gentlemen, just a moment. I want him to answer that, but I also point out the witness said that sometimes the questions come in a machine-gun fashion, I think was his expression. I can assure you the Chair will make sure that you are given time to answer all the questions, and when you review the transcript, if there's further answers you want, you will be given the time to respond to that. And, of course, the Senator asking the question will get follow-up. But I don't want any implication being given that you would not have a chance to answer all the questions asked.

John Ashcroft

I appreciate that very much, Mr. Chairman, and I apologize if any of my remarks would indicate that you wouldn't fairly give me the opportunity to respond.

John Ashcroft

This is the veto message from the next year: House Committee substitute for House bill 200 is vetoed and not approved for the following reasons: The bill would require election authorities to permit, quote, any recognized non- partisan civic organization, political, fraternal, religious, or service organization interested in voter registration and education to conduct registration at any reasonable place selected by the organization. The election authority is required to have a deputy registration official present at the place. The bill provides that these deputies may be volunteers. I encourage these deputies may be volunteers. I encourage all qualified Missourians to register and vote in elections. I also encourage election authorities to improve voter registration efforts by keeping registration offices open for longer hours and by conducting registration drives at special registrationsites.

John Ashcroft

As I noted last year in St. Louis, the success of the St. Louis election board is apparent from the fact that the city has a registration rate of 73 percent compared to the national average of 69 percent. Efforts to promote voter registration must be balanced with the need to ensure that the voters participate in fair elections. This bill would tie the hands of election authorities and give private organizations a virtually unbridled right to add names to State voter registration roles.

John Ashcroft

As noted in a St. Louis Post Dispatch editorial, there is no overwhelming reason to allow an individual group of any political persuasion to register people. With the numerous instances of voter fraud that the city has experienced in recent years, election officials should be cautious about their procedures.

John Ashcroft

The registration apparatus must be available to everyone, but it also must be protected jealously to prevent its abuse.

John Ashcroft

St. Louis Post Dispatch, "Keeping Registration Fair." Election authorities are free to participate. August 28th. This was an editorial. I don't believe this editorial was about this specific measure. I don't want to create that impression. If it is about it, it would be fine.

John Ashcroft

Election authorities are free to participate with private organizations now to conduct voter registration. Given the overriding need to promote honesty and integrity in the process, I see no compelling reason to require that they do so in every instance in which a request is made. For the above and foregoing reasons, House Committee substitute for House bill 200 is returned and not approved. Respectfully submitted, signed, John Ashcroft, Governor.

Patrick Leahy

Senator Thurmond, your turn.

J. Thurmond

When outgoing Attorney General Janet Reno appeared before this Committee for confirmation, I expressed concerns about her opposition to the death penalty, but I still supported her. Those views did not prevent her from being confirmed.

J. Thurmond

Do you think most Attorneys General have had to enforce some law that they did not personally support?

John Ashcroft

Senator, I am virtually sure that everyone who has served in the Attorney General's office has had to impose or enforce laws that he or she would not personally support. The definition of "personal support" is almost inconsistent with laws because laws are compromises of what people decide to do in the legislative process where we have a give-and-take in terms of what is finally achieved. So very seldom is there any law that is identical to the way any of us would write it completely.

John Ashcroft

Law enforcement officers uniformly, not just those in uniform, but those uniformly across the board, I think always have to enforce laws that they wouldn't personally have written.

J. Thurmond

During much of the Clinton administration, a number of gun prosecutions declined. For example, Project Trigger Lock prosecutions for using a gun to commit a felony dropped 46 percent from 1992 to 1998. As Attorney General, will you expand successful gun prosecution initiatives like Project Exile and make enforcing gun laws a priority?

John Ashcroft

I would hope that we would be able to more effectively enforce the laws relating to guns.

John Ashcroft

From the data that I have seen out of Project Exile and other efforts around the country, we have a far greater and more dramatic impact on violent crime by enforcing gun laws than we do in many other efforts that we make to try and improve the personal security and safety of our citizens.

John Ashcroft

As a matter of fact, in the last couple of years, I have sought additional appropriations when a member of the Senate to fund a similar program in St. Louis, a program which I think is entitled Project Cease Fire, but it is similarly a focus on saying to those who use guns in the commission of a crime, you can't do that with impunity, and we will make sure that if you use a gun in the commission of a crime, you will regret it.

John Ashcroft

In Project Exile, the remediation in the rates of crime was very, very dramatic, and it seems to be a promising program that ought to be explored further. I think enforcement of gun laws holds great promise.

John Ashcroft

And incidentally, I might add that as the Attorney General of the United States, obviously I would be interested in advancing the agenda of the President, when possible, and he has stated clearly his intention to have more vigorous and energetic prosecution of gun crime.

J. Thurmond

As a Senator, you were very dedicated to the war on drugs. For example, you successfully led the fight to pass major drug legislation to combat the methamphetamine epidemic.

J. Thurmond

As Attorney General, will you continue that commitment to fighting illegal drugs?

John Ashcroft

Well, Senator, I think the illegal drugs are a mark and a stain on America, but they are a mark against the young people of this country that makes very difficult their success in the future, and I would hope that I would have an opportunity to have an energetic enforcement of the drug laws in this country in a way which would curtail drug use, and I would hope we would be able to lead in such a way as to make it possible for young people to look to national officials and to the kind of atmosphere we create as one that rejects drug use.

John Ashcroft

In the methamphetamine laws, which I had the privilege of working closely with members of this Committee on, including Senator Biden and Senator Feinstein, we did a couple of things that were important. We took methamphetamine which people had not taken seriously, and we put very serious penalties into the law. I think it was important that we put penalties in the law that were on a parity with the penalties for cocaine because too often people had thought hat methamphetamine was not an important or challenging thing and we needed to have an opportunity to make sure that we signaled our disapproval and the danger that these dangerous drugs really present to our young people.

J. Thurmond

A great deal of attention is focussed on the lives of criminals, but we do not hear as much about the rights of victims. Nevertheless, you have been a leader for victims' rights. Should crime victims be a top concern for the Justice Department?

John Ashcroft

Indeed, they should.

John Ashcroft

I had the privilege of being involved in signing victims' rights legislation in the State of Missouri, and I was eager to find a way to have a national program for victims' rights legislation because too often technical problems relating to minor conflicts between the Federal system and the State system made impossible an effective use of the States' victims' rights legislation to protect the interests of individuals who have been victims of crime.

J. Thurmond

You have been endorsed by numerous law enforcement organizations, including the Fraternal Order of Police, the National Association of Chiefs of Police and the National Sheriffs' Association. Is it important for the Attorney General to work closely with State and local law enforcement, and including rural law enforcement?

John Ashcroft

Well, it certainly is important. One of the things about methamphetamine that struck me in the State of Missouri is that it tended to be a rural drug. It wasn't as focussed at our city centers where drugs like cocaine were prevalent, but in the out-state portions of Missouri, the methamphetamine production in a variety of labs -- and I am sorry to say that Missouri is second only to California in terms of meth labs that were taken down -- exploded on our State. There were two meth labs taken down in 1992. There were about a thousand taken down last year in the State, and many more.

John Ashcroft

I talked to one county sheriff who was in what we call a collar county, around St. Louis, where he said that his sheriffs department would take down 200 meth labs in that one county during the year, and at the same time I met with that sheriff, there were five or six small city police chiefs from that same county, and they said they would break down another 100. So there you have one county with 300 meth labs in a single year. It is a very serious problem and it is in rural America, and our ability to provide assistance through HIDTAs and other programs in the Justice Department can help curtail this very serious threat.

Patrick Leahy

I have put in the record a number of statements of others so that we could have a chance -- or so the witness can have a chance if he wishes to add to his answers to do so in the transcript, so those who asked a question would have also a chance to see that.

Patrick Leahy

We will recess now. We will reconvene in the Senate Caucus Room in the Russell Building, the third floor of the Russell Building tomorrow morning at 10.

Jeff Sessions

Mr. Chairman, we have leave to file a written statement? May I have leave to file a written statement?

Patrick Leahy

Oh, of course. Of course. All Senators will.

Patrick Leahy

We are adjourned.

Patrick Leahy

Senate, Committee on the Judiciary, Washington, DC.

Patrick Leahy

The Committee met, pursuant to notice, at 10:08 a.m., in room SR-325, Russell Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding.

Patrick Leahy

Present: Senators Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, Durbin, Cantwell, Hatch, Thurmond, Grassley, Specter, Kyl, DeWine, Sessions, Smith, and Brownback.

Patrick Leahy

As those who have spent time in the Senate know, it is sort of the luck of the draw where you end up for hearings. Today we are in the historic Senate Caucus Room, the site of so many important Senate hearings. Hearings into the sinking of the Titanic were held here. If you look around this room, you will probably never see another public room anywhere in the country made like this. The McCarthy hearings, a number of hearings of Supreme Court nominations, and others were held here.

Patrick Leahy

Yesterday, we began the hearings with opening statements from nine Republican Senators and seven Democratic Senators. We heard from both Senators from Missouri who introduced Senator Ashcroft and an additional Republican Senator who testified in support of his nomination. We heard the nominee's opening statement and his responses to the beginning round of questions.

Patrick Leahy

Today when we resume, we will begin with Senator Kohl, then go to the distinguished Senator from Iowa. We will try to conclude these opening rounds of questions for the nominee by some time this evening.

Patrick Leahy

Now, I know that a number of Senators have a number of questions and concerns. I want to give the nominee the opportunity to respond to each of these, and we are willing to stay as late tonight as necessary. But it is going to take some cooperation.

Patrick Leahy

I would like to conclude official witnesses today if we can. There are a lot of shifting demands going on, some from the other side. But I also want to make sure -- there was a suggestion yesterday by the nominee that sometimes questions come very rapidly. As I said during the hearing yesterday, if he feels he did not have a chance to fully answer a question, he can answer that for us, and, of course, the Senator asking the question can do a follow-up.

Patrick Leahy

He has also, as any nominee does, an opportunity to correct any answer if he chooses to do so. For example, yesterday Senator Ashcroft testified that the State of Missouri was not a party to the school desegregation litigation in St. Louis and the State had done nothing wrong and there was no showing of a State violation. However, the State had been a party defendant in that litigation since at least 1977, and the courts repeatedly held that the State was legally liable. The Eighth Circuit Court of Appeals noted in 1981, "The State of Missouri vigorously contends that it should have no part in paying for the costs of integration because its action did not violation the Constitution. This contention is wholly without merit. We specifically recognize the causal relationship between the actions of the State of Missouri and the segregation existing in the St. Louis school system."

Patrick Leahy

The next year, in another appeal in that case, the Eighth Circuit wrote that the State had substantially contributed to the segregation of public schools in St. Louis. And in yet another opinion, in another appeal in that case, the Eighth Circuit termed the State "a primary constitutional violator" and noted that the State's constitution and statutes "mandated discrimination against black St. Louis students on the broadest possible basis."

Patrick Leahy

Now, that is my understanding, and I would ask if there is any disagreement with that understanding.

John Ashcroft

I appreciate the opportunity to clarify the situation, which involved the discussion of both the case in St. Louis and some of the case in Kansas City, which outlined and sort of defined the State's involvement in some orders regarding the funding of desegregation plans in both of those communities. And when the State was initially ordered to do things, I argued on behalf of the State that it could not be found legally liable for its segregation in St. Louis because the State had not been made a party to the litigation.

John Ashcroft

Subsequent to that time, the State was drawn into the litigation, and, obviously, by the time we had the case of Missouri v. Jenkins, which was what happened eventually in the Kansas City situation, the State was fully a party and obviously one of the named parties in the Supreme Court lawsuit. And I thank the Chairman for making it possible to clarify that there was a time at which the State became a party, but that the State was originally --

Patrick Leahy

And you were Attorney General at that time. Is that correct?

John Ashcroft

I believe that's correct.

Orrin G. Hatch

I wonder if we could go to the regular order, Mr. Chairman.

Patrick Leahy

I just wanted to -- well, the answer --

Orrin G. Hatch

That is the answer he gave yesterday as well.

Patrick Leahy

Yes, but I think as he pointed out, it needed a correction, and I was trying to be fair to the nominee because the answer was not --

Orrin G. Hatch

I don't think it needed a correction. I mean, it was the answer he gave yesterday.

Patrick Leahy

The nominee --

Orrin G. Hatch

Well, let's just have regular order.

Patrick Leahy

The nominee has just said he thanks me for the chance to correct it, but go ahead, Senator Kohl.

John Ashcroft

Sir, in all due respect, I thank you for the opportunity to clarify.

Patrick Leahy

Thank you, Senator Leahy.

Patrick Leahy

Senator Kohl?

Herb Kohl

Herb Kohl

Senator Ashcroft, I believe that we fail the Senate and our constituents when put politics above policy and bitterness above compromise. In an evenly divided Senate, we have a terrific opportunity to give the public faith in democratic institutions. It is not clear whether or not you fully agree.

Herb Kohl

Yesterday, Senator Leahy read a 1998 quotation of yours, "There are voices in the Republican Party today who preach pragmatism, who champion conciliation, and who counsel compromise. I stand here today to reject those deceptions. If ever there was a time to unfurl the banner of unabashed conservatism, it is now."

Herb Kohl

In that year, you were also quoted as saying, "There are two things you find in the middle of the road, and moderate and a dead skunk, and I don't want to be either one of those."

Herb Kohl

As someone who works the middle of the road myself, I find these statements troubling. Tell us why we should believe that, as Attorney General, you will accept those voices in your own party who counsel compromise.

John Ashcroft

Well, I thank the Senator for that question. I'm still getting adjusted to this, to hearing myself. It's like talking in the shower in this room. It's a little bit different, but I thank you.

John Ashcroft

The first quotation was a quotation about whether in my judgment a party should set forth a clear agenda, and I think it's important for the party to be in a position to debate. And I would expect the Republican Party to be stating a clear conservative position, and I generally expect people on the other side to state a more predominantly liberal position.

John Ashcroft

In the process, in the collision of those ideas is what I appreciated as the process in which we were able to work together in many instances to get legislation. When different ideas come from different quarters, those differences enhance the ultimate quality of what we do, and pardon me for lapsing back into my "we do." I'm no longer a Member of the Senate, and I understand that. But at the time I was a Member of the Senate. And I think that when there are people who state a strong position on one side and a strong position on the other representing their parties, and then they come together in the process to reach a conclusion, it's valuable.

John Ashcroft

Another way of putting it would be that if we were all right there in the middle together, we wouldn't need the legislative process. The legislative process is the process of disagreement. It's the process of debate. It's the process of stating these and examining the various positions from one end to the other and then harmonizing those differences by working together.

John Ashcroft

So I expect the Republican Party generally to state a pretty strong conservative view and to start the negotiations from that view with the understanding that by the time you finish, we're going to have something that's going to be an enactment that results in something that people can generally support and that will have good values expressed from a variety of significant perspectives.

John Ashcroft

I have to say this, that I mean no injury or disrespect to those individuals who don't have my views in that respect. I just wanted to encourage people not to think they always had to think what other people thought, they were free to have a position at one end of the spectrum or another, and that in the collision of those views, we hope that out of that collision the truth emerges and good policy and legislation emerges.

John Ashcroft

The joke about what you find in the middle of the road, I really regret it if anyone's offended by it. I had one of the individuals who intends to testify against me tomorrow come up to me this morning and say: You know, I agree with you about the middle of the road. I'm on the other side of the road, and I don't -- I tell the same story.

John Ashcroft

I don't know whether she'll want to confess that when she is testifying tomorrow, but she said: I understand the joke, I'm from Texas, and we didn't say dead skunk, we said armadillo.

John Ashcroft

Frankly, I would be the first to say that I do not intend to impugn people for their political positions, and I'm sorry if that is to be taken in that respect. It was meant as a humorous sort of aside to say that I generally have been characterized fairly as a common-sense conservative and I haven't been right in the middle of the road.

Herb Kohl

Well, you are likely to be confirmed, as we all know, as the next Attorney General of the United States. How will you be -- or will you be a different kind of an advocate as Attorney General than you have been as a Senator in the sense that we in the Senate have seen you consistently very much on the right on virtually every issue? And that is fine. I mean, you know, you campaigned as that kind of a Senator-to-be, you were elected, and you have been that kind of a Senator, and a very respectable Senator, obviously.

Herb Kohl

Is there a different kind of a person within your obviously strong philosophical background and views, but is there a different kind of a person who we might well expect to see as the Attorney General of the United States?

John Ashcroft

Well, I thank you for that question because these are vastly different roles. I mean, if a person's playing at the power forward position, he has one approach to the basket. If he's playing as the distributor of the ball, as the playmaker, he has another approach.

John Ashcroft

When I was in leadership responsibilities with the National Association of Attorneys General, I understood that it wasn't my position to be -- I had to sacrifice some of my advocacy roles and some of my -- what otherwise would have been my approach to be responsible in those positions; similarly, when I was Chairman of the National Governors' Conference or when I was elected to be the Chairman of the Education Commission of the States, which was an education organization that involved not only all the Governors but members of all the State legislatures and all the State school organizations that dealt with education.

John Ashcroft

And there's another important difference with the Attorney General in that as it relates to policy matters. As it relates to policy matters, he is referenced to the President of the United States. And it would be my responsibility to carry forward on things that the President of the United States would expect me to advance.

John Ashcroft

Now, that's not inconsistent with what an attorney does, because an attorney represents individuals all the time. That's part of what we're trained to do. But I would say to you that I would expect in the role of Attorney General to enforce all the laws vigorously and, as it related to policy matters, to reflect the administration's policy and effort to achieve the kinds of things that this administration was elected to achieve by the American people.

John Ashcroft

So I understand the distinction. I think my past indicates that I've been capable on a number of occasions in making the difference and in adjusting the way that I approach things to fit my responsibilities in the role that I'm expected to play. And I can pledge to you that I will work to work with all people at the Attorney General's office, and I will welcome the participation and conversation and involvement of all kinds of individuals.

John Ashcroft

In that respect, it may not be totally different from what I've done here in the U.S. Senate because I've had the privilege of cosponsoring legislation with a lot of individuals, the Chairman in particular, and obviously we're not what you would call inseparable twins on policy. But there are areas respecting privacy and --

Patrick Leahy

Separated at birth.

John Ashcroft

Separated at birth, OK. That have made it possible for us to work together, and I would expect to work with a broad range of individuals, especially be honored to do so with members of this Committee.

Herb Kohl

OK. Thank you.

Herb Kohl

In 1979, as Attorney General of Missouri, you brought an antitrust case against the National Organization for Women for sponsoring a boycott of States that had not yet ratified the equal rights amendment. You lost the case all the way up to the Supreme Court.

Herb Kohl

It is a basic principle of antitrust law that when boycotts involve non-commercial concerns, the Sherman Act does not apply. And yet even after you lost the case, you still disputed the ruling. In 1981, you wrote a Law Review article that said, "The decision created a potentially disastrous exemption from the antitrust laws," and that "parts of the decision severely strained antitrust laws."

Herb Kohl

You seem to have pursued a highly unusual use of the antitrust laws. Some have argued that you chose to further your political views above the equal rights amendment by using your office as State Attorney General. Furthermore, you kept appealing the case despite well-established Supreme Court precedent against you.

Herb Kohl

Can you explain to us why you chose to pursue that case so vigorously?

John Ashcroft

Thank you for the question, and it's a valid one. In response to the fact that the elected representatives in the legislature of Missouri chose not to ratify the equal rights amendment, a boycott was organized of the State of Missouri which would have curtailed the State's ability to attract conventions and provide employment to individuals who populate the convention industry. This lawsuit took place over 20 years ago, and I'm not sure I can recall all the details. We filed the lawsuit, in the best of my recollection, because the boycott was hurting the people of Missouri and we believed it to be in violation of the antitrust laws.

John Ashcroft

The lawsuit had nothing to do with the ERA -- we didn't sue the ERA -- or with the political differences that it might have had with NOW. It simply was with the practice of saying that we're not going to -- we're going to curtail convention business, and for individuals in my State who relied on that industry, they were to be hurt.

John Ashcroft

Now, I litigated that matter thoroughly, and, frankly, other States attempted it -- one other State attempted a similar lawsuit, and not too long thereafter, I think a similar lawsuit was launched by an organization that questioned whether or not commercially directed boycotts were susceptible for achieving political ends.

John Ashcroft

I think the law is well-settled and clear. After our case was resolved, and in the Eighth Circuit Court of Appeals, one of the judges found in our favor, and two of the judges found against us. So that it was a matter which had some acceptance in the courts, but obviously I didn't carry the day.

John Ashcroft

I think the law is clear now and has been clear in the aftermath of that decision, and from that perspective, I don't think it's an issue and can't be an issue. And there is and has been a well-established subsequent set of circumstances that have demonstrated that commercial boycotts targeting individuals or industries to force third parties to vote or to conduct themselves in some way politically are acceptable. And since that's the case, that's the situation and the rule of law at this time, having lost the case 2-1 in the Eighth Circuit Court of Appeals and the Supreme Court having denied cert and other cases having been resolved, I accept that fully and have not recently alleged that there ought to be any change in the law in that respect. It's a part of the way I have come to believe America resolves these issues.

Herb Kohl

Antitrust, Senator Ashcroft. Last week, American Airlines announced that it will buy TWA and enter a joint agreement to run D.C. Air and operate the Washington-New York shuttle. Meanwhile, the U.S. Airways-United merger is under scrutiny at Justice. By mid-spring we might see four airlines turn into two, and these two merged airlines will control a tremendous share of airline travel in the United States.

Herb Kohl

The combined U.S. Airways-United and American-TWA share will be nearly one-half of the domestic airline market. These two airlines will collectively dominate no fewer than 13 hubs, including many of our major, major airports.

Herb Kohl

This fast-moving consolidation in the airline industry doesn't leave the head of the Justice Department with much time. Before we know it, we could have a domino effect in the airline industry take place. There's a real chance that transition paralysis could result in a merger wave that won't stop until there are only three or four airlines nationwide.

Herb Kohl

How concerned should we be about this pending airline consolidation? When confirmed, if confirmed, how quickly do you intend to act? Is it something that is on your radar screen in a very major way? What can we expect from you by way of some action? Do you have something beyond the comment that it is a serious matter, you will have to consider it? Can you tell us the direction in which you might very well go?

John Ashcroft

I consider it serious. I will study the issue very carefully. I do not know all the facts and circumstances. I think it would be inappropriate for me, not fully aware of this, to be announcing a position or a direction.

John Ashcroft

I can tell you that I believe that competition is very important and the absence of competition I have witnessed, and it's a serious problem. In the absence of competition, I think you have very serious problems with rates. We've all seen what happens when there's only one way out of town, and we've watched how in those settings rates go way up. We've watched when Herb Keller comes to town with Southwest Airlines, and we've watched what happens to rates in those situations. And my view is that it's very therapeutic when you get competition.

John Ashcroft

I will do what I can to make sure that we maintain the right competition, and I will -- but I'll have to base what I do on the responsibilities of the Justice Department, and it has to be based on facts and a thorough investigation of the situation.

Herb Kohl

The Senator from Iowa, Mr. Grassley, I am told by Senator Hatch is in another confirmation hearing where he is questioning the witness, and so we will turn to the Senator from Pennsylvania, Senator Specter.

Patrick Leahy

Arlen Specter

Senator Ashcroft, I didn't realize how important this hearing was until it was scheduled here in the Senate Caucus Room. We haven't been here since Justice Thomas and Judge Bork. This is a very famous room for major matters. It is the room where President Kennedy announced for President back in 1960. So it is a commentary on the importance of the hearing.

Arlen Specter

Arlen Specter

Permit me to go to a key issue on the choice issue, a woman's right to choose, and concerns which have been expressed about your enforcing the law, which I thought you stated very positively yesterday, and move to the area of prosecutorial discretion where there is substantial leeway for an Attorney General or even a district attorney, as I was for many years, dealing with the prosecutor's discretion on what cases to prosecute and how to handle them. And what I think many Americans are looking for beyond your assurance that you will enforce the law is your commitment to exercise your discretion to carry out the intent of the law on a woman's right to choose within the confines of existing law which you have promised to support.

Arlen Specter

One of the votes that you cast that I thought was particularly significant was the one in the bankruptcy context. It is interesting that it should have an application to a woman's right to choose. But when protesters blocked abortion clinics, there have been some very substantial verdicts handed down, one in excess of $100 million. And when that issue came before the Senate, you voted that those individuals who had those verdicts against them would not be permitted to have a discharge in bankruptcy.

Arlen Specter

What assurances can you give, Senator Ashcroft, that your discretionary calls as Attorney General will be to enforce the intent behind existing law on a woman's right to choose?

John Ashcroft

Well, any constitutionally protected right is an important right, and I think people who interfere with the exercise of constitutionally protected rights should be the focus of attention by prosecutorial authorities. It's my understanding that there are anticipated several dozen cases a year in terms of the violence or obstruction or coercion around abortion facilities or other health, reproductive health facilities. And I would think that it should be the responsibility of the Attorney General to be able to respond aggressively in every one of those situations.

Arlen Specter

Well, if you say aggressively, that is a good assurance. Aggressive has a well-accepted meaning. I like aggressive prosecutors.

Arlen Specter

Let me pinpoint the issue on constitutionality of the statute, the Freedom of Access to Clinic Entrances. There have been some 24 cases which have challenged the constitutionality of the Act under the First Amendment in the Commerce Clause, and all 24 of these cases have been decided favorably to the constitutionality of the Act.

Arlen Specter

The job of the Attorney General, just like the job of the district attorney, the State Attorney General, is to uphold the constitutionality of the Act, and I note you nodding in the affirmative. Would you commit to the Attorney General's generalized responsibility to support the constitutionality of existing legislation like the Freedom of Access to Clinic Entrances?

John Ashcroft

Let me just say that I would support the constitutionality of the Act. I don't believe there is a First Amendment right to coercion and intimidation. I think that's the clearest thing I can say. When people say that this Act interferes with their First Amendment right, I don't think that's what the First Amendment provides. The First Amendment does not mean that you have the right to intimidate a person who is exercising their constitutional rights. The First Amendment --

Arlen Specter

So you would --

John Ashcroft

-- Doesn't provide you with the right to violate the person and safety and security of an individual in that respect. So I will vigorously enforce and defend the constitutionality of -- of course, that's my responsibility. When this Senate acts and makes a determination through an act and it's signed by the President that something should be the law, that places a very high level of responsibility on the Attorney General to carry that out.

Arlen Specter

Let me move to freedom of religion, Senator Ashcroft, an area again where substantial concern has been expressed.

Arlen Specter

There have been many quotations of your speech at Bob Jones University on "we have no king but Jesus," and I view that as a personal comment which you have made. We all have our own views on religion, and the question is not what John Ashcroft or Arlen Specter hold as religious views, but whether the sacrosanct provisions of the First Amendment on freedom of religion will be maintained and enforced and the Attorney General has a very vital role there.

Arlen Specter

Political speeches frequently contain a lot of references to religion. This happens on both sides of the political aisle, and some of us may not do it and some of us may, but political speeches are one thing and personal views are another. But the most important factor is the enforcement of the law.

Arlen Specter

Now, I note that Attorney General of Missouri, you had acted to prohibit the distribution of religious material on a campus, and what I would like to know is your determination, putting aside your own views, your resoluteness to enforce the sacrosanct provisions for freedom of religion of the First Amendment, and perhaps if there are other instances that you could show in addition to that one where you stop the distribution of religious material on a campus.

John Ashcroft

Well, first of all, I am committed to the right of individuals to worship freely in accordance with the dictates of their own conscience or not to worship at all, and I will work acidulously to defend that right for all Americans.

John Ashcroft

The phrase, "we have no king but Jesus," was a representation of what colonists were saying at the time of the American Revolution in a number of instances, and it became a bit of a rallying cry when people came to collect taxes on behalf of the King of England and the American colonists would respond with that phrase.

John Ashcroft

I was putting in that speech in context the idea that the ultimate authority or the ultimate idea of freedom in America is not governmentally derived. It basically went to something that was reflected when Thomas Jefferson wrote the Declaration of Independence. He didn't write, "We hold these truths to be self-evident that all men get from government equality."

Arlen Specter

Senator Ashcroft, because of limited time --

John Ashcroft

-- Would you pinpoint what you did specifically as Attorney General of Missouri in not permitting religious matters to be handed out on campus?

Arlen Specter

John Ashcroft

Well, the question was raised about whether Christian groups could distribute Bibles on school grounds, and Missouri constitution happens to be even more adamant about church and State and requiring separation far more clearly even than does the U.S. Constitution. And I looked at the constitution of these groups, obviously were groups that I had some favor for, but obviously the law has to be followed. I simply --

Arlen Specter

Did you stop the distribution of those --

John Ashcroft

I issued the opinion that indicated that distribution was unlawful.

Arlen Specter

And what did you do?

John Ashcroft

Distribution ceased based on that.

Arlen Specter

Let me move to Supreme Court nominations, Senator Ashcroft. President-elect Bush has already said that he would not employ a litmus test on pro-choice, pro-life on Supreme Court nominees on this panel, and many of us who are pro-choice have supported candidates for the Supreme Court who were known to be pro-life and many Senators who vote pro-life have supported nominations for nominees who have been known to be pro-choice.

Arlen Specter

To the extent that you have any role in the selection of Supreme Court nominees, would you make a commitment not to employ a litmus test on the pro-choice/pro-life distinction?

John Ashcroft

I have not had a substantial discussion with the President-elect of the United States about my role in terms of judicial selection. I know the Constitution allocates clearly the appointment authority to the President.

John Ashcroft

I know that he has indicated that he would not have a litmus test, and I believe that in my service to him, it would be important that I reflect that clear indication of his that no litmus test would exist.

Arlen Specter

So you would make a personal commitment not to apply a litmus test to Supreme Court selections to the extent that you may be involved in that?

John Ashcroft

To the extent that I have the authority, I am going to do -- I am going to work with the President and his framework for developing Supreme Court justices. The answer is clear, no litmus test. I think he stated that clearly, and that would be my position.

Arlen Specter

Your position as well. OK.

Arlen Specter

The issue on antitrust has been broached by Senator Kohl, and I would like to pursue that a little further. I share Senator Kohl's concerns about the airline mergers. I am concerned about what OPEC is doing.

Arlen Specter

Just this morning, there is an announcement of raised prices by OPEC curtailing production, and I would like to make available to you a letter signed by six members of this Committee to the President in April of last year setting forth a basis for litigating with OPEC antitrust violations and ask you to take a look at that and give us a view of it a little later.

Arlen Specter

Staying with the antitrust issue for another moment or two, without expressing any view on the Microsoft case, because it is a very complex issue, it has been decided in the District Court. It is on appeal to the Court of Appeals for the District of Columbia Circuit. The question which I would like your response to is to what extent you would honor the Court process.

Arlen Specter

It would be one thing if the matter was considered ab initio by Attorney General Ashcroft, if confirmed, contrasted with an action which is already underway.

Arlen Specter

Here you have a District Court judgment and you have the matter on appeal. To what extent -- and here, again, I emphasize, I am not commenting on the merits. That is something different. I am only on the process as to the extent of recognition that as Attorney General, if confirmed, you would give to the existing legal status of the case.

John Ashcroft

Well, I am very pleased to answer the question. The Microsoft case is a very important case, and the maintenance of competition in our culture is a very important aspect of what we need to make sure that we get the right output.

John Ashcroft

I would first say that I will have to confer with the people in the Antitrust Division. I don't know the facts of the Microsoft case. It is a very complex case from what I have heard about the case. It relates to tying arrangements and the integration of various aspects of software. The judgment of the District Court obviously would have substantial consequences.

John Ashcroft

I would look very carefully at this case, relying on the expertise of the Department in deciding strategy for the case, and I am not in a position to assure you that I would do anything other than that at this time.

Arlen Specter

My yellow light is on. So I have less than a minute.

Arlen Specter

I would conclude this round, Senator Ashcroft, by noting your sense of humor, noting your membership among Singing Senators. In a senatorial role on official responsibilities, there is very little opportunity for a Senator to display any sense of humor when you are talking about the death penalty or you are talking about the weighty legal issues that come before the Congress of the United States, but I think it is something that ought to be noted.

Arlen Specter

I have some concern, only slight, not about the fact that you don't drink or smoke, but that you don't dance, and had some sense of wonderment as to how that fit in with your being so extraordinarily capable as a Singing Senator.

Arlen Specter

I would come back only for a moment to the middle-of-the- road question, and there are a lot of moderates who have asked me -- I talk to some from time to time -- about the only people in the middle of the road being dead skunks and moderates. I have seen your sense of humor in the hearing room which I think is exemplary, and I have noticed it a lot when you were on this side of the bench where you might have been a little more comfortable. Sometimes your quips may get you into a little trouble.

Arlen Specter

I think you have already explained it, but I have some explaining on that particular one with some of the people in the so-called moderate group.

Arlen Specter

Thank you, Senator Specter.

Patrick Leahy

Patrick Leahy

I would note for the record the Chairman, current Chairman of this Committee, does dance, but that is probably disputed by my wife of 38 years.

Patrick Leahy

I turn to the distinguished senior Senator from California, Senator Feinstein.

Dianne Feinstein

Senator Ashcroft, I must tell you, I am deeply puzzled by what I heard yesterday and what I hear today. I am one that believes that in political life of which you have been part for 25 years, it is very hard to change your stripes or change your spots, and I see a kind of metamorphosis going on, a mutation, if you will, that somebody that has been really on the far right of many of the issues about which Senators have spoken today or yesterday, civil rights, a woman's right to choice, certainly guns, is now making a change, and quite frankly, I don't know what to believe.

Dianne Feinstein

Dianne Feinstein

I would like to confine my questions to choice and to guns. You have a long history of vigorously criticizing the pro- choice position. In 1998, you wrote, "If I had the opportunity to pass but a single law, I would ban every abortion except those medically necessary to save the life of a mother."

Dianne Feinstein

In 1983, while you were Attorney General, you told the Missouri Citizens for Life Annual Convention that you would not stop until an amendment outlawing abortion is added to the United States Constitution. When you spoke at the National Right to Life Committee Annual Convention, you said, and I quote, "The Roe decision is simply a miserable failure, and I hope that the Supreme Court announces it is overturning the Roe decision and giving back to the States the right to make public policy."

Dianne Feinstein

While Governor in 1989, you declared the sixteenth anniversary of Roe v. Wade a day in memoriam for aborted fetuses. So you have, in fact, been an implacable foe of a woman's right to choose for a quarter of a century.

Dianne Feinstein

You have supported legislation and even a constitutional amendment that would define life at the beginning of fertilization which would not only criminalize all abortions and take away a woman's right to reproductive freedom and choice, but would also outlaw and criminalize many forms of the most common birth control options. I frankly don't know what to believe.

Dianne Feinstein

You said of Bill Lann Lee in one of the reasons you voted against him was because he had the kind of intensity, and I quote, "that belongs to advocacy, but not with the kind of balance that belongs to administration," and I might respectfully say the same thing about you and your record.

Dianne Feinstein

I want to ask you some specific questions. We talked in my office about a rape exception, and let me ask this question. Each year, more than 32,000 women become pregnant as a result of rape, and approximately 50 percent of these end in abortion. Given the circumstances surrounding any rape and certainly a resulting pregnancy, can you tell us why you feel there is no need for a rape exception to a ban on abortion?

John Ashcroft

Thank you for your question. I understand these are deeply held views of yours, and my opposition to the abortion of unborn children has been a deeply held position of mine.

John Ashcroft

I have sought in a number of ways through the years to reduce and to curtail the abortion of unborn children, and I understand that reasonable people do differ on these things and that has been not only my understanding, but it has been a basis for my seeking to act in concert with people to cooperate to move toward a variety of different ways to reduce the level of aborting unborn children in our culture and in our society.

John Ashcroft

I have voted on numerous occasions for rape and incest exceptions, and have voted for much broader exceptions than that. One time when I was Governor, I proposed that we only ban second abortions or abortions for second or third times, we ban abortions for racially mixed children because people were wanting to abort a child for being racially mixed or we banned abortion for sex selection. So I think it is fair to say that over the course of my time in office and with the prerogatives I have had as a public servant, I have adopted a variety of positions to try and reduce the number of children being aborted.

John Ashcroft

I think it is also fair to say that I know the difference between an enactment role and an enforcement role, and during my time as a public official, I have followed the law and my following of the law has been clear. When I was the Attorney General of the State and pro-life groups wanted to insist on the publication of abortion statistics for particular hospitals and they asked that those abortion statistics be published, I went to the law, in a fair reading of the law didn't allow for the publication of those statistics which could have made those hospitals the target for pro-life forces. I followed the law in saying that I would not force the State or rule that the State had to publish those statistics when I think the law was clear that it should. So I have a record of being able to say I know the difference between enacting the law, the debate about the law. My involvement in legislation has, very frankly, in recognition of the law centered in real terms on trying to do things like get parental consent and other things like that. Those are the kinds of things which I have focussed on, the ban of partial-birth abortion, but I will enforce the law fairly and aggressively, firmly.

John Ashcroft

I know the difference between the debate over enacting the law and the responsibility of enforcing the law, and that has been clear in my record as a public servant.

Dianne Feinstein

Will you maintain the Department of Justice's Task Force on Violence Against Health Care Providers and give it the resources it needs to continue?

John Ashcroft

I will -- the -- there have been, I think, three different task forces in this respect. I will maintain such task forces and provide them with the kind of resources that they need in order to make sure that we don't impair the constitutional right of women to access reproductive health services.

Dianne Feinstein

Will you, 100 percent, investigate and prosecute activities that block the entrances to facilities where abortions are performed even if the conduct is non- violent?

John Ashcroft

If the conduct of anyone violates the law regarding the access of women to reproductive health services, I will enforce the law vigorously. I will investigate the alleged violations thoroughly. I will direct U.S. Attorneys to devote resources to that on a priority basis.

Dianne Feinstein

When you said yesterday that Roe was a settled question, does that indicate that you accept this adjudication and that you will use all of the elements of your offices to support it?

John Ashcroft

I believe that both Roe and Casey and I guess -- is it Stenberg? Is that the most recent case that related to the Nebraska statute? -- are settled law. In the application for certiorari, I think on the Stenberg case, there was a request for -- by one of the parties that Roe be considered, reconsidered. The Supreme Court has signaled very clearly it doesn't want to deal with that issue again.

John Ashcroft

I would say that I do not want to devalue the currency of the Solicitor General of the United States by taking matters to the Supreme Court on a basis which the Supreme Court has already signalled we don't want to deal with and we are unwilling to deal with.

John Ashcroft

I think, you know, the Solicitor General of the United States has some standing and prestige in the United States Supreme Court, and to consistently go back to the Court insisting that the Court do what the Court has indicated it doesn't want to do devalues the ability of the Solicitor General in other matters.

John Ashcroft

It not only is, thus, a losing proposition, but it is counterproductive as it relates to the ability to succeed on other issues in the Justice Department, and, therefore, accepting Roe and Casey as settled law is important not just to this arena, but important in terms of the credibility of the Department.

Dianne Feinstein

Let me change to guns for a moment. In this body, I was the main author of the assault weapons legislation in 1993. I feel very strongly and very passionately that assault weapons have no role in this society on the streets of our communities. That law is supported by virtually every Federal and local and State law enforcement agency across our land, and I think law enforcement recognizes that there is no legitimate reason for civilians to have military-style weapons that are useless for hunting or really for self- defense.

Dianne Feinstein

Now, the National Rifle Association, on the other hand, opposed and continues to oppose the Federal assault weapons ban in court in suits in which the Justice Department took the other side defending the statute.

Dianne Feinstein

You called this ban wrong-headed in a response letter to Sarah Brady in 1998. If you become Attorney General, will you maintain the Justice Department position in support of the assault weapons ban?

John Ashcroft

Will you support its reauthorization when it sunsets in 2004?

Dianne Feinstein

John Ashcroft

It is my understanding that the President-elect of the United States has indicated his clear support for extending the assault weapon ban, and I will be pleased to move forward with that position and to support that as a policy of this President and as a policy of the Justice Department.

John Ashcroft

I might add that I had the -- I don't believe the Second Amendment to be one that has -- forbids any regulation of guns. In some of the hearings that I conducted when I had the privilege of serving on this Committee and was the Chairman of the Constitution Subcommittee, we discussed those issues, and, for instance, in the Juvenile Justice bill, I sought to amend the Juvenile Justice bill so as to make semiautomatic assault weapons illegal for children just as handguns were illegal for children.

John Ashcroft

And there are a number of enactments which I would not prefer as policy, but which I believe would be constitutional. As a policymaker, I may not think that a particular weapons ban would be appropriate, but as whether -- I could have voted against a number of things which I thought constitutional, but which I might have thought bad judgment.

John Ashcroft

What I am trying to clarify here is that I believe that there are constitutional inhibitions on the rights of citizens to bear certain kinds of arms, and some of those I would think good judgment, some of those I would think bad judgment, but as Attorney General, it is not my judgment to make that kind of call. My judgment, my responsibility is to uphold the acts of the legislative branch of this government in that arena, and I would do so and continue to do so in regard to the cases that now exist and further enactments of the Congress.

Dianne Feinstein

Now, let me ask you another question on guns. I was co-sponsor of the Juvenile Justice bill with Senator Hatch as the main author. We wrote the gang abatement section of the bill because I am deeply troubled by gangs that have moved across State lines. Some of the gangs that originated in California are now all over the United States, and in that bill, we use the RICO laws to set some predicates. And some of the crimes I was interested in adding were trafficking in guns with obliterated serial numbers, possession of machine guns, knowingly transferring a smuggled gun to be used in a drug or violent crime, importing guns with intent to commit a drug or violent crime, stealing guns, transportation of bombs, machine guns, or sawed-off shotguns by an unlicensed person, transporting stolen guns, position of illegal assault weapons -- possession of illegal assault weapons, and stealing firearms from a licensed dealer, importer, manufacturer, or collector.

Dianne Feinstein

The point of adding these crimes as RICO predicates was to give law enforcement the ability to seize the assets of violent gangs and increase penalties for gangs conspiring to commit these and other crimes.

Dianne Feinstein

Now, it is my understanding that you work to strip the bill of these predicates. My question is why.

John Ashcroft

Well, first of all, let me say that in the event the bill passes with those predicates, I will defend the bill and instruct the Department to defend the bill and its constitutionality.

John Ashcroft

There were a number of individuals that expressed to me serious reservations about the RICO applications in the bill. RICO has been a controversial matter that has been questioned by members of this Committee on both sides in terms of potential abuses, even gaining the attention of the ACLU which has challenged the application of RICO in these settings.

John Ashcroft

Those were the reasons that I had challenged the wisdom of including those in the bill and the effect of its inclusion on the ultimate passage of the bill. As Attorney General, I would provide instruction to the Solicitor General in defense -- and others in the Department in the defense of actions to support the bill. It is clearly within the range of items that it would be the responsibility of the Attorney General to support.

Dianne Feinstein

I believe my time is up.

Patrick Leahy

It is. Thank you.

Dianne Feinstein

Thank you very much, Senator. I appreciate that.

Patrick Leahy

Senator Grassley, who is the ranking member and incoming Chairman of the Finance Committee, is still tied up at the Secretary of the Treasury hearings. So we will go to the distinguished Senator from Arizona, Senator Kyl.

Patrick Leahy

Incidentally, I would note before Senator Kyl starts, when Senator Grassley is able to be here -- we all understand he has to be gone -- and I have discussed this with Senator Hatch, he would then become the next Republican to ask questions.

Jon Kyl

Mr. Chairman, I would like to cover three things if I could in this round of questioning.

Jon Kyl

Jon Kyl

First of all, I would like to make a comment about some statements that Senator Kennedy made, and if Senator Ashcroft wishes to respond, to afford him the opportunity; second, to ask a question about nomination standard; and, third, if there is time to get into the issue of victims' rights.

Jon Kyl

First of all, Mr. Chairman, Senator Kennedy in his opening statement launched a litany of attacks against Senator Ashcroft, some of which Senator Ashcroft had an opportunity to address.

Jon Kyl

In my opinion, most of these attacks had the effect of distorting Senator Ashcroft's record, and I think that they were unfair.

Jon Kyl

First of all, Senator Kennedy said that Senator Ashcroft -- and I am quoting now, these are direct quotations from the transcript -- "strongly opposed school desegregation." Now, that's not true from what I understand, and Senator Ashcroft did have the opportunity briefly to testify that he strongly supports desegregation, believes in integration, and protecting everyone's civil rights.

Jon Kyl

Secondly, Senator Kennedy said that Senator Ashcroft -- and, again, I am quoting -- "strongly opposed voter registration in St. Louis." Now, apart from being obviously incorrect on its face, Senator Ashcroft also had some opportunity to explain that he does not oppose voter registration in St. Louis. In fact, the etiology of that charge was legislation that he vetoed having to do with voter registration policies in the State, one of the bills being strongly recommended for veto by predominantly Democratic public officials.

Jon Kyl

Third, Senator Kennedy charged that Senator Ashcroft did not support our laws concerning access to contraception and a woman's right to choose. Here, I simply note that while I don't think that Senator Kennedy was inaccurate in the way he described Senator Ashcroft's positions necessarily, three is an implication that is left that is inaccurate.

Jon Kyl

While it is true that Senator Ashcroft as a legislator sought to change some of the law, he said that and has had further opportunity to amplify in response to Senator Feinstein's question that in his very different role as the lawyer for the American people that he would fully enforce the law as it exists.

Jon Kyl

Fourth, Senator Kennedy said that Senator Ashcroft -- and, again, I am quoting -- "is so far out of the mainstream that he has said that citizens need to be armed in order to protect themselves against a tyrannical government," end of quotation.

Jon Kyl

Now, the way that that charge was made, made it sound very irresponsible for anyone to take such a position, and it made it sound like this was something that Senator Ashcroft was very concerned about and, therefore, very much distorted his views.

Jon Kyl

The charge was obviously out of context. The correct context -- and this is something that Senator Ashcroft did not have an opportunity to respond to. If my characterization is inaccurate, I ask him to please add to what I say, but the remarks that he is referring to, I believe are those that occurred before a hearing of the Constitution Subcommittee of this Committee, which Senator Ashcroft chaired and during which he observed that the Second Amendment conferred individual rights upon citizens, and here is his quotation, the full quotation from that hearing.

Jon Kyl

It was a recitation of the views of James Madison, the Father of our Constitution, and here is what Senator Ashcroft remarked, "In Federalist No. 46, James Madison, who later drafted the Second Amendment, argued that the advantage of being armed, which the Americans possessed over the people of almost every other nation, would deter the new central government from tyranny," end of quotation. As we know, James Madison was the primary author of much of the Constitution, and I frankly think it is a stretch to consider the Founders and James Madison out of the mainstream, but don't take it from me.

Jon Kyl

Senator Feingold during his questioning, among other things, said this -- and this is a quotation from the transcript -- "I listened carefully to every word you," meaning Senator Ashcroft, "said, and I reserve the right to change my mind after reading the transcript, but I believe I agree with every single word you have just said." Continuing the quotation, "The purposes of the Second Amendment include self- defense, hunting sport, and some certainly would say, as would I, the protection of individual rights against a potentially despotic central government. The Second Amendment was clearly intended to counter-balance a distrust of and to protect the right to defend against an oppressive government."

Jon Kyl

Mr. Chairman, while there is certainly room for us to debate Second Amendment gun control issues -- and we have had robust debates about that -- I think it goes too far to characterize a position that was held by President Madison, Senator Ashcroft, Senator Feingold, and a lot of other scholars on the issue as outside the mainstream, and, in fact, I suggest it may say more about Senator Kennedy's locus in the spectrum of American public opinion.

Jon Kyl

Fifth, Senator Kennedy said that Senator Ashcroft "opposes virtually all gun control laws," and he had some opportunity yesterday to explain his view that that is not true and to further expand in his answer to Senator Feinstein just a moment ago. He supports the Brady law, voted to require mandatory background checks for all gun purchases at gun shows, to prohibit firearms in a school zone, to prohibit those convicted of domestic violence from possession a firearm, drafted the juvenile assault weapon ban that passed the Senate in 92 to 2, and supports President-elect Bush's policies to aggressively prosecute those who buy guns illegally, sell them illegally, or commit crimes with guns.

Jon Kyl

And finally, Senator Kennedy said that Senator Ashcroft -- and I am quoting here again -- doesn't "respect the right to free speech under the First Amendment," and, Mr. Chairman, you can differ with Senator Ashcroft on some issues, but I think it is not responsible to charge that he doesn't respect the right to free speech under the First Amendment. I think he has made it very clear that he will enforce the law and that he has been an outspoken defender of the First Amendment for many years.

Jon Kyl

Senator Ashcroft, I hope that I have correctly characterized your views. Would you -- have I done so, and is there anything you would like to add?

John Ashcroft

Well, first of all, I am grateful to you for having been so careful in your approach to these matters, and I appreciate the opportunity for the clarification.

Joe Kennedy III

Mr. Chairman, I would hope that after Mr. Kyl's time has been allocated that I would have a chance to respond in terms of fairness.

Patrick Leahy

Under the normal practice, when there is such direct reference by one Senator to another Senator on the panel, the Senator from Massachusetts will be given time to respond. That time will not come out of either Senator Kyl's or Senator Kennedy's time.

Jon Kyl

Mr. Chairman, I would hope that we could establish a process here where, however, it is not appropriate to throw out charges, and when there is a response to those charges by a Senator rather than Senator Ashcroft that that would unbalance the time that each of us on the Committee have to present our questions and our statements.

Patrick Leahy

We are trying to find our process, and neither Senator will lose on their time as a result of that.

Jon Kyl

Senator Ashcroft, let me ask you -- there were attempts yesterday to define by Senators here on the dais an Ashcroft standard for confirmation of Cabinet nominees. Perhaps rather than defining that standard for you, it would be appropriate for you to define the Ashcroft standard. Could you tell the Committee what you believe is the appropriate standard for the confirmation of Cabinet or sub-Cabinet nominees?

John Ashcroft

Well, thank you, Senator. I think it is one of the solemn responsibilities of Members of the Senate to make judgments and to participate with the President of the United States in providing the staffing of the Cabinet-level positions and a variety of other positions.

John Ashcroft

In my 6 years in the U.S. Senate, approximately almost 1,700 -- I think it is 1,686 -- Presidential nominees have come before the Senate, both judicial and non-judicial, of course. Of that 1,686, I opposed 15 of them.

John Ashcroft

Of President Clinton's 230 judicial nominees, I voted to confirm 218. In fact, I never opposed a President's Cabinet nominee. Larry Summers, Alexis Herman, Bill Richardson, clearly there were policy differences in that respect, but I never opposed a nominee. The President is entitled, in my judgment, to assemble a Cabinet that reflects his policy views.

John Ashcroft

Notwithstanding these facts, Chairman Leahy suggested that my opposition to these nominees reflected an inappropriate standard of review, and the suggestion seems to be that any nominee with whom I differed failed to garner my support. I just want to make it clear that differing with a nominee did not mean they didn't get my support.

John Ashcroft

Consider the case of Bill Richardson. In 1996, he was nominated by the President to be the United States Ambassador to the United Nations. As Senator Biden and others will recall, he came before the Senate Foreign Relations Committee on which I sat. I had real policy concerns. We differed on important issues such as international family planning, U.N. peacekeeping operations, and the U.S. funding of a rapidly expanding U.N. bureaucracy.

John Ashcroft

When asked about administration plans to help retire the U.S. debt, Richardson asked the Committee to keep an open mind, and I did. I supported his nomination despite a significant lobbying effort by some groups. Richardson was not an exception. He was part of a larger role; in Chairman Leahy's words, "a standard." I examined the candidate's record in light of the position for which they were nominated. Then I made an objective determination based on the facts.

John Ashcroft

For Federal judicial nominations seeking lifetime tenure, I looked for individuals that understood the difference between interpreting the law and legislating from the bench. For the position of Surgeon General, I looked for someone whose career reflected high ethical standards of the profession. Finally, in the case of William Lan Lee, I considered carefully whether the nominee would enforce the Supreme Court's most recent ruling on racial quotas.

John Ashcroft

Although my review contemplated the nature of the job and the varied responsibilities, the standard consistently ensured that the candidates understood the requirements of the job. I simply wanted to ensure that a judicial candidate understood the judicial role, that law enforcement candidates understood the responsibility to enforce the law of the land, and this was not an overly demanding standard in my judgment. It led me to approve 1,672 of the President's nominees and every one of his Cabinet nominees.

Jon Kyl

So, Senator Ashcroft, would it be fair to say -- and I do not mean to put words in your mouth -- that simply differing on ideological grounds with a nominee was not, in your view, a reason to vote against a nominee?

John Ashcroft

I think it would be a real stretch for members of this Committee to think that I agreed completely with 218 judicial nominees of the President which I voted for. I obviously -- I doubt of the Clinton administration would be doing the kind of job it wanted to do had that been the case, but I believed that it was appropriate to have differences in opinion with those individuals and differences in philosophy and differences in understanding and to recognize and respect them and to vote for their confirmation.

Jon Kyl

I would like to conclude with the matter of victims' rights, something that both Senator Feinstein and I have worked on very hard, and I must say with your strong support which I appreciate very, very much and I know Senator Feinstein does as well.

Jon Kyl

Jon Kyl

Let me go back. You actually worked to gain support of the Missouri constitutional amendment on crime victims' rights. Is that correct?

John Ashcroft

That's correct. Missouri has a very substantial victims' rights framework which I think would be enhanced by a Federal victim rights amendment, and that is the reason why I had worked to try and find a way to get that kind of thing in place federally.

Jon Kyl

And just so members of the Committee will know, I came to you. You chaired the Constitution Subcommittee. I had to talk to you about our amendment, and you were very willing to conduct a hearing and to -- so that we could get our amendment to the full Committee and to the floor of the Senate for it to be considered. I -- again, I thank you very, very much for your cooperation in that regard.

John Ashcroft

Well, I hope I was very accommodating to you.

Jon Kyl

Well, you were, but also you were able to -- you helped us to do that in a very timely fashion. I appreciate that.

Jon Kyl

My time is just about up, but perhaps you could just make a conclusory statement. There is a long list of things that you have done to assist us in the development of the constitutional amendment and to gain funding for victims' rights, to add to the law other protections for victims' rights, a whole litany of things that we could talk about here, but perhaps just a short commitment on your commitment to supporting victims' rights would be appropriate here.

John Ashcroft

Well, if the Justice Department is to be focussed on justice for all Americans, there is a need for justice for those who have been offended as well as those who are the offenders, and the victims' rights amendment and the victims' rights movement is designed to help us have balance in this respect, and as you well know, one of my clear efforts was to make sure that we have a recognition that people can be victimized even if they are not physically abused or assaulted, particularly older Americans who are victimized by fraud and other scam situations. They need to be protected in victims' rights legislation, and that was part of one of the things I sought to do. I commend both you and Senator Feinstein for your effort in this respect.

John Ashcroft

Leaving the enactment arena was not a matter of my choice, and so I will no longer have the ability to sort of advocate in the way for issues like that, that I did previously, but I commend you for your efforts.

Jon Kyl

Mr. Chairman, I would like to have time to respond to the Senator without the time being charged to either side, please, since there was a direct assault in terms of the representations that I had made.

Joe Kennedy III

Patrick Leahy

Following the normal procedure, you can.

Joe Kennedy III

Mr. Chairman, this is the condemnation of the messenger. My good friend from Arizona does not like the message, but the message is out there, and that is what the message is that we have to have that is before this Committee.

Joe Kennedy III

And let's just come back for a minute. I know that the Senator has asked about State involvement in the desegregation cases and the voluntary cases in St. Louis, and he has responded yesterday and he responded today and he is wrong, plain, simple wrong.

Joe Kennedy III

Now, this is what the Adams case in 1980 says. Senator Ashcroft says that he -- the State was not involved in that case. This is the Adams v. United States 1980. The city and the State were jointly responsible for maintaining a segregated school system. In reaching this decision, we note the Missouri State constitution had mandated separate schools for white and colored children through 1976, and the State of which he was Attorney General had not taken prompt and effective steps to desegregate the city schools

Joe Kennedy III

In Brown, 1982, the State again protests liability for this. We, again, note that the State and the city board already adjudged violators to the Constitution, could be required to fund the measures, including measures involving a voluntary participation of the schools. The State was involved.

Joe Kennedy III

The fact is Senator Ashcroft didn't listen to the judges saying that the State was involved. That is the facts, Senator, and I don't retreat on that. I said it yesterday and I will say it again today, and I would hope that he would have a more complete answer because it is clear. And any fair-minded person reading those cases will find that to be so.

Joe Kennedy III

Secondly, I don't retreat in his opposition to failing to meet his responsibilities to register voters in St. Louis. He vetoed one bill, and the Senator listed various Democratic officials saying, "Well, we are glad we vetoed it because it was only targeted on St. Louis."

Joe Kennedy III

Then, the next year, did Senator Ashcroft do anything to try and include registration? No. What happened? The legislature in the State said if he is going to veto it because it just applies to St. Louis, we will apply one that goes to the whole State. What did Governor Ashcroft do then? Veto it again. What has been the bottom line on it? The fact that tens of thousands of blacks were not able to participate in the voting. That happens to be relevant, Senator, because we have just gone through a national debate and discussion and focussed on the question of whether minorities are going to be able to vote, and there are current investigations on that issue. That might not be important to you, Senator, but I think it is important to the quality of the person that is going to be at the head of the Justice Department, and I don't retreat one step on it.

Joe Kennedy III

Now the Senator comes back to the questions on guns, and the question on guns, fine. We talked about the question on the guns. Now Senator Ashcroft voted against closing the gun show loophole and said he would have voted to oppose the assault weapons ban. He will have an opportunity to give this President, whether they want to reauthorize the assault weapons ban. I wish, in response to an earlier question to show how interested he is in enforcing it, he had said, "I would be glad to recommend to the President when it expires, we are going to recommend that he extend that the next time." I would have given him an opportunity to say that. He has voted twice against child safety locks. He has voted against the ban on the importation of high ammunition magazines, voted twice to weaken existing laws by removing background checks, and he led the campaign for concealable weapons that even child molesters who have been convicted in Missouri would be able to acquire. That was defeated by the people of Missouri, and you wonder why we bring up the issue?

Joe Kennedy III

Senator, he used those words that I quoted yesterday. Senator Ashcroft used those words, besides calling James Brady who was shot in the assassination attempt of President Reagan a loyal Republican, a distinguished citizen whose life has been battling those wounds, and you call him the leading enemy of responsible gun owners.

Joe Kennedy III

Then he went on, and I said Senator Ashcroft is so far out of the mainstream. He has said citizens need to be armed in order to protect themselves against a tyrannical government and our government. Our government tyrannical? If the Senator from Arizona doesn't know the difference between the British and insurrection, the American Revolution and this government that has been formed under James Madison and the Constitution, there is a significant one.

Joe Kennedy III

Now, listen to this. Listen to what he said, and this is a quote. This is Senator Ashcroft, "Indeed, the Second Amendment like the First, an important individual liberty that in turn promotes good government. A citizenry armed with the right both to possess firearms and to speak freely is less likely to fall victim to a tyrannical central government than a citizenry that is disarmed from criticizing government or defending themselves."

Joe Kennedy III

Listen to what Gary Wills who has the Pulitzer Prize, wrote about that. Gary Wills, a Pulitzer Prize winner, has written, "Listen, only a mad man, one would think can suppose that militias have a constitutional right to levy war against the United States which is treason by constitutional definition under this."

Joe Kennedy III

I think this nominee owes an apology to the people of the United States for that insinuation, talking about our government now being the source of a tyrannical oppression. That is what I think, Senator. I don't retreat. I don't retreat on any one of those matters.

Joe Kennedy III

I could take other time, Mr. Chairman, but I will halt at this time.

Jon Kyl

Mr. Chairman, I will be brief, if I could as a matter of personal privilege.

Joe Kennedy III

Well, then I will reserve time, too, then, Senator. I thought we were here to consider the nominee.

Patrick Leahy

Following our procedure, the Senator from Arizona has a chance to respond.

Jon Kyl

Simply because Senator Kennedy made some comments directly to me about matters not being important to you, Senator, meaning to me, I respond that all of these matters are important. It is totally appropriate to raise the issues. What I objected to was what I considered to be the mischaracterization of Senator Ashcroft's positions, and every one of my references to Senator Kennedy were direct quotations taken from the transcript. Nothing was misquoted at all.

Jon Kyl

Jon Kyl

Without getting into each of the different substantive issues which Senator Ashcroft ought to have the opportunity to do, I simply would note here that it is important for us to raise the issues, as Senator Kennedy and others have done, to have a calm and rational discussion of all of the import of those issues with respect to Senator Ashcroft's nomination, and to carefully examine how he will apply and follow the law as Attorney General. But I think primarily because most of us are lawyers here, I think it is very important for us to be careful about the language that we use. And, therefore, Senator Kennedy, when you say, well, that may not be important to you, Senator, of course, it is important to me. And when you talk about -- you wonder why we bring up these issues, of course, it is appropriate to bring up the issues.

Jon Kyl

I am concerned here about mischaracterization, and I would assert that when you just now suggest that Senator Ashcroft was asserting that the U.S. Government is a tyrannical government, that is not an accurate representation of his views under any reading of what he has said or listening to what he has said.

Jon Kyl

So I will conclude --

Joe Kennedy III

Well, 30 seconds. These issues are perhaps painful to be examined. Perhaps they are. But they should be. They should be. Each and every one of those issues ought to be examined, Senator, and with all respect, I reject -- if you don't appreciate the way that I present it, I can understand, I will accept that. But I want to make it very clear that I don't -- I would restate those, and I would be glad -- I won't take the chance at this time. I will on the floor of the U.S. Senate take as much time as necessary, and it may take some time to debate those particular issues.

Patrick Leahy

The Chair is about to take a 5-minute break unless the nominee wishes to respond to any of the colloquy that has been going on between the distinguished Senator from Massachusetts and the distinguished Senator from Arizona.

John Ashcroft

I side with the Chair.

Patrick Leahy

We will take a 5-minute recess.

Patrick Leahy

Let us be back in order. The distinguished Senator from Wisconsin, Senator Feingold, is recognized for his round of questions.

Russell Feingold

Senator Ashcroft, we worked together well and cooperatively on the Constitution Subcommittee of this Committee, and I can't help but say, after the exchange earlier --

Russell Feingold

Patrick Leahy

Would the Senator pull the microphone just a little bit closer?

Russell Feingold

I can't help but say, after the earlier exchange, that I will miss working with you on that Subcommittee, but I am relieved that you will not have a vote on those constitutional amendments anymore, because we had a very strong disagreement on that, but it was a very polite disagreement.

Russell Feingold

I would like to spend my time in this round talking primarily about judicial nominations and civil rights. First, on judicial nominations -- and I have said this to you before -- I think the actions of this Committee with respect to the judicial nominations of President Clinton were inappropriate. I believe the Committee acted inappropriately in allowing nominations to languish for months and years without even a hearing. And it seemed, as I have said before, that some didn't even accept the results of the 1996 Presidential election. I think a terrible wrong was done to qualified judges and lawyers, like Bonnie Campbell and Helene White and Kathleen McCree Lewis.

Russell Feingold

Senator Ashcroft, one person whose nomination was never acted upon in the last Congress is Roger Gregory, a lawyer from Richmond, Virginia. President Clinton nominated Mr. Gregory for the Fourth Circuit Court of Appeals, and I know that you are familiar with that because we did discuss it in our meeting.

Russell Feingold

Last month, President Clinton appointed Mr. Gregory to fill that Fourth Circuit position during the Congressional recess, and under this recess appointment, Judge Gregory will serve until the end of this Congressional session unless he is confirmed by the Senate, in which case, of course, he would be on the bench for life. He has, therefore, become the first African-American to serve on the Fourth Circuit in history. And, Senator Ashcroft, recess appointments have been used in the past to integrate the Federal bench. A. Leon Higginbotham and Spottswood Robinson, the first African-Americans to sit on the Third and D.C. Circuits, respectively, were both recess appointments by President Johnson in 1964, and President Kennedy used the recess appointment power to make Thurgood Marshall the first African-American judge on the Second Circuit in 1961. All of these appointments were ultimately confirmed to full life terms.

Russell Feingold

Senator Ashcroft, do you see a problem with the circumstances that in the year 2001 there is not a single African-American who has ever been confirmed for a lifetime appointment to the U.S. Court of Appeals for the Fourth Circuit?

John Ashcroft

Senator Feingold, I believe that we should try to get the best qualified individuals available for judicial positions and that we should try to make sure that our judiciary reflects the kind of population that we have in the country. It's important to do.

John Ashcroft

When I was the Governor of the State of Missouri, I took special care to try and make sure that we appointed individuals who hadn't previously had access to judicial positions. That's why I appointed the first two women to the Court of Appeals benches in Missouri, the first black to the Western District Court of Appeals, the first woman to the Supreme Court, and why I set a record in appointments during my time as Governor for appointing African-Americans to the bench.

John Ashcroft

I think it is important that we have individuals -- and I think there are high-quality individuals representing every quadrant of our culture, and I want to make my understanding and firm belief in that clear. And I would hope that we would have a capacity to see in virtually every aspect of our judicial, in every aspect -- scratch the word "virtually" -- the kind of racial diversity which makes up America.

John Ashcroft

So I don't see any problem in -- maybe I've forgotten the question. I would welcome, I would like to see greater diversity in settings like that.

Russell Feingold

Given your record as you have described it, surely the fact that there has never been an African- American in the Fourth Circuit, which I understand is the largest percentage of any circuit in the country, would trouble you. So I would specifically ask you, to the extent you will be involved, will you support Roger Gregory's nomination and press for confirmation by the Senate so he can serve for life, as do the other judges on the circuit? And, therefore, would you recommend that President-elect Bush not withdraw the nomination?

John Ashcroft

When the President of the United States announced his designation of me as the next Attorney General, he indicated to me he expected me to give him legal advice in private and to give it to him. I owe him that respect and that honor.

John Ashcroft

I think I can say to you that the kind of advice I will give him is reflected in, is likely to be reflected in the kind of effort that I've made when I've had appointing authority. And if the President of the United States chooses to send that name forward for nomination, I will enthusiastically work to make sure that confirmation is achieved.

Russell Feingold

Thank you, Senator. I have high hopes for that one. Now I would like to turn to the Federal death penalty and the broader subject of the death penalty.

Russell Feingold

President-elect Bush supports the use of capital punishment, as I understand you do. While a majority of Americans continue to support the death penalty, a majority of Americans are also increasingly alarmed by the lack of fairness and reliability in the administration of this ultimate punishment. The system is prone to errors.

Russell Feingold

For example, since the 1970's, our Nation has sent, at last count, 93 people to death row who are later found to be innocent.

Russell Feingold

Senator, do you acknowledge that our justice system has made mistakes and that innocent people have been convicted and even sentenced to death?

John Ashcroft

I acknowledge that individuals have been sentenced to death and have been convicted whose convictions have been overturned, and their convictions and sentences were inappropriate when made.

Russell Feingold

Thank you. And then let me follow that by indicating that, as you well know, on December 22, 2000, at the press conference announcing your nomination to be Attorney General, you and President-elect Bush were asked a question about the Federal death penalty system and whether a moratorium on executions is warranted at the Federal level. And I was relatively pleased with President-elect Bush's measured response. He said he supports the death penalty when it is administered fairly, justly, and surely.

Russell Feingold

And in that regard, I would ask if you agree with President Clinton that the gravity and finality of the death penalty demand that we be certain that, when it is imposed, it is imposed fairly.

John Ashcroft

I think it is a very serious responsibility and it should be only after a very reliable process of integrity has been undertaken.

John Ashcroft

When I served as Governor of the State of Missouri, I had the rather awesome responsibility, when the death penalty was reinstituted in my State, of being the last evaluator of the fairness and integrity of the system. Having sat in that setting and having felt that responsibility, I take very seriously doing what we can to make sure that we have thorough integrity and validity in the judgments we reach.

Russell Feingold

Well, in light of that answer, I would ask if you will support the effort of the National Institute of Justice that is already underway to undertake the study of racial and geographic disparities in the administration of the Federal death penalty that President Clinton deemed necessary?

John Ashcroft

Thank you for that. Will you continue and support all efforts initiated by Attorney General Reno's Justice Department to undertake a thorough review and analysis of the Federal death penalty system?

Russell Feingold

John Ashcroft

I thought that's what you were referring to in the first instance, but the studies that are underway, I'm grateful for them. When the material from those studies comes, I will examine them carefully and eagerly to see if there are ways for us to improve the administration of justice. I have absolutely no reason in any respect to think that we want to turn our backs on the capacity to elevate the integrity of our judicial system, especially in criminal matters and, most importantly, in matters that are capital in nature.

Russell Feingold

So those studies will not be terminated?

John Ashcroft

I have no intention of terminating those studies.

Russell Feingold

Thank you, Senator. Now, let me turn to a third area that you and I have discussed on a number of occasions, the issue of racial profiling.

Russell Feingold

At the hearing on this bill last year, I was very pleased to hear you say that you believe the practice of racial profiling is unconstitutional, and I believe you repeated that several times this week. You also said that we need to find out how big the issue is and that this bill, the one that I sponsored with Senator Lautenberg, represented a good start. You said that with some suggested changes you could support the bill, and we had some discussions following that hearing in which we talked about your changes, and, frankly, we agreed to your changes. But in the end, you never joined as a cosponsor of the bill. But here we are today.

Russell Feingold

If confirmed as Attorney General, would you support this bill and encourage its passage in the House and Senate?

John Ashcroft

First of all, I want to commend you for your work in this respect. The hearing which you assembled -- it wasn't my hearing. I was the Chairman and you came to me and asked me if I wanted to address this serious issue, and I said, please, you move forward to do it, you know the territory.

John Ashcroft

It was the first hearing, I believe, in the U.S. Senate on this practice, and not only were you there but Senator Kennedy participated; Senator Torricelli was present.

John Ashcroft

I stated at the hearing that I think racial profiling is wrong. I think it's unconstitutional. I think it violates the 14th Amendment. I think most of the men and women in our law enforcement are good people trying to enforce the law, and I think we all share that view. But we owe it to provide them with guidance to ensure that racial profiling does not happen, and I look forward to working together with you to try and find a way to do that. The President-elect of the United States, unless I heard him incorrectly in one of the debates that I was watching, said very clearly that he rejected the idea that people would be dealt with on the basis of their race. And in my current position, I can't endorse any specific legislation, but I worked with you and you know that I felt good about what you were doing and that, frankly, I talked to you about specific items. I believe that I suggested some ways that the bill could be improved, clarifying that the study is compiled from materials voluntarily collected, which I understand is the intent of the bill.

Russell Feingold

Absolutely.

John Ashcroft

Expanding the kind of data that the Attorney General reviews and clarifying that nothing in the bill changes any burdens of proof of parties in litigation.

Russell Feingold

Senator, in light of those points, which we certainly agreed to, would you support this legislation?

John Ashcroft

Those were the kinds of things that I personally thought were appropriate and would have made the bill, and did, if, in fact, they finally got done. My recollection is not clear. I don't know how I can more clearly say to you that this is a matter that troubles me. There was an indelible moment in the hearing, as a matter of fact, and it wasn't the sergeant that came. It was the videotape of his son. You had the sergeant who was taking his son across one of our States stopped twice.

Russell Feingold

I certainly agree with that. Let me just repeat, though, because I think you are going as far as you can to say you will support this bill. Senator Kennedy said at the hearing this bill couldn't possibly be more modest. All it is about is collecting data. If there is any seriousness on your part or the part of the President-elect about racial profiling, this is a very easy bill to support, and I, again, have high hopes.

Russell Feingold

As Attorney General, what other steps would you take to eliminate racial profiling?

John Ashcroft

Well, as it relates to enforcement by the Department of Justice, I would do my best never to allow a person to suffer solely on the basis of a person's race. As you well know, there are responsibilities for enforcement that are attendant to the Justice Department, and while we have talked about responsibilities of State and local law enforcement officials, it is important that the Federal Government be leading when it comes to respecting the rights of individuals and the Constitution. And I will do everything I can to make sure that we lead properly in that respect.

Russell Feingold

Will you make racial profiling a priority of yours?

John Ashcroft

I will make racial profiling a priority of mine.

Russell Feingold

Switching to another area, should a law called the McCain-Feingold law pass and come to the President's desk and he signs it, will you vigorously support that law in your role as Attorney General in terms of it constitutionality, your role in advising the Solicitor General?

John Ashcroft

Well, there are lots of things that I disagree with that I believe it would be the responsibility of the Attorney General to defend vigorously in court. I have to look at specific legislation with that in mind. I disagreed in policy on that bill, but I believe it's most -- it would be hard for me to imagine that the bill does not survive the kind of scrutiny which would provide an instruction to the Solicitor General to defend the bill in every respect.

John Ashcroft

I failed to support the bill because of policy reasons and reservations about the Constitution, but I had not concluded that it couldn't survive muster. And I would expect, depending on the bill, how it comes out, it's my responsibility to defend the enactments of the U.S. Senate.

John Ashcroft

There is another little caveat on that. If the enactment of the U.S. Senate seriously impairs the prerogative of the Executive, that presumption in favor of the Senate and the House action abates somewhat, and that was true as it related to this Justice Department, which had a different view of the line-item veto, as did many Members of the Senate and House. Pardon me. I've misspoken again. I was thinking of my time as a Senator, and I correct myself. I'm sorry to have done that.

John Ashcroft

But I would expect to defend the laws enacted by the Congress vigorously, and I wouldn't see any reason to expect that McCain-Feingold -- or Feingold-McCain, pardon me, sir -- would be any different.

Russell Feingold

Patrick Leahy

As I announced earlier, the distinguished Senator from Iowa is wearing his hat as incoming Chairman of the Finance Committee. He has been at the hearing for the Secretary of the Treasury this morning, and he has come back with us. I understand there is no objection for him to ask his questions at this point.

Patrick Leahy

Chuck Grassley

First of all, to the Chairman and to my colleagues allowing me this special privilege to probably go out a turn, I appreciate very much the opportunity and want to congratulate the Attorney General designee on the forthrightness with which you have answered questions thus far. I have only heard more on television than I have heard in person, but I think you are doing what needs to be done and that is to show your ethical and moral uprightness, and that is to do what the oath of office requires. You are trying to quell the concerns of the members of this Committee, as you should, and I think that you are doing it adequately. I hope as time goes on, more members will feel your sincerity.

Chuck Grassley

First of all, there have already been some questions on antitrust asked. One was on airlines, mergers, and the enforcement of the antitrust laws in regard to that. So I am not going to get into that area, but I do want to associate myself with them. I think it was Mr. Kohl, my staff told me, that had asked those questions. I want to associate myself with those concerns. I am sure that those are concerns, being from small-town Missouri as you are, that you understand the same concerns that we have in Iowa.

Chuck Grassley

I would like to start with the issue of agricultural antitrust, agribusiness antitrust. Here again, I think serving with you in the U.S. Senate and knowing a large part of Missouri's economy is agriculture, I am sure you have sympathy toward some of the things I am going to ask, but at the same time, I know that we have antitrust laws that are 110 years old. To some extent, I think that they need to be amended. That is not really so much the issue I am going to discuss with you, but how you look at the existing law.

Chuck Grassley

I am extremely concerned about increased agribusiness concentration, reduced market opportunities, obviously fewer competitors in the marketplace, and then, consequently, the inability of farmers and producers to obtain fair prices for their products.

Chuck Grassley

I have also been concerned about the possibility of increased, collusive, and anticompetitive activity, and I know that the farmers from Missouri are also worried about these issues and that you share the farmers' concerns about competition in agriculture.

Chuck Grassley

The Antitrust Division of the Justice Department enforces Federal antitrust laws. The current administration, while it has paid lip service to farmers, really hasn't dedicated time and resources to agriculture competition issues.

Chuck Grassley

So I would like to get a commitment from you as much as you can give me, understanding you work for the President of the United States, that the Antitrust Division under your watch will pay heightened attention to any possible negative, horizontal, and vertical integration implications of agribusiness mergers and acquisitions that come up for review before your Department.

Chuck Grassley

I would also like a commitment from you that the Antitrust Division will aggressively investigate allegations of anticompetitive activity in agriculture, and that would include agribusiness, a step above the producer of agriculture.

Chuck Grassley

Could you give me an assurance that the agricultural antitrust issues then -- this would just be one question -- would be a priority for this Department of Justice, your Department of Justice?

John Ashcroft

Well, I thank you for your leadership in this area. You rightly mentioned that as a neighbor when I had the privilege of serving in the Senate some of the difficult times that producers have faced because of consolidations and mergers which have limited the sources or the places into which they can sell their products have been a real challenge, and my record is pretty clear on this.

John Ashcroft

I sponsored legislation to try and elevate the understanding of the Antitrust Division in the Justice Department about agricultural issues, legislation that would have placed people solely responsible for focussing on agriculture in that position.

John Ashcroft

I also would indicate that I am aware of the fact that there are other agencies that act in this respect. The Packers and Stockyards Act needs enforcement, and we need the right personnel, I think, and at least that has been my position legislatively when I had the privilege of being in the Congress.

John Ashcroft

I thank you for framing your question and with the understanding that I will be part of an administration, and when it comes to policy issues, I will be guided by the administration, but this is a law enforcement issue and I think it is fair for me to say that I will enforce to the best of my ability and with a perspective that understands some of these challenges that I don't think have been thoroughly understood previously in the antitrust evaluations, merger evaluations. At least I will want to make sure they are understood. Whether or not they have been previously is a matter for debate.

John Ashcroft

I want people to -- who are assessing proposed mergers and consolidations to not only look at the consumer for impact, but to look at the producer for impact because I think competition has to be viewed on a pretty broad scale. It is with that in mind that I will try to work with the antitrust laws to make sure that we continue to have a competitive marketplace for agriculture.

Chuck Grassley

I have already written to the present Attorney General and the Antitrust Division about my concern about the Tyson's-IBP merger, and I know that you aren't there yet, you can't do anything about it, and all I can do is urge adequate enforcement of the laws. So I would ask you to take a special look at and, as best you can today, assure me that the Antitrust Division under your watch will carefully scrutinize this specific transaction so that farmers and consumers can be confident that competition will not be harmed.

John Ashcroft

I am pleased to say to you that I will welcome your letters when I am -- if I am confirmed and if I have the privilege of serving as Attorney General, and that I will give attention to the enforcement of these laws.

John Ashcroft

I don't want to make a statement in this hearing today which would affect the value of these entities in any way --

Chuck Grassley

I know you can't.

John Ashcroft

-- Positive or negatively as they are significant enterprises, but my intention is to enforce the law relating to antitrust effectively and appropriately, and can assure you that if you call upon me for status reports or advising me to give matters complete and thorough attention, I will welcome those communications.

Chuck Grassley

You referred to some special attention that you would give agriculture the extent to which it is appropriate in the table of organization. Right now, there happens to be a position in the Antitrust Division that focusses specifically on agricultural antitrust issues. This position was created by the former Assistant Attorney General, Joel Klein, last year. Would you retain that position?

John Ashcroft

You know, I'll be very eager when I get to the Department to assess the way the resources are allocated, and I don't want to start to redraw or reinforce the organization chart as it now exists. It would be presumptuous on my part. I have not been confirmed.

John Ashcroft

I can assure you that I will devote the kind of resources that are necessary to address merger and consolidation issues in the agribusiness community.

Chuck Grassley

Some time ago, I requested the General Accounting Office to review the Packers and Stockyards Act enforcement efforts to the Agriculture Department's Grain Inspection Packers and Stockyards program. That is referred to by the acronym, GIPSA.

Chuck Grassley

The General Accounting Office found that the Clinton administration, despite official warnings and internal recommendations made both in 1991 and then again in 1997, had not made critical changes to GIPSA's administrative structure and staff as recommended in these two previous reports, one, a previous General Accounting Office report, a second one, a report by the Inspector General within the Department of Agriculture. So then we have a General Accounting Office report as much as 8 years later saying you didn't do what we told you to do way back then.

Chuck Grassley

As a consequence, we find the U.S. Department of Agriculture being very ineffective in carrying out its statutory responsibilities to prevent anticompetitive practice in the livestock industry. You happen to have joined me in introducing a bill which mandated implementation of the General Accounting Office's report's recommendations to strengthen the U.S. Department of Agriculture's Packers and Stockyards program within a 1-year timeframe. So that is law.

Chuck Grassley

One of the legislation's provisions requires that what hopefully will be your Department, the Justice Department, is to assist the U.S. Department of Agriculture in investigating livestock competition violations and enforcing the Packers and Stockyards Act during the timeframe of implementing those recommendations. Would you be sure that your Justice Department carries out the requirements of that law?

John Ashcroft

In addition, could you assure me that the Department of Justice will consult with the Packers and Stockyards Division as it formulates effective competition policies and procedures to enforce the Packers and Stockyards Act?

Chuck Grassley

John Ashcroft

Now I would like to move on to another interest of mine because I got legislation passed in this area, maybe 15 years ago, and this law called the False Claims Act is always under attack. This is not something to answer, but I want you to be aware of people in the health care industry, people in the defense industry who will be trying to, through your Department, get you interested in amending this Act, and if they follow the procedures of the last 7 or 8 years that they have been trying to do this, as simple as it might sound, the end result is gutting the impact of this legislation.

Chuck Grassley

Chuck Grassley

This legislation, for instance, in the last month or so produced an $843-million recovery of fraudulent use of taxpayers' money that went back to the Treasury. Well, I had talked to you privately about this in my office, and so I said I would ask some questions for the record. This Act is under constant attack.

Chuck Grassley

Now, the Justice Department can file its own suits or you can join qui tam-type suits under this legislation. Thus, you as Attorney General would be in charge of a good bit of legislation involving the False Claims Act, in fact, all that you want to be involved in. What you don't want to be involved in, a private citizen can bring, and they can do that even if the Justice Department does not intervene and then, consequently, they are entitled to a share of any judgment or settlement as an encouragement for them to bring forth information about the taxpayers' money being wasted.

Chuck Grassley

I would ask one question. I am concerned that the key people that you will include on your team, meaning the political appointees of the Department, have a positive attitude toward the False Claims Act. I am referring to the Deputy Attorney General, the Associate Attorney General, the Solicitor General, and most importantly, the Assistant Attorney General for the Civil Division.

Chuck Grassley

Before I ask the question, at times during the last 8 years that I asked these very same people who were being appointed by President Clinton, the constitutionality of the Act had not been tested by the Supreme Court. It has been tested, and the constitutionality upheld. So, previously when I asked questions, I was asking them if they would defend the constitutionality of it. Soon, the message got through, and I got the message that they would defend it and they did defend it. Consequently, thank God, the courts backed it up.

Chuck Grassley

So I am asking you, now that we have the constitutionality of the False Claims Act in place, that you will simply see that your people don't do any destructive action to what is already constitutional.

John Ashcroft

Senator, I believe that the laws in place, the constitutionality has been affirmed, and we would treat the law with respect.

Chuck Grassley

On bankruptcy, President Clinton vetoed a very important bankruptcy reform bill at the end of the last Congress. Senator Torricelli and I introduced that in a bipartisan way. It passed with a veto-proof margin, but it was pocket-vetoed. So we didn't have a chance to override it.

Chuck Grassley

Chuck Grassley

I hope to reintroduce that legislation in the next few weeks. I anticipate that bankruptcy reform will continue to enjoy broad support in the Congress. Could I count on you to be an ally in getting the executive branch to support this bill and to work with us in Congress to finally get it enacted?

John Ashcroft

Senator, as you well know that during my time as a U.S. Senator, when I had an enactment responsibility, not just an enforcement responsibility, I supported the legislation and worked to achieve its passage.

John Ashcroft

In terms of determining an agenda, I will work closely with the President of the United States, but I will advise him privately to the best of my ability to help him achieve the agenda that he pursues, and if the President were to agree to pursue this course of action, I would have no difficulty whatever in advancing and supporting this measure.

Chuck Grassley

Could I please ask one question --

Patrick Leahy

-- And it will just be a short answer? Because it is on bankruptcy, but --

Chuck Grassley

Patrick Leahy

The Chair will give extra time. Go ahead.

Chuck Grassley

Well, just a little while.

Chuck Grassley

Now, without the reform bill, the Justice Department, through the Executive Office of the U.S. Trustees, has the power to dismiss bankruptcies that are abusive under Section 707(b) of the Bankruptcy Code. This administration hasn't made this a priority. Would you direct the Executive Office of the U.S. Trustees to make enforcement of Section 707(b) of the Bankruptcy Code a priority?

John Ashcroft

Senator, this is not an area of expertise for me, and I would have to study this and confer with you and ask for advice from people in the Department before I could make a determination about it. I simply have not studied this, and this is an "I don't know" answer.

Chuck Grassley

OK. What I will do is I will follow up with you because you will study it, I know, and then we will be able to discuss it.

John Ashcroft

If you ask me to study it, Senator, I can assure you that I will study it.

Chuck Grassley

Would you please study it, and would you discuss it with me again?

John Ashcroft

I would be delighted to discuss it.

Chuck Grassley

It doesn't necessarily have to be before I vote for you for Attorney General.

John Ashcroft

Well, that's -- that is good to know.

Patrick Leahy

In case the nominee is keeping count.

Patrick Leahy

I thank the Senator from Iowa. I know he has tried to juggle two important things, and I appreciate it.

Patrick Leahy

I will go to one more Democrat and one more Republican, and we have one former colleague and one current colleague here. We will have the two members do their questioning. It will be Senator Schumer and Senator DeWine, and then we will hear from Senator --

Jeff Sessions

You got two of them down here.

Patrick Leahy

What?

Jeff Sessions

Two of us on this end.

Patrick Leahy

No, I understand that, but I am just trying for our schedule --

Jeff Sessions

I can't hear very good. I'm sorry.

Patrick Leahy

I'm sorry. My plan is, so everybody here can understand and plan accordingly, we will have Senator Schumer, Senator DeWine, then we will hear from Senator Collins and former Senator Danforth.

Patrick Leahy

Senator Schumer, you are recognized, and then we will break for lunch.

Jeff Sessions

When do I get to talk?

Patrick Leahy

Well, we want you to be special. So we thought probably as soon as we come back from lunch. We still have Senators to go. I mean, we have Senator Durbin hidden down here at the end, too. You have two more down there, and Senator Cantwell and Senator Brownback. Trust me, you all are going to get a chance. This is not going to be an early evening, I would suggest to everybody here, but when we do break, we will take a 1-hour break.

Patrick Leahy

Go ahead, Senator Schumer.

Chuck Schumer

Well, thank you, Mr. Chairman, and thank you, Senator Ashcroft.

Chuck Schumer

You know, Senator, I sit here and listen to the hearing, and my jaw almost drops. Senator Ashcroft believes Roe v. Wade is the settled law of the land. Senator Ashcroft believes that the assault weapons ban should be continued.

Chuck Schumer

You know, Senator, we fought a lot of these battles in the Senate over the last 2 years. Where were you when we needed you?

Chuck Schumer

Anyway, let me ask a few more of these specifics to flesh out some of these because they are very important. The first question is, when did the law become settled, I guess, in your mind? I guess in 1998, you introduced, along with Senators Helms and Smith, a resolution calling for an amendment to the U.S. Constitution to ban abortion even in the cases of rape and incest, and the amendment would also outlaw several of the most common contraceptive methods.

Chuck Schumer

In that same year, you said, "As a legal matter, the absence of any textual foundation" -- this is a quote -- "for the trimester framework established in Roe has resulted in an abortion jurisprudence that is marked by confusion and instability. It demonstrates the dangers of building a legal framework on the quicksand of judicial imagination rather than the certainty of constitutional text."

Chuck Schumer

So I guess the first question that gnaws at me some is in your testimony, you said it was settled law, and yet, fairly recently, you were fighting hard to change it, to overturn a position I disagree with strongly, but respect your view on it. Can you explain the evolution in the belief?

John Ashcroft

Thank you for the question, and we do disagree on this. Obviously, this is one of those questions upon which I believe reasonable people can disagree.

John Ashcroft

Frankly, if the law weren't settled, one wouldn't need a constitutional amendment to change it if one were wanting to change it, and so the fact that I proposed a constitutional amendment indicated to me that it is not something that is going to be adjusted in another way.

John Ashcroft

In so doing, that was part of a role that I had as a member of the Senate as an enactor of the law rather than an enforcer of the law. There are lots of settled laws, and our constitutional amendments are designed for the specific purpose of overturning settled laws.

John Ashcroft

I think the Court has been signalling an increasing -- and this makes reference to -- I am forgetting which of the members of the panel asked me earlier, but in its most recent case, the Court signaled -- it denied certiorari for a reconsideration, and I think the Supreme Court has said -- that is the Stenberg case.

Chuck Schumer

Right. That is what I think, too.

John Ashcroft

That it said we don't want to be bothered with this. Frankly, I think it is not wise to devalue the credibility of the Solicitor General in taking things to the Court which the Court considers settled, and that is why I explained my other answers the way I did.

Chuck Schumer

I appreciate the answer.

John Ashcroft

I just want to indicate that if you think I have changed to believe that aborting unborn children is a good thing, I don't, but I know what it means to enforce the law, and I know what I believe the law is here and so -- and I believe it is settled.

Chuck Schumer

So let me ask you this, just to follow up. So, if the Solicitor General came to you when you were Attorney General and said I would like to argue a case to overturn Roe, for instance, in the Nebraska case, in the Stenberg case, I think it was Justices Thomas and Scalia who in dissent -- it was just a 5-to-4 case -- said encouraged more cases to overturn the law. Would you urge the Solicitor General, or would you now allow the Solicitor General who would be under your jurisdiction to bring such a case?

John Ashcroft

I don't think it is the agenda of the President-elect of the United States to seek an opportunity to overturn Roe, and as his Attorney General, I don't think it could be my agenda to seek an opportunity to overturn Roe.

Chuck Schumer

And would that apply if, let us say -- because that was a 5-to-4 decision, the Nebraska case, the Stenberg case, but let us say one of our Supreme Court justices stepped down and a new appointment was made and it was at least speculated or viewed that that new justice had a different -- and one of the justices who stepped down would be one of those in the 5 majority -- that this new justice would have a different view, would have sided with the dissent. Would you still urge the Solicitor General to not bring the case?

John Ashcroft

Well, as I said before, I don't think it is the agenda of this administration to do that, and as Attorney General, it wouldn't be my job to try and alter the position of this administration.

Chuck Schumer

Let me ask you a second one related. Let us say that Governor Thompson becomes the Secretary of HHS, and he seeks your legal advice on banning stem cell research, research where we have had great divisions about, but research extremely important to hundreds of thousands of people and their families with Parkinson's disease and other diseases. Would you urge Secretary -- Governor Thompson, but then-Secretary Thompson, given that Roe v. Wade is settled, to keep, to continue to allow stem cell research to continue?

John Ashcroft

I will provide him the best assessment and instruct the Department of Justice to provide him with the best assessment of the law as it exists upon which he can base a decision within the parameters of the statutory framework guiding his activity.

Chuck Schumer

But pursuing that a little, sir, if I might, if you believe that Roe is settled and certainly stem cell research would fall within the confines of the first trimester, then wouldn't your advice have to be to continue stem cell research, and why couldn't you tell us that here today? If not, then I would like to know what Roe being settled means.

John Ashcroft

The way I answered the question a moment ago is the way I want to answer it again, but I will answer it in these words. I will be law-oriented and not results- oriented. I will -- that is my pledge as I move toward the Attorney General's office, and, of course, I can't make good on -- I don't want to be presumptuous. I understand that there is a confirmation process, but I will provide my best advice regarding the law, including the law as expressed by the Supreme Court in Roe v. Wade.

Chuck Schumer

So, just to pursue it a little bit further -- I am just trying to flesh things out here. I am not trying to put you on the spot. These are issues of great importance to so many of us. If the legal opinion, the predominant legal opinion was that stem cell research was allowed, was part of the settled law of Roe, that would be your guiding -- that would be your guiding light here, not an ideological belief that we shouldn't allow it?

John Ashcroft

I will give them my best judgment of the law, and if the law provides something that is contrary to my ideological belief, I will provide them with that same best judgment of the law.

Chuck Schumer

OK. I don't think I can push you any further, although I wish the answer would be a little clearer, but --

John Ashcroft

I am just not going to issue an opinion here.

Chuck Schumer

I understand.

John Ashcroft

I will with all deference --

Chuck Schumer

No, I made it hypothetical that if the law would agree.

Chuck Schumer

Let me go to another one. The President asks you advice whether rape victims should be allowed the right to choose. It comes up in some -- in some context that we probably -- you know, I don't want to -- I don't think it is necessary for the purposes of this question to outline the context. Would you advise him that rape victims should be continued to be allowed their right of choice, even though ideologically you would be opposed because, again, Roe is the settled law of the land?

John Ashcroft

If he is asking me for legal advice, I will provide him with my best judgment. It will not be results- oriented. It will be law-oriented. And I will also answer the President in private, as he has requested me to do.

Chuck Schumer

I don't want to be less than cooperative, but I don't want to try and go through a list of all the potential questions the President might ask me and try and tell in advance someone other than the President what answer he is going to get.

John Ashcroft

Chuck Schumer

Right, but the reason -- and I understand that and appreciate your desire to do that. Of course, though, when you say Roe is the settled law of the land, that has lots of different implications that would be quite contrary to the advocacy views that you had while you were U.S. Senator. We would agree to that, right?

John Ashcroft

Well, it's very clear to me that the settled law of the land protects rape victims. I mean, it is clear that the settled law of the land gives virtually anyone --

Chuck Schumer

That's all I need to hear.

John Ashcroft

-- Any opportunity they want to, to have an abortion. I mean, it is an unrestricted right.

Chuck Schumer

And I would advise him in that respect as to what the law is.

John Ashcroft

John Ashcroft

Let me ask you a series now similarly on gun control. I was very glad to hear that you would support the continuation of the assault weapons ban, which Senator Feinstein carried in the Senate and I carried in the House, so it is obviously important to me.

John Ashcroft

I would just like to ask, in terms of the Second Amendment -- and while some might not believe it, I believe in the Second Amendment. I do not agree with those who think the Second Amendment should be interpreted almost in a non-existent way just for militias, and then we should broadly interpret all the others. But just like you can't scream "Fire" in a crowded theater -- that is a limitation on our First Amendment rights -- there are limitations on the Second Amendment as well. And some of my friends believe there should be no limitations, and that is where I disagree with them.

John Ashcroft

But let me ask you this, these four issues, do you think any of them violate the Second Amendment? The Brady law?

John Ashcroft

Chuck Schumer

The assault weapons ban?

John Ashcroft

I think you have answered that.

Chuck Schumer

Chuck Schumer

Licensing and registration, which many States obviously have now.

John Ashcroft

I don't -- I don't believe that -- if the Senate were to pass it, I would defend it in court and argue its constitutionality.

Chuck Schumer

Argue for its constitutionality?

John Ashcroft

Thank you. Now, how about just your own personal view, in a different -- you know, on closing the gun show loophole, the Lautenberg amendment. I know you supported a 24-hour closing, but many of us supported a 72-hour because we thought at gun shows 24 hours wasn't enough to do an adequate check, particularly since most of them occur on the weekends. Would you support a 72-hour closing of the gun show loophole?

Chuck Schumer

John Ashcroft

You know, I believe in closing the gun show loophole. What I would like to see us is to improve our capacity to respond to inquiries a lot more rapidly. I think it's pretty clear that at least my personal view has been for the past several years that we need to fully implement our ability to provide instant checking. And I think that's the best way of handling that, and I think doing that is something that's achievable.

John Ashcroft

So my approach to this would be to have the Department exercise as much of its energy as it can to close the loophole by virtue of improving our capacity to have instant checks that are reliable, valid, and workable.

Chuck Schumer

And I agree with you. I have no problem with insta-check when it is available and when it is working. But in the past, some, at least, have used the lack of insta- check availability in many States -- some have used --

John Ashcroft

I think when -- well, pardon me.

Chuck Schumer

Let me just finish and flesh out and then we will go to the next one. But many have used or some have used the lack of availability of insta-check in many States to stand in the way of a law, a 72-hour law, longer waiting period, because you just couldn't get the checks out on the computer that quickly because State records were not up to date.

Chuck Schumer

So, again, let me repeat, if we found that in a good number of States -- and that is the case -- that the insta-check system were not yet available, would you support a 72-hour wait for closing the gun show loophole, which most of us regard as a rather modest step?

John Ashcroft

Well, the problem with the 72-hour wait is that gun shows frequently last about 72 hours, and that's been a problem in terms of saying that if you're going to provide no one can buy a gun, that tension I think is one that I'd want to respect, and I'd try and accommodate that. It's not my desire to shut down this setting.

John Ashcroft

If I'm not mistaken -- and I might stand correction here -- I think when the juvenile justice bill came back, it had the Lautenberg amendment in it, and I think I voted for the juvenile justice bill in that setting. And that may be an answer to that question.

Chuck Schumer

I think, Senator -- and, obviously, we don't want to hold you to every little bit, but I think it never got back from conference. Maybe Senator Leahy --

John Ashcroft

Pardon me. I didn't mean get back. I think I meant -- they're telling me I meant final passage. And on final passage, I did vote for it and it had Lautenberg in it.

John Ashcroft

I think what -- may I just add this little bit --

Chuck Schumer

I think what --

John Ashcroft

What's clear -- I voted for it, I think, in that setting. What is -- and I'm not sure about that. But what I am sure about is that if it's passed, I'll defend it. And I'll not only defend it, but I'll enforce it. And I'll enforce it vigorously.

Chuck Schumer

But in terms of your own opinion, do you think that this 72-hour check -- you voted, I think -- and the record could correct me as well. And I don't want to -- you know your record better than I do. I think you may have voted against the amendment but then voted for the final bill.

John Ashcroft

I think that's correct.

Chuck Schumer

The staff guy is shaking his head yes, so I would trust him.

John Ashcroft

Well, you can see a lot better than I can. You don't have to turn around to look at him, and I do. That's your hard luck, because I don't have to look at him, only in rare instances.

Chuck Schumer

So has your position evolved any on the 72-hour check?

John Ashcroft

Well, I guess what I'm saying is that my position, as I leave the enactment arena, was mixed. I probably, as a stand-alone provision, voted against it but wasn't so opposed to it when it came back in the final product that it would stop me from voting for a very important bill. I guess that's a little bit of an academic question now. The voters of Missouri settled my ability to vote on those bills when I was not re-elected to the Senate. And I would vigorously defend and enforce the measure.

Chuck Schumer

And almost from the point of view of argument, it just follows from the argument you would not recommend the President veto a bill that had the 72-hour gun show loophole in it? Given that you voted --

John Ashcroft

I would advise --

Chuck Schumer

-- For it in the past.

John Ashcroft

-- The President to the best of my knowledge on legal matters. They will not be results-oriented. They will be law-oriented advices. But I will give those to him upon his request, and I really don't want to try and publicly start to hypothetically discuss all the potential questions he might ask me and try and deliver the advice here first. I just don't think that's proper.

Chuck Schumer

The Chair would note for the record that the juvenile justice bill, which passed overwhelmingly from the Senate, went to conference, but -- other than a symbolic meeting, the conference Committee never met, and the juvenile justice bill died at the end of the Congress. The press accounts, which I believe are accurate, said that it died because it closed the gun show loophole. If the gun show loophole provision was taken out, the conference would be allowed to go forward, but with it in, the various gun lobbies said that we would not be allowed to pass it, and --

Patrick Leahy

Jeff Sessions

Mr. Chairman, just a little spin on that a little different. Senator Hatch had a gun show loophole bill that a number of people favored, and I think it passed the first time in a close vote. The Lautenberg amendment passed, the full Senate voted, and as I understand it, Senator Ashcroft voted to support the Lautenberg amendment, and it never came out of conference because that amendment was rejected by the House. The House would not accept it, and your side would not agree to any compromise, and the good juvenile justice bill that a lot of us worked on never came out and up for debate. That's my view of it. I guess everybody has a different view.

Orrin G. Hatch

Let me just end it by saying that the fact of the matter is we couldn't get a consensus to pass it. It was that simple, and let's all work to try and get something done this next year.

Patrick Leahy

Well, the fact of the matter is we never had a conference, so we couldn't seek a consensus --

Orrin G. Hatch

Well, because we knew it was a waste of time.

Patrick Leahy

I have never been able to predict votes that well.

Orrin G. Hatch

I have been pretty good about it.

Joe Kennedy III

Regular order. Can we have regular order, Mr. Chairman?

Patrick Leahy

We haven't had it yet. Why should we start now?

Patrick Leahy

The distinguished senior Senator from Ohio.

Michael DeWine

Mr. Chairman, thank you very much. Senator Ashcroft, the good news is when you get to me, you are getting pretty close to lunch here.

Michael DeWine

Let me just say that I think most of us here can agree -- we are talking about the juvenile justice bill, of which 95 percent of that bill was, frankly, not very controversial. Let's hope that we can get that juvenile justice bill, passed this year Mr. Chairman.

Michael DeWine

Senator, what I would like to do in the time that I have is talk about a few issues that I know are going to be coming in front of you as Attorney General. These are issues in which I have a particular interest, and I think you do as well. To save time, let me go through them. There are four or five of them. And then if you could comment at the end, I think it would probably be the simplest way to do this.

Michael DeWine

The first has to do with what is referred to as international parental kidnapping, an issue that I am very concerned about and an issue that has received a lot of publicity in the last few years. And, quite frankly, to be candid, it is an area where I don't think that the current Justice Department has been aggressive enough, and this is something I have said publicly with the current Attorney General. I would hope that you, as Attorney General, would be more aggressive in this regard. What are we talking about? We are talking about a situation where a U.S. citizen marries a foreign national, they have a child, and they separate or get divorced. One day the American citizen wakes up and the child is gone, and the other parent is gone. The other parent has gone back to his or her country of origin.

Michael DeWine

Addressing these situations has not been a priority of the Justice Department. I would hope it would be with your Justice Department. I think it is often an issue of neglect. It is a question of not setting the right priority. And, often it is a question of ignorance or just lack of understanding of the issue. I think it can be remedied by training assistant U.S. attorneys, and the Justice Department setting a priority. There also should be coordination with the State Department because it is an issue that the State Department hasn't aggressively in dealt with either. This is number one.

Michael DeWine

Number two is an area that you and I have worked on in the past, and that is a setting of priorities for the Justice Department in regard to gun prosecutions. I am talking now about a case where we have a convicted felon who uses a gun or owns a gun, which is against Federal law today -- however, he goes in prosecuted. I would hope that the Ashcroft Justice Department would make this is a priority to go after these individuals as the Bush administration did.

Michael DeWine

The third area is what I refer to as crime technology. It is an area that I have been involved in for the better part of a decade. It is very simple, it is very basic, but it is very important, and that is to make sure that we drive the high technology resources down to local law enforcement. We want not just the FBI but local law enforcement to have access to good DNA work, access to automated fingerprints, access to ballistic comparisons, and access to good criminal records. This is the basics of law enforcement. It is something where the Federal Government can play a unique role. Only the Federal Government really can give the assistance to all local jurisdictions with the understanding that what happens in Xenia, Ohio, in regards to automated criminal records or automated fingerprints will affect the ability of the Missouri police to solve a crime if that defendant happens to go from Xenia to St. Louis.

Michael DeWine

This is an area that you and I have been involved. We passed the Crime Identification Technology Act several years ago, which I wrote to provide an umbrella authorization to get this done. I would just ask you to comment on that, and hope that when it comes time to present your budget you would look at that very favorably. It is basic law enforcement that will, in fact, make a difference.

Michael DeWine

The fourth area is the issue of mental health. We are seeing more and more people in our criminal justice system who have mental health problems. It is something that every law enforcement officer in this country understands and knows about. Part of it has to do with the deinstitutionalization of the mentally ill that has occurred in the last few decades. Part of it is the nature of society. But it is something that I think in our criminal justice system we have to address.

Michael DeWine

We were able to pass last year a bill that I was involved in writing, which provides assistance to local courts in regard to mental health. I wonder if you could also address this one.

Michael DeWine

Finally, I will go back to an issue that has been raised by Senator Kohl and also has been raised by Senator Grassley and several of my other colleagues, and that has to do with the antitrust enforcement. As you know, I am the Chairman of the Antitrust Subcommittee. The ranking member is Senator Kohl. I guess that means that Senator Kohl is the Chairman this week. He and I have worked very, very closely together on antitrust issues. We think they are very, very important. We think that ultimately they determine our ability to compete in the world and our ability -- one of the things that makes us different as a country from other countries is that we have good antitrust laws.

Michael DeWine

I am particularly concerned -- and I am not going to ask you to comment about this because I know that this is something you are going to have to study, and I also know it is something you are going to have to work with whoever is the new head of the Antitrust Division of the Justice Department. But I am very concerned about the consolidation in the aviation industry. This is something that I think we have to look at it. It is, I think, a potential direct threat to consumers when we are talking about getting down to potentially just three, possibly, major airlines in this country, or four. We have some real competition issues. And so I would just use this opportunity, again, not to ask you to comment on it, really, because I don't think it is fair for you to comment at this point, but just maybe to put you on notice this is something that I am going to be looking at. We are going to hold hearings on our Antitrust Subcommittee within the next few weeks, and we are going to take a very, very close look at that.

Michael DeWine

So, John, those are five issues that I think clearly you are going to be dealing with, five issues that I think as the Attorney General you will be confronting, and I would just like for maybe some brief comments in the time you have remaining to tell us maybe some thoughts about each one of those.

John Ashcroft

Thank you, Senator DeWine. I must say that, starting with the first issue, the international parental kidnapping problem is one that you have highlighted and you have brought to the attention of America in ways that have been very helpful. I think many of us would be in a circumstance not to be very affected by this, and it would be an easy thing to just, I suppose, overlook. And I comment for your work there. I would be very pleased to work with you in this respect and the idea of making sure that where interagency cooperation could be beneficial, either through the Department of State or other departments of the Government, to remedying these tragic circumstances.

John Ashcroft

Since it is not as prevalent as some other problems, I guess some folks don't view it as a serious problem. It reminds me a little bit of Ronald Reagan's definition of a recession and a depression: It's a recession if your neighbor loses his job; it's a depression if you lose your job. If it's your child here, this becomes a national issue very quickly. And I thank you and look forward to working with you on it. And to the extent that we could enlist other aspects of the Federal bureaucracy and the Government to act with us to do what's right, I'm very pleased to confer with you.

John Ashcroft

Gun prosecution, the prosecution of gun violence, is very important to me because I think it's essential to public safety. What I think we have is clear indication and evidence that if we prosecute gun crimes, we have the greatest effect in elevating the safety and security of citizens in this country. And it's one thing to have a law on the books that prohibits certain kinds of gun purchases, and if you have hundreds of thousands of gun purchases that are denied because of it, but then you don't prosecute the people who were denied the purchase for making the illegal attempt, we really haven't done anything but force them into the illegal gun market.

John Ashcroft

If my memory serves me correctly, there is an Indiana situation where someone had attempted to make an illegal purchase, not prosecuted, went into the illegal market, acquired a firearm, and shot an African-American individual leaving church. That case sticks in my mind.

John Ashcroft

I think the context of the gun purchase requirements are very important, and in a technical sense, those are against the law and they're criminal acts. But people who actually perpetrate crimes using guns obviously need to be a focus of our enforcement effort. And the most famous of these is the Project Exile, at least for me, best known for me. As you drive across the river here, you see the billboard that says you are on notice, if you use a gun in the commission of a crime, elevated penalties are going to be a consequence for you.

John Ashcroft

And it's not just in Richmond, Virginia. I worked hard when I was a Member of the Senate to get special funding, additional funding for U.S. Attorney Audrey Fleisig in St. Louis because she has a project called Project Cease Fire. I can't answer for the details of all these projects, but I think it's largely the same thing. You deal affirmatively, aggressively, and constructively to say we will prosecute those who commit crimes using firearms.

John Ashcroft

The third issue -- and I look forward to that -- I think is the crime technology issue. During my time as Governor and Attorney General, we sought through the creation of agencies and capacity capability in our State the ability to integrate our effort in a national coordination of data so that we could apprehend criminals. This is a matter of great concern to me because our society is so mobile, and it even has concerned me as it relates to juveniles, because in my home State of Missouri, our population is focused on the borders. Kansas City is one of the two largest cities, St. Louis is the other, and we share those borders with other States. And people move back and forth across those borders, and the interstate availability of information is a very important thing. And to have it available, that you can -- that kind of moving from one jurisdiction can take place on a bicycle. But criminal activity can move from one part of the country to another part of the country now very easily. And whether it's AFIS, an automated fingerprint identification system, or whether it's the next generation, I think, with DNA identification, frankly I think not only for the apprehension of criminals but for the establishment of innocence and guilt with greater certainty, I think these are very important matters that relate to civil liberties as well. I think for our system to elevate the integrity and the likelihood that we get the truth when we make a conclusion is very important.

John Ashcroft

The mental health area is an important area. Immediately I thought of Senator Feinstein's comprehensive methamphetamine anti-proliferation measure which she and I had the privilege of working together on. It was a $55- million-a-year program, but a significant part of that was for treatment. And when I talk to the prosecutors and the justice officials at the State and local level, they tell me that 70, 80 percent of all the people that we incarcerate for criminal behavior committed crimes because they were involved with drugs and substance abuse of one kind or another. And I think if we don't understand that remediation of that particular problem is a part of this and that's a mental health-related aspect of this, I think we're kidding ourselves. That's why I was pleased in the measure that we cosponsored and was passed that we had an attention to that aspect of things.

John Ashcroft

Last, but not least -- and I hope I've given these items the requisite level of attention -- you talked about the Antitrust Division. I will urge the President to appoint an individual who has a capacity to work well in this area. Antitrust is a refined part of the law. I spent some substantial amount of time in antitrust considerations on several issues when I was a State Attorney General. And the President I think will respond. It happens to be one of the things you'll have a chance to influence, because the advise and consent function of the Senate is operative there, and certainly I would welcome your input and the opportunity to confer with you about making a constructive response to that challenge.

Michael DeWine

Senator, thank you very much. Thank you, Mr. Chairman.

Patrick Leahy

Did you have something else?

Michael DeWine

No, it's fine. Thank you.

Patrick Leahy

Incidentally, some in the press have asked if there is anything symbolic about being in the Caucus Room. I don't mean to deflate anything, but it is more the luck of the draw. We started a system of having the Rules Committee, as Senator Ashcroft knows, assign the rooms where you go. I think they do it by computer. But, in any event, the Foreign Relations Committee, which will be hearing General Powell's nomination, needed a large room. There had been some public and press attention to this hearing which indicated the need for a large room. We both asked for a large room. This one was being used yesterday for something else. Foreign Relations didn't need that. A long way around to saying it is coincidence that we are here. I don't want anybody to draw any other conclusion from our location.

Patrick Leahy

I would ask our colleague, Senator Collins from Maine, and our former colleague, Senator Danforth, to come forward and join Senator Ashcroft at the table, as I announced earlier. Once they have finished their statements and any questions that there may be for them, we will then break for lunch. When we break for lunch, it will be a 1-hour break.

Patrick Leahy

Senator Collins, please go ahead.

Susan Collins

Good morning, Mr. Chairman, members of this distinguished Committee. I am pleased to be here today on behalf of my friend, John Ashcroft, and I thank those hearty few who have remained to hear my testimony before you break for lunch.

Susan Collins

Let me begin by saying that if I were to tell the members of this Committee that I had a candidate for Attorney General who had attended one of the Nation's finest undergraduate institutions and law schools and had served for 8 years as a State Attorney General, 8 years as a Governor, and 6 years as a U.S. Senator, I doubt there would be much by way of concern about that candidate's professional experience.

Susan Collins

That is exactly the case that we have here with John Ashcroft. Nevertheless, his nomination has generated a controversy noteworthy for its intensity. Given John's record of public service and his personal integrity, it is fair to conclude that the genesis of this controversy is his political philosophy.

Susan Collins

Concerns have been raised that John is simply too conservative to enforce the laws with which he disagrees. In responding to these concerns, let me first make clear that I have disagreed strongly with John on a number of issues. Our views on abortion rights, among many other issues, are far apart. But I have absolutely no doubt that John will fully and vigorously enforce the laws of the United States regardless of his personal views. He not only has given me personal assurances, but also has testified under oath before this Committee that he will do so.

Susan Collins

This situation is not unique to John Ashcroft. Virtually every Attorney General has had to enforce laws with which he or she has disagreed. Our most recent Attorney General is no exception, as Senator Thurmond has pointed out. Despite her personal opposition to the death penalty, Attorney General Reno has approved Federal death penalty prosecutions in 176 cases. Moreover, a fair examination of John's record shows that both as Attorney General and as Governor of Missouri, John has enforced and acted in support of laws with which he has personally disagreed. Several examples of this have already been provided to the Committee on issues ranging from abortion to gambling.

Susan Collins

Ultimately, this question comes down to our assessment of how John will exercise his judgment. Will he use his discretion wisely, fairly, and appropriately? I would suggest to this Committee that the best proof we have that he would do so can be found in the decisions that John made last November.

Susan Collins

The circumstances surrounding the Missouri election are well-known to all of us. The significance of the seat to the composition of the Senate is obvious. That is why I am addressing Senator Leahy as "Mr. Chairman" today. And the determination with which John campaigned demonstrated how intent he was on winning this race. And yet when tragedy intervened at the end of the campaign, John acted in a manner that we can all admire, and that was a testament to his good judgment.

Susan Collins

John could have pursued a legal remedy for which he had strong grounds. After all, the Constitution sets forth just three requirements for a U.S. Senator, and the third is particularly relevant in this case. It expressly states that "No person shall be a Senator. . .who shall not, when elected, be an inhabitant of that State for which he shall be chosen." This constitutional requirement would have given John grounds to contest the election, and many legal experts contend he would have prevailed in court.

Susan Collins

Despite his fervent desire to win and despite the fact that the court system was there to provide him with an avenue to continue his quest, John chose not to pursue legal action. Instead, he used his discretion to act in a manner that showed compassion to the family of a political rival and concern for the people of his State, an exercise of discretion that was clearly contrary to his personal political interest.

Susan Collins

Like many Americans, I was deeply moved watching John's speech when he announced that he was conceding the election and that he hoped that the late Governor Carnahan's victory would provide a measure of comfort for his grieving family.

Susan Collins

Despite the proliferation of the vitriolic rhetoric surrounding this nomination, I hope that the American people will have the opportunity to learn about the John Ashcroft whom I know. The dignity and compassion exemplified in that graceful act last November displayed the essence of the man with whom we served in this great body.

Susan Collins

Thank you, Mr. Chairman, for your courtesy in allowing me to appear before the Committee today.

Patrick Leahy

I thank my neighbor from New England and will assure her that, while I appreciate the appellation of "Mr. Chairman," I am making sure I don't get too used to it.

Patrick Leahy

Our former colleague, the Senator from Missouri, Senator Danforth.

Patrick Leahy

STATEMENT OF JOHN DANFORTH, FORMER U.S. SENATOR FROM THE STATE

John Danforth

Mr. Chairman and members of the Committee, thank you very much for the opportunity to testify. I would like to address the one question that has come up repeatedly in these hearings and repeatedly in the media, and that is whether John Ashcroft's philosophical views, whether his political views would in any way circumscribe his ability and willingness to execute faithfully the responsibilities of Attorney General of the United States. And I would like to speak from 30 years, roughly 30 years of knowing John Ashcroft. I have known him since before he ever got into politics, before he held any public office.

John Danforth

John and I and Kit Bond were in Missouri politics and Missouri government when we were in our early 30's, and all three of us were holding public office for a time, Kit as Governor and John as State Auditor and I as Attorney General. And we were the reform movement in State government. And I want to tell you what the nature of that reform was because I think that it sheds light on the basic question before the Committee as to John's ability to faithfully execute his responsibilities.

John Danforth

What we inherited in State government was the old-fashioned spoils system. What we inherited was government that was based on politics. And we began, starting with the State Attorney General's office, much smaller, of course, than the Justice Department, but really a comparable office. We began to reform the very nature of State government. And the reform was that instead of hiring people on the basis of their politics, we would hire people on the basis of their ability. And we would require a day's work for a day's pay, and we would ask people only to interpret and enforce the law. And we would not impose political views on them.

John Danforth

So we didn't ask people what their politics were, and I have spoken to a law partner of mine who worked for John Ashcroft and asked him whether the rule that I had when I was State Attorney General was the same as John Ashcroft's, and indeed it was. He said he was never asked when he was interviewed for the job about politics. He was never asked about political philosophy. And he told me about a colleague of his in the Attorney General's office who admitted to John, I'm a Democrat. And John said to him that's not relevant to this.

John Danforth

Now, I think that this is an important point to make because it seems to me that someone who is just absolutely bent on superimposing his political views on an office would at least ask people about their politics before he hired them. And John did not do that.

John Danforth

Then in the operation of the office itself, this same law partner of mine who served with John circulated a letter that was addressed to Senator Hatch, and I want to submit the letter for the record. It's signed by 18 people who served as lawyers on John Ashcroft's staff, and the lawyer who circulated the letter told me he could have gotten many more signatures, but he got 18 and sort of ran out of time. But here is the letter that he addressed to Senator Hatch.

John Danforth

"Dear Senator Hatch: The undersigned are former Assistant Attorneys General for the State of Missouri who served in that capacity during John Ashcroft's tenure as Missouri Attorney General. We are writing to state for the record that during our time in these positions, John Ashcroft never interfered with our enforcement or prosecution of the law and never imposed his personal political beliefs on our interpretation or administration of the law we were entrusted to enforce."

John Danforth

That is how he operated that Attorney General's office, and I have no doubt that he would do the same in the Justice Department.

John Danforth

I think it has already been referenced in this hearing, but it is, I think, a very good example of how John approached his job in Jefferson City.

John Danforth

In 1979, then Missouri Attorney General Ashcroft issued a legal opinion on whether religious material could be distributed on property of public schools. His opinion clearly distinguished between his personal views and his legal analysis. He wrote, "While the advance of religious beliefs is considered by me, and I believe by most people, to be desirable, this office is compelled by the weight of the law to conclude that school boards may not allow the use of public schools to assist in this effort."

John Danforth

So for John, the weight of the law determined his conduct in office and not his personal thoughts about desirable actions.

John Danforth

Finally, I would like to say this based on 30 years of knowing this person. I think it was Senator Schumer who asked yesterday, you know, after all this history as a Member of the Senate and fighting all these battles, how can you turn it off as Attorney General? I think the same kind of question is asked to a lot of lawyers. If you are a lawyer, how do you turn off your personal feelings? How do you discharge your responsibility zealously to represent a client? It is a matter really of legal ethics, and it is a matter of how the system works.

John Danforth

But when John Ashcroft yesterday in that very dramatic moment raised his hand and said, "When I swear to uphold the law, I will keep my oath, so help me God," I would say to the Committee that any of us might disagree with John on any particular political or philosophical point. But I don't know of anybody and I have not known anybody in the 30 years I have known this person who has questioned his integrity. That is a given. And when he tells this Committee and tells our country that he is going to enforce the law so help him God, John Ashcroft means that. That is exactly what he is going to be doing.

John Danforth

So I think that the answer to the question, Mr. Chairman and members of the Committee, would his political or philosophical views circumscribe his responsibility to execute faithfully the duties of the office of Attorney General of the United States, the answer in my mind is absolutely certain. He would in no way superimpose his views on the duties of that office.

Patrick Leahy

Thank you, Senator Danforth, and you have had the unique opportunity of testifying in a nomination hearing twice now in this Committee room, once as a Senator and second as a former Senator.

Patrick Leahy

Are there any questions of either of the Senators? Any other questions on this side?

Patrick Leahy

Then we will stand in recess until 2:09.

Patrick Leahy

AFTERNOON SESSION [2:17 p.m.]

Patrick Leahy

When we proceed, we will go first to Senator Durbin of Illinois and then Senator Sessions of Alabama. But I will give an opportunity for everybody to get seated.

Patrick Leahy

The distinguished senior Senator from Illinois, Senator Durbin, is recognized.

Dick Durbin

Senator Ashcroft, welcome again to the Committee. On the day of your nomination, you called me and we talked about this day, and I told you that my first concern was over the Ronnie White nomination for Federal district court judge in Missouri. I will have to tell you, Senator, that this has been a bone in my throat ever since the day that it happened.

Dick Durbin

Dick Durbin

I have said this to the press, and I have said it to you personally. I think what happened to Judge Ronnie White in the U.S. Senate was disgraceful.

Dick Durbin

I am sure that you are well aware of Ronnie White's background, but for the record at this hearing, I would like to say it so that it is here for all to understand.

Dick Durbin

Ronnie White was the first African-American city counselor in the city of St. Louis. He was the only African-American judge on the Missouri Court of Appeals. He served three terms in the Missouri House, was Chairman of the House Judiciary Committee and the Ethics Committee. He became the first African-American to serve on the Missouri Supreme Court in its 175-year history. It was so significant the St. Louis Post Dispatch said that his appointment was "one of those moments when justice has come to pass."

Dick Durbin

At his swearing-in ceremony, it took place in the old courthouse in St. Louis. Having grown up across the river in East St. Louis, I know the history of that building. That was a building where the Dred Scott case was tried twice and where slaves were sold on the steps of the courthouse.

Dick Durbin

That was the man who was elevated to the Missouri Supreme Court, Ronnie White. That was the context of his elevation.

Dick Durbin

And as I look at your decision to oppose his nomination, which led to a party-line vote defeating him, I am troubled. I am troubled by what I think is a mischaracterization of Ronnie White's background, his temperament, his judicial training, his experience on the bench. He came before this Senate Judiciary Committee and said, with a question from Senator Hatch, that he supported the death penalty. When you spoke against Ronnie White on the floor of the U.S. Senate, you suggested that he was pro-criminal.

Dick Durbin

Well, I might suggest to you that the facts tell us otherwise. In 59 death penalty appeals which Judge White reviewed while on the Missouri Supreme Court, he voted to uphold the death sentence in 41 cases, 70 percent of the time. The record also reflects that Judge White voted with the majority 53 times, 90 percent, on the death cases before the Missouri Supreme Court.

Dick Durbin

His decision were affirmed 70 percent of the time, a significantly better record than his predecessor, who was affirmed 55 percent of the time, a gentleman whom you appointed to the Missouri Supreme Court.

Dick Durbin

And then there was the Kinder case which raised a question as to whether a judge could be impartial, a judge who days before a decision relative to an African-American made disparaging, racial comments in public. You said that the case there was about affirmative action and that it was Judge White's commitment to affirmative action that led to his decision to dissent in that case. In fact, Judge White expressly said in his decision that the judge's position on affirmative action was irrelevant and what was relevant was what Judge White characterized as a pernicious racial stereotype.

Dick Durbin

It is interesting that after you defeated Judge White, the Senate voted him down, the reaction across Missouri. The 4,500 members of the Missouri Fraternal Order of Police wrote, "Our Nation has been deprived of an individual who surely would have been proven to be an asset to the Federal judiciary." It has come to light that your campaign organization contacted law enforcement officers to enlist them in your crusade against Ronnie White. Most of them refused. In fact, the largest organization expressly refused.

Dick Durbin

I find it interesting that this man, who was so important in the history of Missouri, had such an extraordinary background as an attorney, a legislator, and a jurist, somehow became the focus of your attention and your decision to defeat him.

Dick Durbin

One of the statements made by one of your supporters should be a part of this record. Gentry Trotter, a Missouri Republican businessman and an African-American, who has been one of your fundraisers for many years, resigned from your campaign after the vote on Judge White.

Dick Durbin

Trotter said in a letter to you that he objected to your "marathon public crucifixion and misinformation campaign of Judge White's record as a competent jurist." Mr. Trotter wrote that he had never met White, but he suspected that you had chosen "a different yardstick" to measure his record.

Dick Durbin

Senator Ashcroft, did you treat Ronnie White fairly?

John Ashcroft

Senator Durbin, let me thank you for your candor in this matter. I did call you either the day or the day after the President nominated me for this job, and you expressed to me as clearly then as you have now your position. And I appreciate that and I appreciate your feelings in this case.

John Ashcroft

I believe that I acted properly in carrying out my duties as a member of the Committee and as a Member of the Senate in relation to Judge Ronnie White. I take very seriously my responsibility. Pardon me. Let me amend that. I no longer have that responsibility. I took very seriously my responsibility as a Member of the Senate, and I don't mean to say that I still have that responsibility.

John Ashcroft

Judges at the Federal level are appointed for life. They frequently have power that literally would allow them to overrule the entire Supreme Court of the State of Missouri. If a person has been convicted in the State of Missouri but on habeas corpus files a petition with the U.S. District Court, it's within the power of that single U.S. District Court judge to set aside the judgment of the entire Supreme Court of the State of Missouri. So that my -- the seriousness with which I address these issues is substantial.

John Ashcroft

I did characterize Judge White's record as being pro- criminal. I did not derogate his background. I'm not as familiar as you have made us all with his background. It was not my intention to interfere with his background or discredit his background. And, frankly, it's not my intention to comment on his membership on the Supreme Court of the State of Missouri because that's a different responsibility and that's a different opportunity.

John Ashcroft

Not a single Republican voted for Judge White because of a substantial number of law enforcement organizations that opposed his nomination.

Dick Durbin

How many?

John Ashcroft

Well, I know that the National Sheriffs' Association did.

Dick Durbin

The Missouri Federation is one group, and they represent, I think, 70 municipalities. The larger group of Missouri Chiefs of Police, including the cities of St. Louis and Kansas City, refused to accept your invitation to oppose him. Some 456 different law enforcement authorities came to the opposite conclusion you did as to whether Judge White was pro- criminal. Does that give you pause?

John Ashcroft

I need to clarify some of the things that you have said. I wasn't inviting people to be a part of a campaign --

Dick Durbin

Your campaign did not contact these organizations?

John Ashcroft

My office frequently contacts interest groups related to matters in the Senate. We don't find it unusual. It's not without precedent that we would make a request to see if someone wants to make a comment about such an issue. Of the sheriffs in Missouri, 77 of them signed a letter to me saying that I should be very careful in this setting because they had reservations about the way in which Judge White had been involved in a single dissent in regard to the Johnson case.

Dick Durbin

Senator Ashcroft, I am sorry to interrupt you, but the Missouri Police Chiefs Association, representing 465 members across the State including the police chiefs of St. Louis and Kansas City, their president, Carl Wolfe, in an article that appeared in the St. Louis Post Dispatch on October 8, 1999, said his group had received a letter from your office dealing with White's decisions in death penalty cases. He said he knows White personally, has never thought of him as pro- criminal. He said, "I really have a hard time seeing that White's against law enforcement. I've always known him to be an upright, fine individual, and his voting record speaks for itself."

John Ashcroft

I would be very pleased to continue to respond to your question.

John Ashcroft

As it relates to my own objections, I had a particular concern with his dissents in death penalty cases. Judge White has voted to give clearly guilty murderers a new trial by repeatedly urging lower standards for approving various legal errors.

Dick Durbin

In which specific cases?

John Ashcroft

Well, let me begin to address a case. In the Johnson case, Missouri v. Johnson, the Missouri Supreme Court affirmed four death sentences for one James R. Johnson, who went on a shooting rampage in California, Missouri. This was during the time --

Dick Durbin

Senator Ashcroft --

John Ashcroft

-- I was Governor of the State.

Dick Durbin

I am sorry --

Orrin G. Hatch

Let him answer the question.

Jeff Sessions

Let him answer the question. He has been interrupted about five times.

Dick Durbin

Well, I am anxious to have a complete record, but I also want this to be an exchange and dialog as opposed to a complete speech on one side. I am familiar with the case, and I have read it. I would like to ask you a specific question about the case.

John Ashcroft

Well, you have made a number of statements, Senator, and obviously I'm not running this hearing.

Dick Durbin

Please --

John Ashcroft

But I would like to have the opportunity to respond --

Dick Durbin

Please do.

John Ashcroft

-- To your statements, and I think it's fair to put the situation in context.

John Ashcroft

I was going to talk about some other items that you mentioned about the statistics of his dissents. He had four times more dissents than any of the other -- than the Ashcroft appointees to which comparisons have been made on the case. And, frankly, I think it's important to note that just statistical numbers about the times you say guilty or innocent doesn't really prove anything. I mean, if we both took a true/ false test, we might have equal numbers of trues and falses, but you might score 100 and I might score a zero. But he obviously -- and the first case that I would mention is the Johnson case, the Johnson case with the multiple murders. The sheriff's wife was shot while she was conducting a Christmas party for her, I think, church organization, five times. The murderer shot three other -- three law enforcement officers, killing three other law enforcement officers, I believe, and then wounding another law enforcement officer. And the defendant in the case had pleaded -- not had pled but had confessed completely to the crime in a statement that alleged no difficulties or no problems. So that when the case finally was litigated, it was clear that there was no question about whether or not he conducted himself in a way which was somehow excusable.

Dick Durbin

But, Senator, didn't the dissent from Judge White come down to the question of the competency of his counsel? And didn't Judge White say expressly in that decision that if he is guilty, then, frankly, he should face the death penalty? There was no question about it. But if you have read the case, as I have, I cannot believe that you would have hired or would hire if you are appointed Attorney General for the United States the defense counsel in that case to represent our country. The man was clearly lacking in skill in preparing the defense, and that is the only point made by Judge White.

John Ashcroft

Well, I think that being the only point, it's an inadequate point to overturn a guilty verdict for murder.

Dick Durbin

So the competency of counsel in a death penalty case you don't believe is grounds for overturning?

John Ashcroft

It's part of the necessary grounds, Senator, but I believe mere incompetency of counsel without any showing of any error or prejudice in the trial against the defendant does not mean that the case should be overturned. If you'll read carefully -- and I believe you would come to that conclusion -- the opinion of the court here, you'll find that the disagreement in the case was what weight incompetency or alleged incompetency should have and the extent to which the trial should be set aside if there isn't any real evidence that the incompetency or the mistake affected the outcome.

Dick Durbin

Well, Senator, clearly we see this differently, because I am proud that my Republican Governor in my State, even though I support the death penalty, as you do, my Republican Governor in my State has declared a moratorium on the death penalty. I think he has taken the only morally coherent position that if we find DNA evidence that exculpates an individual or if we find a clear case of a capital case where there is evidence of incompetent counsel, it raises a serious question as to whether or not that defendant was adequately represented. And I think that is the point that Judge White.

John Ashcroft

I commend your Governor for following his conscience in that respect. I think that's an option for each Governor and each person in that setting to make a judgment on.

John Ashcroft

I want to make it clear. Defense counsel in the Johnson case decided to advance a theory of a post-traumatic syndrome for an individual who had been involved in Vietnam at one time. It was in so advancing that theory, they alleged that the defendant had set up a perimeter of string and tin cans around his house to alert the defendant of anybody coming in, and also that the defendant had flattened the tires on his own car so as to avoid someone coming in to take his car and use it against him.

John Ashcroft

When the defense counsel alleged this, they sought to prove that he thought he was still back in Vietnam. The truth of the matter is he hadn't done that at all.

Dick Durbin

That was the point that Judge White made --

John Ashcroft

That is the point --

Dick Durbin

-- That any competent counsel would have established the police had put in the perimeter and the defense counsel's defense of mental incapacity was based on a fact that he had not checked on. Incompetent counsel in a death penalty case? I will just say to you, Senator -- we have run out of time here, but for you to reject Judge White based on that decision, on that important issue of competent counsel in a death penalty case, troubles me greatly. This is an extraordinary man with an extraordinary background. I think he was treated extremely poorly by the U.S. Senate, and I am troubled by that.

Dick Durbin

I yield to the Chairman.

John Ashcroft

Do you have anything further to say on that?

Orrin G. Hatch

John Ashcroft

Mr. Chairman, I think that it's important for us to understand that alleging a mistake at trial is not enough. We should show that the mistake at trial made a difference or was very likely to make a difference. And there is a standard such in the law of the State of Missouri, and there is such a standard in the law of the United States of America. And it's pretty clear that that standard was something that Judge White thought simply should be swept aside.

John Ashcroft

That's not my view. That's the law.

John Ashcroft

Now, the consequence of ruling, as Judge White would have ruled in that case, was this: If you and your attorney concoct a lie and it succeeds, you win. But if you and your attorney concoct a lie and it fails, it's incompetency in your counsel and you lose, but you get a new trial.

John Ashcroft

I think we have to look at the result of these cases. Now, I'm prepared to talk about a number of other cases that Judge White ruled in and discuss his positions there. Unfortunately, they're not any less grisly than the four murdered law enforcement officials and their relatives. They reflect, in my judgment, an approach which, if you're one or two of the dissenting judges on the court in Missouri, it doesn't make a difference in the ultimate outcome. But if you turn out to be the sole judge in Federal district court, you have the ability to erase a guilty verdict and provide that a person, once adjudicated guilty for these crimes, is no longer guilty.

John Ashcroft

I know of no regime anywhere that says merely the detection of an error at trial without measuring its impact is -- anywhere in the law where that's in effect. And I don't think it should be in effect here. I believe this is very serious. I believe it's very important. But I don't think there was any reasonable likelihood that the defendant who went in and confessed completely his crimes without reference to any difficulty and without any evidence of involvement in a situation where he was out of control, in a flashback in Vietnam, could later on expect that defense to be sustained.

Dick Durbin

Well, I might say, Mr. Chairman, in conclusion here, if I might, it appears that your conclusion about Justice Ronnie White is a conclusion that is not shared by the law enforcement community of the State of Missouri. A man who has an extraordinary background was given, I think, shabby treatment by the Senate because of your instigation, Senator Ashcroft. And I think that is troublesome.

Patrick Leahy

Senators, we will, I am sure, come back to this issue more, and I will extend extra time to the Senator from Alabama, who has been patiently waiting.

Jeff Sessions

Thank you, Mr. Chairman, and I welcome you, John, back to the pit. You have been doing a tremendous job, and how you can remain cool and thoughtful when we switch from subject to subject, many of them most complex and many of them over quite a number of years, is really a tribute to your intellectual capacity and your clear thinking. And I appreciate that, and I think anybody who has watched this hearing from the beginning will see that you have confronted honestly and directly every allegation or complaint and have explained them in a way that makes sense to them, and it makes sense to me, and I believe the American people owe you that. I believe this Committee owes you that. I believe -- I know that there are groups who care a lot about it, and they have every right to raise issues and complain and ask questions. That is part of this process. I am sure it is not fun, but it is part of it, and we have to go through that. And I value that.

Jeff Sessions

I would just call to my friends on the other side, their attention to the fact that sometimes there are conservative groups that attempt to impose views on how a vote should go in this Committee. Our Chairman, Chairman Hatch, has been approached a number of times to do this or do that on behalf of groups, and he has said no, that he is the Chairman of this Committee, and he alone bears the responsibility for making those decisions, and he has conducted it with great integrity and has been able to keep a proper distance from outside groups who might try to dictate an outcome of a hearing, because it is our duty to get to the bottom of that. I just say that to start with.

Jeff Sessions

And with regard to Justice White, I know Senator Durbin feels strongly about this, and he has looked at it. But I just don't agree. I am not -- you know, we say this is not a racial question. You voted for every African-American judge that has been up here. But a big point is made of his race. I think he should be treated like any other nominee, and that is what is fair. And he does have an important job now, which he will continue to hold. He is one of seven judges there.

Jeff Sessions

Now, before I became a Senator, I was Attorney General 2 years, but for 15 years I spent full-time practicing every day in Federal court before Federal judges. I have the greatest respect for Federal judges. But I can tell you it is a pleasure to go to work before a great Federal judge, and I had the rare opportunity to practice before a series of great ones. But a bad Federal judge can ruin your day. It cannot be a pleasant experience. And they are there forever. And you can go home, and you can be so frustrated that you want to scream. But they are there. They will not be removed. I have often wondered how our Founding Fathers made such a colossal mistake to give a person a job he can never be gotten rid of. The only opportunity the American people have to have public input in who this person will be is at a confirmation hearing. So I think that is what was done in this case, and serious questions were given to it.

Jeff Sessions

There are great powers to a Federal judge. They can grant motions. They can deny motions. They can order discovery. They can rule on search and seizure issues and those sort of things, some of which you can appeal. Many of them either practically can't be appealed or as a matter of deference the Appeals Court will give to them, you can't be successful. There is great power in a Federal judge.

Jeff Sessions

One of the greatest powers in the entire governmental system of this United States is the power of a Federal judge at the conclusion of the prosecutor's case to grant a judgment of acquittal. And at that moment, that defendant is freed, jeopardy is deemed to have been attached under law. He can never be retried no matter how horrible that crime was. Most people don't believe that is true. Trust me. That is the law in America. It is unreviewable power, cannot be appealed.

Jeff Sessions

So I think from the point of view of a prosecutor -- and John Ashcroft served 8 years as an Attorney General who handles appeals on a routine basis before the Supreme Court, they know the importance of making sure that whatever we do, that not on my watch as U.S. Senator from Alabama will I confirm a judge I believe is not fair to law enforcement. Not fair to law enforcement is not fair to victims. Not fair to law enforcement is not fair to justice. So this is a big deal, No. 1.

Jeff Sessions

This Johnson case I believe is also a big deal. Let's sum this thing up. This defendant, a deputy came to his door because of a domestic disturbance. He killed, shot that deputy several times. He laid on the ground moaning. Then the defendant, Johnson, comes out and shoots him through the forehead, murders him there, goes to the home of the sheriff. The sheriff is not there. His wife is in the house with a party, a social of some kind going on. He shoots her five times through the window, killing her, then goes and shoots another deputy, then goes and lays in wait and shoots two more deputies out trying to do something about this event.

Jeff Sessions

He was surrounded, finally surrendered, gave a detailed confession, did not say he was having -- he thought they were Vietcong or he thought he was in Vietnam, he was under attack. He had driven from place to place, as a matter of fact. He did not give that kind of defense. It was a complete confession.

Jeff Sessions

And the defense attorney, I submit, was in a difficult position. Obviously, the prosecutor was not going to agree to a plea bargain of less than death in a case like this. If this isn't a death case, there was never a death case in Missouri. He could not give that death case up. So what would he do?

Jeff Sessions

So they came up with a homerun, goofy defense that it was post-traumatic stress syndrome. That is what they tried to pull off. And it failed. They were caught in it. The defendant was convicted.

Jeff Sessions

To my understanding, they were good lawyers. In fact, there was a hearing at a later date on the competency of the counsel in this case, and they were found to be competent. So they got caught. The truth is that is what jury trials are all about: who is telling the truth, the defendant or the prosecuting witnesses. They concluded that he was not telling the truth. It was a false defense, and they rejected the defense. That happens every day in court all over America.

Jeff Sessions

Now we are going to create -- what Judge White did and why it was big-time significant was he created a circumstance in which you encourage a defense lawyer to try the most outlandish defense scheme to see if they can get away with it, and if they don't get away with it and they get caught, they can ask for a new trial for the defendant.

Jeff Sessions

Why, this is a big deal, and I did not like the language that he used that, well, maybe this is not insanity, Judge White wrote. He said it is something akin to insanity, and we have had some real problems in this country of getting a clear definition of "insanity." After the Hinckley shooting of President Reagan, this Congress dealt with and confronted that difficult question and came up with a much more clear rule for Federal court. To me, his opinion indicated a lack of fully comprehending the importance of a clear definition of insanity in that case in addition to violating the established law about ineffective assistance of counsel.

Jeff Sessions

In an exchange, Senator Durbin, between you and Senator Ashcroft, I don't think you do dispute that it is the established law that you must show not only effectiveness, which I suppose you could say this was ineffective since they tried a defense that didn't succeed, but what other defense did he have, but, second, if it was ineffective from that technical point of view, you don't dispute that it has to have an impact on the outcome of the trial. So that is the established law, I believe, in America, as Senator Ashcroft has articulated, and that is why I think it was a big error.

Jeff Sessions

I didn't like the Kinder case either. I think that was almost a very strange ruling. So that was, to me, significant.

Jeff Sessions

Now, there were serious concerns about Justice White's reputation for law enforcement effectiveness. Seventy-seven sheriffs in the State signed a petition in opposition to his nomination. That is well over half. I am quite sure many of those were Democratic sheriffs in opposition writing to Senator Ashcroft as State Senator opposing that nomination. I think that is very significant. In addition to that, the National Sheriffs' Association opposed the nomination.

Jeff Sessions

The Missouri Federation of Chiefs of Police wrote, "We are absolutely shocked that someone like this would even be nominated to such an important position. We want to go on record with your offices as being opposed to his nomination and hope you will vote against him."

Jeff Sessions

The Mercer County prosecuting attorney's office wrote, "Justice White's record is unmistakably anti-law enforcement. We believe his nomination should be defeated. His rulings and dissenting opinions on capital cases where he did four times as many dissents as his brother justices, in capital cases and on Fourth Amendment cases" -- that is the search and seizure where there is a lot of daily work done there -- "should be disqualifying factors when considering the nomination."

Jeff Sessions

Now, I know that it is no fun. It is a difficult thing in a situation like this to oppose a nomination of somebody who appears to be a good person in every respect, but a lifetime appointment to that bench is very important, and I think we can do better about it.

Jeff Sessions

Do you have anything to add to that?

Patrick Leahy

Don't you agree?

Jeff Sessions

The first one is do you agree.

John Ashcroft

I appreciate your clear explanation of the Johnson case. I think what you have to look for in a case is what will be the rule if the opinion of the judge is embraced. The rule in the Johnson case was is if you try a really whacked-out theory of something and it is revealed as the lie that it is, then you get a new trial because it was an incompetent or ineffective thing to do at trial. If you succeed with it and get them to believe it, you don't need the new trial.

John Ashcroft

What bothered me about the case was that the judge basically wanted to lower the standard, and frankly, what bothered me about the Senator's articulation of the case in addition to the fact that -- well, was that incompetence alone overturns the verdict.

John Ashcroft

As a matter of fact, in the Kinder case, which is another unpleasant case, I mean, this is another case of a woman who was beaten to death with a pipe after being raped by a defendant who had been seen with the pipe shortly before the rape and found with the bloody pipe in his hand after the rape, and the defendant's semen had been found in the victim of the rape. And there was an allegation about a statement that the judge had made prior to the trial in another setting that indicated that the judge was a person who was biased against African-Americans, and the defendant and the victim were both African-Americans in the case.

John Ashcroft

Now, I don't think there is any question about the fact that judges should ever make statements that reflect racial bias. I think swift and sure action should be taken to keep individuals like that from being apart of our judicial system if they are biased, but you have a situation here where there is an alleged bias. I am not going to debate it. But Judge White said that the alleged bias alone should overturn the murder conviction of that young woman, should set aside the murder conviction, and it didn't matter that there has -- that there was no error at the trial, none. There was no allegation of any impact of the bias. As a matter of fact, I believe there was a separate review of the trial by authorities to try and find an indication of bias that affected or otherwise was reflected in the trial and had an impact on the outcome and they couldn't.

John Ashcroft

Missouri v. Irvin is another case. Now, this was not about Judge White urging broad, lenient, legal rules, but it still caused me a great alarm. In order to have a death penalty in Missouri, you have got to be able to say that the crime was committed with cool reflection, torture, or depravity of mind which includes brutality of conduct.

John Ashcroft

In this case, the defendant went to the victim's residence late one night. They appeared to get in an argument. The defendant stabbed the victim, an older man, in the neck and the upper chest and dragged the naked victim out of the trailer in front of others by something tied around his neck. The victim had been stripped of his clothes in the interim. I think the victim was propped up against the tree, and the victim said, "Go ahead. Kill me, James," at which time the defendant beat the victim in the head four to five times with a brick and walked away, and shortly thereafter, when the victim began to move and to moan, the defendant came back again and beat him in the head with a brick, causing fatal wounds.

John Ashcroft

Now, I think there is enough depravity of mind and brutality of conduct in that description to satisfy almost anybody -- almost anybody, but Judge White says it just barely concurs that there is a submissible case of first-degree murder here. Well, it is this kind of view over and over again -- there are other cases -- that I came to the conclusion that this was not a person that I felt should sit in judgment in a setting where the ruling of the single judge could displace the conclusions of the entire Supreme Court of Missouri.

John Ashcroft

Now, in these settings where he was the solo or with one other judge in dissent, that is a different circumstance, and I don't comment on that.

Patrick Leahy

The Chair would note it has given the same amount now of extra time to both the Senator from Alabama and the Senator from Illinois.

John Ashcroft

I thank the Chair.

Jeff Sessions

Could I just have 1 second to wrap up?

Patrick Leahy

Well, the Senator from Alabama, then, will have more time. Let's go ahead.

Jeff Sessions

I would just want to say that there was a hearing later on these competent counsel. The judge found him competent and, in fact, said they were highly skilled attorneys, devoted hundreds of hours to the defense. They were privately retained attorneys, not public defenders. They were professional trial lawyers with extensive experience. One had been a leader in the Criminal Defense Bar. Another one had graduated with Judge White from college. They were all three competent and capable attorneys trying to make the best defense in a difficult circumstance, and I don't think they should be rewarded for failing in that effort.

Patrick Leahy

I know the Senator from Alabama wanted to note the fairness of both the Republican and Democratic leaders in this Committee.

Jeff Sessions

I will note that, Mr. Chairman.

Patrick Leahy

The distinguished senior Senator from Delaware, as I noted before, has been absent because of chairing the Powell hearing. So, at this point, he is able to rejoin us. I yield to him.

Patrick Leahy

I would also note that the Senator from Delaware did not have the 3 to 4 minutes of opening statement he would have had yesterday. He is entitled to that today as well as his 15 minutes, should he want it.

Joe Biden

I thank the Chair. I will try not to take all my time, and I do apologize to Senator Ashcroft and my colleagues for not being here.

Joe Biden

Yesterday, I had the privilege of representing the Senate and giving one of the eulogies for our colleague, Alan Cranston, in San Francisco, and that is why I was not here.

Joe Biden

I am for a very brief fleeting moment Chairman of the Foreign Relations Committee, and I am chairing the Committee on the Powell nomination as we speak. That is by way of explanation of my absence.

Joe Biden

I asked the Chairman, and he was kind enough to put in an opening statement yesterday. I just want to read one paragraph from my opening statement:

Joe Biden

You are to become the people's lawyer more than you are to be the President's lawyer. Consequently, the questions relating to your nomination are not merely whether or not you possess the intellectual capabilities and legal skills to perform the task of Attorney General and not merely whether you are a man of good character and free of conflict of interest that might compromise your ability to faithfully and responsibly and objectively perform your duties as Attorney General, but whether you are willing to vigorously enforce all the laws in the Constitution, even though you might have philosophic disagreement with them, and whether you possess the standing and temperament that will permit the vast majority of the American people to believe that you can and will protect and enforce their individual rights. That was my opening statement in 1984 when I was considering how I would vote on the nomination of Edwin Meese. I cite that only to say that my standard that I have applied -- and I have told you on the phone, Senator, and I appreciate you calling me and us finally catching up with one another -- has been consistent for the 28 years I have been a United States Senator.

Joe Biden

My greatest concern is on questions relating to race. I will try not to tread on the various issues that have been raised here except to say to you on the last point that I have always asked whether or not the vast majority of Americans will believe that you will enforce the law vigorously on their behalf, not just whether you will, whether they believe that you will.

Joe Biden

There are only two places that black Americans and all minorities have over the last 40 years been able to go with some sense of certainty that their rights would be vindicated and aggressively pursued. One has been the Federal courts, and some State courts, but primarily the Federal courts. The other has been the Justice Department.

Joe Biden

I sincerely wish, John, you had been nominated to be Secretary of Defense or Secretary of Commerce or Secretary of State or Secretary of anything, but this single job as Attorney General.

Joe Biden

I will, as is not unusual for me, be pilloried by the right and the left for saying this. I find you a man of honesty and integrity. As I said to you, I think you were the classiest person in the last election, the way you bowed out of your race. You did it with class and dignity that was not seen by many Democrats or Republicans in your position, and I have always had a good relationship with you. I think you would agree to that.

Joe Biden

But I told you bluntly what my concerns were when we spoke and what they are now, and for those who suggest that maybe this is a bit of an epiphany, I would suggest that it has been the standard I have applied my entire Senate career.

Joe Biden

I say to folks it does matter what you are nominated for. For example, if I had -- well, let me just say it this way. I am worried, Senator, about the cumulative weight of items that lend the perception at least that you are not particularly sympathetic to African-Americans' concerns and needs, not just the Ronnie White case which is of concern to me, not just the voluntary desegregation order which was obviously a very contentious issue during your tenure back in Missouri, not merely your appearance at the Bob Jones University, not merely your strong opposition to Bill Lann Lee to be the head of the Civil Rights Division, but there seems to be -- not merely your sponsoring an act called a Civil Rights Act of 1997, I guess it was -- don't hold me to that -- which said that no longer could preferences be given in employment and Federal contracts.

Joe Biden

The cumulative weight is what, quite frankly, concerns me, and I raise with you an interview that you did in a magazine -- if this has been raised, please tell me, Mr. Chairman, and I will read it in the record -- in the magazine called the Southern Partisan. That is a magazine to which you gave an interview, and it is a magazine that has been characterized by the Associated Press and other mainstream publications as a southern neo-Confederate publication that regularly vilifies Abraham Lincoln as a tyrant, helps -- and so on and so on. I won't go into all the details, but excerpts from the magazine that I have asked my staff to get for me such as Negroes, Asians and Orientals, Hispanics, Latins, Eastern Europeans have no temperament for democracy, never have and probably never will. Or, a 1996 article that came with the following claim, slave owners did not have a practice of breaking up slave families, if anything, they encouraged strong families to further slaves' peace and happiness. Or, a 1990 Journal article of the same outfit, celebrating former KKK Klansman David Duke as a candidate concerned about affirmative discrimination, welfare, profligacy, and taxation, a popular spokesman for a recapturing of an American ideal.

Joe Biden

It goes on. After a visit by one of the writers for the Southern Partisan to New York, he said, "Where are the Americans? For I met only Italians, Jews, and Puerto Ricans," and the list goes on of these outrageous statements that this magazine carried.

Joe Biden

Now, again, by way of context, it may seem by itself unfair to ask you about this, but were I going to be the Secretary of Interior or were I nominated to be the Secretary of Interior and I had given a long interview with the outfit that is called the Earth Liberation Movement, the one that goes and burns down any dwelling that is on a Federal land in open space, or were I to give interviews to and say some of the things you said about this magazine to the People for Ethical Treatment of Animals, if I were going to be the head of the Department of Agriculture, I think that most Midwestern Senators would have a problem. I think most Western Senators have a problem if it were regarding the Earth Liberation Movement.

Joe Biden

Well, I have a problem coming to this Senate on getting involved in politics because of civil rights. My State to its great shame was segregated by law. We have not been very progressive until the 1970's in my State on these issues, and so it bothers me.

Joe Biden

Now, that is a long background to a relatively short question. You gave an interview to that magazine where you said, "Revisionism" -- and I think you have a copy of this -- "Revisionism is a threat to the respect that Americans have for their freedoms and liberty that was at the core of those who founded this country, and when we see George Washington, the Founder of our Country, called a racist, that is just the total revisionist nonsense, a diatribe against American values." Well, so far, so good.

Joe Biden

"Your magazine also helped set the record straight. You have got a heritage of doing that, of defending Southern patriots like Robert E. Lee, Stonewall Jackson, Jefferson Davis. Traditionalists should do more. I have got to do more. We have all got to stand up and speak in this respect, or else we will be taught that these people were giving their lives, describing their sacred fortunes in their honor to some perverted agenda."

Joe Biden

In the introduction of that article, they describe you -- and you can't be responsible for how you are described, I acknowledge, but in the description of it, it says, "John Ashcroft has made a career of public service in Missouri after serving" -- and it goes on and it says that "in a short time in Washington, the Senator has already become known as a champion of States' rights and traditional values. He is also a jealous defender of national sovereignty against the new world order," and so on and so forth.

Joe Biden

Now, I have two questions relating to this, Senator, or actually three. One, were you aware of the nature of this magazine before you gave the interview, and, two, are you now aware, if you weren't then, of the nature of this magazine, and, No. 3, if you are aware now, do you think it was a smart thing to do to give this interview, not just because I am asking you the question?

John Ashcroft

Thank you, Senator, and I appreciate the candor of your remarks. I also appreciate the kind things you have said about me.

Joe Biden

I mean it.

John Ashcroft

If some day there is a President Biden, maybe you will consider Defense and Commerce and those other things for me.

Joe Biden

America is in enough trouble right now.

John Ashcroft

Let me make something as plain as I can make it. Discrimination is wrong. Slavery was abhorrent. The fundamentals of my belief and freedom and liberty is that these are God-given rights, and we have had the stain of slavery in our past, and I recognize that our Nation's history is complicated.

John Ashcroft

It is hard for me to know how Thomas Jefferson could write, "We hold these truths to be self-evident that all men are created equal and endowed by their creator with certain inalienable rights, and that among these is life, liberty, and the pursuit of happiness," and at the same time be a slave owner. And while he owned slaves, I think his articulation of these freedoms planted the seeds that resulted in ultimately doing away with slavery, and so it is complex and complicated.

John Ashcroft

On the magazine, frankly, I can't say that I knew very much at all about the magazine. I have given magazine interviews to lots of people. Mother Jones has interviewed me. I don't know if I have ever read the magazine or seen it. It doesn't mean I endorse the views of magazines and telephone interview, and I regret that speaking to them is being used to imply that I agree with their views.

Joe Biden

No, just to make it clear, John, I am not saying that. I know you better.

John Ashcroft

Speaking to them implies to me an incredible insensitivity, No. 1. No. 2, speaking to them, learning who they are and not condemning them after the fact implies a bit of bull-headedness at the least and a -- I don't know what else, but it ain't good. No, I sincerely mean this. It is a big deal. It is a big deal. You have got 20 million black Americans out there whom you are going to be representing. They are going to look to you and say, "Is this guy going to enforce the law?," and then they are going to say, "Wait a minute. This guy finds out that this outfit is this racist neo-Confederate outfit that writes things about Jews and blacks and Eastern Europeans and immigration, and he doesn't condemn them. He doesn't condemn them."

Joe Biden

Joe Biden

I mean, look, we have all spoken to people we wish we hadn't. We have even had people contribute. I remember Jimmy Carter when he had a picture taken in Ohio and it turns out to be John Wayne Gacy was in the picture. Do you remember that? But after he found out it was John Wayne Gacy and he got arrested, Carter said, "I condemn the guy." He didn't say, "You know, well, I am not really going to have anything to say about that. I talk to everybody about these things, and John Wayne just happened to be there." That is the part that confuses me, John. I don't quite understand that.

John Ashcroft

Well, I condemn those things which are condemnable. I mean, slavery --

Joe Biden

Isn't the magazine condemnable? I mean, isn't the magazine condemnable? They sell T-shirts that says, you know, the assassin was right.

John Ashcroft

If they do that, I condemn them. I mean, if they sell T-shirts saying that Abraham Lincoln should have been condemned, I condemn that. Abraham Lincoln is my favorite political figure in the history of this country.

Joe Biden

Allegedly, they sold T-shirts with a picture of Abraham Lincoln with the words, "Thus always to tyrants," the words of an assassin.

Joe Biden

Anyway, what I still haven't quite gotten, I still haven't quite gotten why -- and by the way, a lot goes by in a campaign. We all understand that. We have all been in campaigns, and we all get faced with the proposition, "gee, if I disassociate myself with that outfit, even though I don't like him, is that going to raise more questions? " I can understand tactical judgments in the middle of a campaign, but what I couldn't understand is why right after this -- and this is called to your attention -- you just don't say boom, boom, boom, "I should have never gone to get a degree from Bob Jones University, I should have never had this interview."

Joe Biden

I mean, as you all know, this place loves contrition. I mean, I have had my share of having to do it. We all make mistakes, but I don't get it. I don't get it.

Joe Biden

And by the way, you are a great supporter of Scalia, as many others are. I mean, Scalia said the same things, your old buddy did. To illustrate the point, he voted on a case to overturn the death penalty that had been imposed on a disgruntled ex-employee of a married couple. The defendant entered the couple's home, shot the wife twice with a shotgun, then shot and killed the husband, and then when he realized the wife was still alive, he slit her throat and stabbed her twice with a hunting knife. In the second case, he wrote an opinion reversing the death penalty that had been imposed on a defendant who had raped and strangled a 13-year-old girl. Should Scalia not be on that Court? That was a publicized case. I raised it on the floor of the Senate. I happen to think he probably made the right decision under our Constitution, but what people are looking for is balance.

Joe Biden

So I would have less trouble with Ronnie White if you had gone to the floor when this decision was made and say, "You know, I am really disappointed in Scalia. He was one of my heroes. He was one of the people I most respected, and look what he just did."

Joe Biden

But nobody says that. I just want you to understand why people are suspect, John. People are suspect not because they believe, at least to the best of my knowledge, because they believe you are a racist. They do not believe it. I do not believe that. But they are suspect because they believe that your ideology blinds you to an equal application of not just the law but the facts, and that is the part that I have told you that troubles me. I mean, what would you all have said if I had gone up here and my justification -- I voted for Scalia, as I tell you. He is a great guy. I told him. I was once asked what is the one vote out of over 10,000 I regretted, it was voting for Scalia. That was the one I most regret. I told him that. He jokes about it. I teach a class in constitutional law. When he found out, he called me and said, "Joe, I have got to come up and co-teach that class with you because you are really probably steering those kids in a different direction than they should go." We have a good relationship and I respect him, but I think he is dead wrong.

Joe Biden

But if I had stood up and said, you know, "I am voting against Scalia for that reason and organized votes", I think you all would have said, "Well, wait a minute."

Joe Biden

I do not know, John. I guess what I am trying to get at, and it is my frustration, because darn, I am not looking to vote against you. I mean, this is not a comfortable thing. Just like my friend from Alabama said when he came. He said, "You know, it is hard to vote against a guy like Ronnie White. He is a decent honorable guy, hard to vote against him, but on the issues he is wrong. He is, obviously, otherwise, a decent honorable man." But you know, that old expression we remember from law school, "Hard cases make bad law." But this is a hard case, and I just want you to know my frustration. I wish you were able to be more forthright -- not forthright -- more direct in your condemnation of things that you know now to be mistaken, and further, I wish you would understand why -- take away the interest groups. I am not a big fan of interest groups, as you probably know. I am not a -- I do not meet with them any more because I do not trust them, with two exceptions in my experience. But I wonder why -- and I will end with this, and I am sorry -- I hope you understand why there are so many -- as this stuff comes out -- so many average black Americans who sit there and say, "Geez, I don't want this guy. I don't want this guy. I am not crazy about having this guy." Just if you understand that, because you are probably going to be Attorney General, and I hope that you take away nothing from this except this matters to people, John. Words matter. Words matter. And unless you have -- the more distraught you are, the less you think you can get representation, the more the words matter.

Joe Biden

Sorry. Sounds more like a lecture than anything else, but I do not mean it that way. That is my frustration.

Patrick Leahy

Senator Ashcroft, do you wish to respond? Obviously, you have time to.

John Ashcroft

Well, thank you very much.

John Ashcroft

First of all, I want the make very clear that I repudiate racist organizations and racist ideas, racist views.

Joe Biden

Is the Southern Partisan Magazine racist, in your opinion?

John Ashcroft

I probably should do more due diligence on it. I know they have been accused of being racist. I have to say this, Senator, I would rather be falsely accused of being a racist than to falsely accuse someone else of being a racist. I have told my children I would rather have my wallet stolen than for me to be someone who steals a wallet.

Joe Biden

I got that, John, but all those folks behind you, your experts, they knew this was coming up. Didn't they tell you what that magazine is? The guy sitting back to your left, he has done ten of these. He has forgotten more -- he has read every one of those issues. You know it and I know it. Didn't he tell you, "Hey, this is a racist outfit?"

John Ashcroft

What more do you need to know?

Joe Biden

John Ashcroft

No. No. I mean, I don't want to be disrespectful, but for you to suggest that I was told that all these things that you have alleged are true, I wasn't told that, and frankly, I have been told that some of them aren't true, and I don't know the source of your things, but I'm not here to challenge what the senators on this panel say. I'm here to express myself --

Joe Biden

John, if I am wrong, you should tell me, because I am operating on this. If I am factually wrong, I would be happy to hear.

John Ashcroft

Well, I'm not -- that's not my purpose. Let me express to you that I believe that racism is wrong.

Joe Biden

I know you do.

John Ashcroft

I repudiate it. I repudiate racist organizations. I'm not a member of any of them. I don't subscribe to them. And I reject them. And had I been fighting in the Civil War, I would have fought with Grant. I probably would have, at Appomattox, winced a little bit when Grant let Lee keep his sword and take his horse home with him, but I think that was the right decision. It was a signal at that time by the people on the ground that they recognized that some people who fought on both sides were people of decent will, and it is not time for us to find out who we should be able to hate now that there is a long time gone by. You know why we should respect Grant. You know why we should respect Lee. This Congress has acted to restore the citizenship of Robert E. Lee, and there are a series of members of this panel that voted in favor of restoring the citizenship of Robert E. Lee. And at the time they did so, they said that the entire nation has long recognized the outstanding virtues of courage, patriotism and selfless devotion to the duty of General Robert E. Lee.

Joe Biden

John, you are good, but this ain't about Robert E. Lee. I just hope when you are Attorney General, you will understand, you have got to reach out.

Patrick Leahy

Gentlemen.

Joe Biden

I have spoken too much.

Patrick Leahy

Did you have further?

John Ashcroft

Well, I don't mean to be -- really, I don't have any purpose for arguing with my friend, and I believe he has a good heart, and he has the right motive here. And his question is: Can I serve America as the Attorney General of this country, and will people be able to have confidence in me? And I assure him that they will. And for those that don't have confidence at the ab initio, if we want to go to the law school phrase, they will, because I will serve and I will serve well. And if the absence of unanimous confidence in any individual becomes a disqualifier, all we do is to invite groups to signal, and lack of unanimous confidence, and they paralyze the system.

John Ashcroft

I will enforce the law. I reject racism. I will reach out to people, all people, and enforce all of the law, and I respect this panel's and this Committee's dedication, and I don't have an argument with the senator.

Patrick Leahy

Gentlemen, we have extended extra time because the senior senator from Delaware was unable -- while representing the Senate at a funeral yesterday, was unable to be here, so he had his time for then and today. The witness has had ample chance to answer the question. Am I correct?

John Ashcroft

I didn't answer all of the things that -- you know, when a person spends 15, 20 minutes asking a protracted question, it does place on the respondent a need to sort of say, "I want to respond to the nature of the questions and not to all of them." And I think I did that. I'm not complaining, not asking. I thank the Chair for its fairness in this respect, and if I come up with something else that I think I should say, maybe I'll submit something.

Patrick Leahy

As I said yesterday, the witness will not have to feel his answers in any way are being cutoff. If the nominee feels at any time there has not been adequate time to answer, as I said yesterday, we will provide the time. I will provide the time to go back to any answer that he wants to change, clarify or add to, and of course, the record is always open for that. As I stated this morning, when I felt that there may have been an errant answer yesterday, I raised that point. Again, if the witness -- the nominee does not accept that analysis, he will also be given time. I want to have as complete a record as possible. I do not want either the nominee to feel that he has not had a chance to answer all of the questions that are asked of him as completely as he wants, but in the same token, I want to make sure that all senators, both Republican and Democrat have the opportunity to ask their questions.

Patrick Leahy

With that, I will turn to the Senator from New Hampshire, Mr. Smith.

Gordon Smith

Mr. Chairman, because of being in and out with another hearing which I was involved in, is it a 15-minute period? How much time do we have?

Patrick Leahy

You have not had a chance?

Gordon Smith

Then you have 15 minutes.

Patrick Leahy

Gordon Smith

Let me just say in terms of watching, participating in the hearings yesterday with you, Senator Ashcroft, and watching how you conducted yourself in response to the questions and the comments, and then again today, my admiration for you is about tenfold beyond what it was yesterday, and it could not get much higher yesterday.

Gordon Smith

Gordon Smith

The way that you have risen above the attacks that have been delivered upon you is remarkable. It is a tribute to you. The fact that a distinguished person like yourself would have to endure comments about racism and segregation and all of the other things that have been said or insinuated throughout this hearing, dredging up racist organization charges and so forth, is really, in my view, demeaning the U.S. Senate.

Gordon Smith

You know this -- I thought we were going to start off in a spirit of bipartisanship this year and to try to look at things if we could on a more even basis. John Ashcroft, the nominee for this position, has said that he will enforce the law period. He raised his right hand and took an oath and said, "I will enforce the law." Even though I know John Ashcroft well enough to know that if he had the choice on the enactment of some of those laws, they would be a lot different, if he could have enacted them unilaterally. But he also said, "I will enforce the law."

Gordon Smith

That is what this hearing is about, whether or not you think John Ashcroft will enforce the law. Not enact the law. He had that opportunity for 6 years here as a U.S. Senator. That is not what this hearing should be about. Let us stay focused on what it really is about.

Gordon Smith

It is ironic too, that where Senator Ashcroft has said that he will enforce the law, even if he would rather change the law, he would still enforce it. On the other hand, his critics from the left are saying that if you cannot agree with my view on the law, you cannot be Attorney General. This is very, very, very, very troubling. You could disqualify a heck of a lot of people from being Attorney General. One of them was an appointment by John F. Kennedy to the Supreme Court of the United States, Byron White, who was pro-life, one of the leading pro-life advocates on the United States Supreme Court. So I guess we would have to disqualify him as well, using that kind of a marker.

Gordon Smith

I think this is thin ice that we are on. This is not a Supreme Court nomination. This is the President's cabinet, and I want to make just a couple of points, Mr. Chairman. I doubt that I will use the 15 minutes.

Gordon Smith

A while back this morning, former Senator Danforth testified, and he made a very good point, I thought, and I would just like to expand on it briefly. As a lawyer, we are talking now about this so-called case before the State of Missouri, the Kansas City case. His point was that as a lawyer, you have an ethical obligation to vigorously defend your client. That is what you are obligated to do. Every day in America we defend the most reprehensible people, murderers, rapists, robbers, thugs, every day, as well we should. It is the basis of our entire Constitution. If we ever walked away from that, God help us.

Gordon Smith

And so I think when we -- we would have to disqualify every single lawyer in America who applies the ethical code of his or her state from being Attorney General of the United States if we are going the use that marker. So I would hope that we would stay focused here, and say that to imply -- even to imply, let alone say, that somehow a lawyer -- in this case the Attorney General who was defending his state as he is obligated to do by law and by the ethics of his profession, to somehow imply that borders or comes to racism is outrageous, and especially since some, even on this Committee, were involved in supporting against the opposition of the NAACP, I might add, and many other prominent people. People on this very Committee were supporting certain candidates for reelection to office in spite of that. So we will let the chips fall where they may.

Gordon Smith

But let me just add one more point. I might just say, Senator Durbin, your quote on the Ronnie White matter, when you were questioning Senator Ashcroft a few moments ago, quote, "It appears that your conclusion about Justice White is a conclusion that is not shared by the law enforcement community of the State of Missouri." I do not know where that came from, but we have a letter from the National Sheriffs' Association, Missouri Association of Police Chiefs, Missouri Sheriffs' Association, all stating their opposition to Judge White. And I might -- and Senator Ashcroft, if you would like to respond or make a comment, feel free to do it. I want everybody to understand -- and I think Senator Ashcroft understands this -- I heard all this stuff about how Senator Ashcroft led the fight to deny Ronnie White. He never spoke to me about it personally, never asked me to do anything other than what my own conscience would dictate. So I guess I am puzzled by all of this information that seems to be coming to light. But let me just refer quickly to a letter from one of the victims, who is also a sheriff. And you know, the issue here -- and I am doing this only to get us back to focus as to what this is about -- Judge White had every right to make the decision he did, as a Judge, every right to do it, but there are consequences for that. The consequences are you could be perceived as being against tough law and order, and that is the way 54 United States Senators saw it. That is not about race. And to imply that it is, is outrageous.

Gordon Smith

Let me tell you what it is about. This is from Kenny Jones, whose wife was murdered. "I'm writing to you about Judge White" -- and I'm not going to read it all, I've entered as part of the record -- "of the Missouri Supreme Court, who's been nominated to be a Federal judge. As law enforcement officers, we need judges who will back us up, and not go looking for outrageous technicalities so a criminal can get off. We don't need a judge like White on the Federal court bench. In addition to being sheriff of Moniteau County, I am a victim of violent crime. So are my children. In December 1991, James Johnson murdered my wife, Pam, the mother of my children. He shot Pam by ambush, firing through the window of our home during a church function that she was hosting. Johnson also killed Sheriff Charles Smith of Cooper County, Deputy Les Lork of Moniteau County and Deputy Sandra Wilson of Miller County. He was convicted and sentenced to death. When the case was appealed and reached the Missouri Supreme Court, Judge White voted to overturn the death sentence of this man, who murdered my wife and three good law officers. He was the only judge to vote this way. Please read Judge White's opinion. It is a slap in the face to the crime victims and law enforcement officers. If he cared about protecting crime victims and enforcing the law, he wouldn't have voted to let Johnson off death row."

Gordon Smith

"The Johnson case isn't the only anti-death penalty ruling by White. He has voted against capital punishment more than any other judge on the court, and I believe there is a pattern here."

Gordon Smith

And he goes on to say, "Please write to our Senators Bond and Ashcroft", et cetera. The point being there is nothing here about racism or segregation, nothing. And to imply otherwise is really, in my view, less than what this Senate should be about, to say it mildly. This is the law enforcement people of the State of Missouri, as well as a victim who was a law enforcement person, and as I said, I respect Judge White for making that decision. He has every right to make that decision. But so do we as people here in the Senate in confirming or not confirming a person to go on the Federal bench. We have a right to use that information and to look at that information and make a decision as to whether or not that person should be on the bench.

Gordon Smith

So I think I am going to stop here, Senator Ashcroft. You have had enough questions, I am sure, to last you a long time, but just to say again that it would be, in my view, one of the most egregious acts ever committed by this Senate, should be filibustered or not be confirmed. A man of your qualifications and decency, it would be -- I just cannot imagine that it would even be thought of in this body to do such a thing. If there is anybody that is more qualified or ever has been more qualified, I do not know who that person is.

Gordon Smith

I understand that Senator Hatch -- is Senator Hatch here? I thought Senator Hatch wanted some of my time. I will be happy to yield it to him or any other senator on my side who would like -- Senator Specter, would you like the remainder of my time?

Dick Durbin

Mr. Chairman? Mr. Chairman?

Joe Kennedy III

[Presiding] Yes?

Dick Durbin

Since the Senator has mentioned my name, I would like to just briefly ask unanimous consent to enter into the record a letter dated October 21st, 1999 from the 4,500 members of the Missouri State Fraternal Order of Police, in which they say, quote, "The record of Justice White is one of a jurist whose record on the death penalty has been far more supportive the rights of victims and the rights of criminals."

Gordon Smith

Well, I have a letter here from the Fraternal Order of Police, Grant Lodge, who support Senator Ashcroft, a letter to Senator Leahy, dated 10 January, supporting Senator Ashcroft to be the Attorney General of the United States.

Joe Kennedy III

Both letters will be included as part of the record.

Gordon Smith

Mr. Chairman, I also have some other documents, the letters from the Sheriffs' Association, and as well as the Supreme Court of Missouri Johnson Case that I would like also to enter in the record.

Joe Kennedy III

They will be so included.

Gordon Smith

Thank you, Mr. Chairman. I yield my remaining time to Senator Specter.

Arlen Specter

How much time remains for Senator Smith?

Patrick Leahy

4 minutes and 30 seconds.

Arlen Specter

With a little extra time, Senator Ashcroft, I would be glad to oblige.

Arlen Specter

I turn to an issue which has been a major one during the administration of the current Attorney General, and that is the issue of independent counsel on a statute which has lapsed. And now the Department of Justice has structured through regulation a classification called Special Counsel. The critical art of that law has been the difficulty -- the Independent Counsel Law, the critical part has been to have any review of the judgment of the Attorney General of the United States in declining to appoint independent counsel. It is possible to structure a legislative review for the special prosecutor, but I would like to explore with you at this time would be first, what are your general views as to the desirability of having an Office of Independent Counsel?

John Ashcroft

I am happy to respond to that. Thank you.

John Ashcroft

May I just -- since there was so much talk about race and the White case in the last -- may I just take a few seconds first to just say that I don't intend my actions or statements to be offensive, and to the extent they are, I'm very ready to say to people that I don't want that to be the case, and that I deplore racism and I always will. And I say to people, who want to look at the confirmation record, that I, for 26 out of 27 black judicial nominees, I voted for them.

John Ashcroft

And in the Foreign Relations Committee, where it was my responsibility to shepherd the appointment of diplomats to our posts around the world, I'm sure, given my assignment, that I saw more people confirmed as minorities to those posts than any other person in that interval during my service.

John Ashcroft

I just want it clear that I reject racism, and that I do not intend my actions or statements to offend individuals, and I sincerely will avoid that in every potential opportunity.

John Ashcroft

Let me address the special counsel item which you have raised.

Arlen Specter

Senator Ashcroft, with only about 2 minutes left, let me zero in on a point of particular interest to me, and I will come back to the generalized question when I have another round.

Arlen Specter

The difficulty has been in having any review of the Attorney General's judgment, and we have had a substantial number of hearings, as you are well aware, in the Judiciary Committee, challenging the judgment of the Attorney General on declining to appoint independent counsel in a number of specific cases, where there was a generalized view there was more than enough basis to do so. Special counsel is the category now, as I have said, for the Attorney General to appoint outside counsel if a conflict arises. It is my thinking that to have an effective Independent Counsel Statute or a category of Special Prosecutor, that there has to be a mechanism for reviewing the judgment of the Attorney General.

Arlen Specter

And what I would like to see structured, either by regulation within the department, as the department now has a regulation for Special Counsel, or a statute which would provide that a majority of the Majority of the Judiciary Committee, or a majority of the Minority -- and I take that standards from the old Independent Counsel Statute -- could go to United States District Court and ask for a review on a standard of abuse of discretion, where there is precedent for the Court to intervene and overturn the exercise of discretion of a prosecuting attorney, and there are some District Court cases on that point.

Arlen Specter

What would your thinking be on such a procedure to review the Attorney General's discretion?

John Ashcroft

I have lamented, as a member of this Committee, the unwillingness of the Attorney General to act in some case, and I'm not sure what the remedy is, but one of my ambitions and one of my aspirations, I should say, if I have the honor of being confirmed in this responsibility, is to increase our participation and our -- the communication and our cooperation. I would be pleased to consider with you this kind of proposal, but this is a delicate arena of the line between the executive and the judicial. And the right oversight is obviously a very important -- pardon me -- executive and legislative -- and the right oversight by legislative officials is very important. So I would be happy to confer with you and to examine these potentials with you.

John Ashcroft

I know that as a career prosecutor -- not a career prosecutor, but once prosecuting and organizing an office of 300 probably prosecutors in Philadelphia, one of the most notable U.S. Attorney's Office in America, that you know the need for the right kind of information flow to the person in direction of the office, and if everything were public, how chilling it could be. So that there are delicate balances here, and I would be pleased to confer with you about these.

Arlen Specter

Let me explore it with you when my next round comes.

Patrick Leahy

I have tried to give the senator from Pennsylvania extra time. He has gone a couple minutes over, and the senator from Washington State has been waiting patiently, and I note that the senator from Washington State is the newest member of the Committee. She was also in attendance on behalf of the Senate at the same funeral as Senator Biden yesterday and did not get her 4-minute opening statement, so if she wants to take that time in addition to her 15 minutes, that is available.

Maria Cantwell

Thank you, Mr. Chairman. I appreciate that and I will defer my opening statement, which was submitted yesterday, and go right to questions, if I can.

Maria Cantwell

Senator Ashcroft, you and I have not met before this morning. I have not had the opportunity the same as my colleagues of working with you in the past, so I look forward to this question and answer session to, if I can, get some specifics on some policy areas in your record as well as the process by which you intend to uphold the law in these key areas. And I will try to be brief in my comments. If you could be brief in your answers, maybe we can get through a couple of these key issues; otherwise, I will come back to you.

Maria Cantwell

But first I would like to go to the environment because obviously, to be sure, the Attorney General plays a significant role in protecting the environment. The Environment and Natural Resources Division of the Department of Justice has been called the Nation's environmental lawyer. In fact, with 700 employees, you could say it is the largest environmental law firm in the country.

Maria Cantwell

The Division is charged with several tasks obviously related to protecting the environment. The Division ensures the environmental laws on the books, whether that is the Clean Air Act or the Clean Water Act or the Endangered Species Act and vigorously enforces on behalf of its primary client agency, the Environmental Protection Agency. It also defends the United States against suits and challenges to Federal laws, and also the Division criminally prosecutes the worst offenders of the environment.

Maria Cantwell

So there can be no doubt that the Department of Justice through this Division has a crucial role in maintaining a clean environment for future generations. Unfortunately, Senator Ashcroft, I am troubled with your environmental record, particularly in attempts to weaken enforcement tools that EPA has, but as has been said at this hearing numerous times, the job of Attorney General is different. Now you will be charged with vigorously enforcing the very environmental laws, some of which you may have disagreed with, and obviously we have covered this, but it is a very important issue that I would like to cover. That is, how do you proceed given that clearly the Environmental and Natural Resources Division exercises this vital role? Will we continue to see an aggressive Division that enforces the current law and goes after polluters? And will we continue to see a very aggressive and vigorous enforcement of the Superfund laws that ensures that environmental cleanup is done and completed?

John Ashcroft

Well, let me thank you very much for your questions, and thank you for the opportunity to meet you this morning. I appreciate the clarity of your questions.

John Ashcroft

I have had an opportunity to enforce environmental regulations before in prior incarnations as the State Attorney General and Governor. Whether it was fish kills or whether it was making sure that the way in which Federal projects were operated and power generation facilities that threatened the wildlife and fish in my home State, I took action. It is an important Division.

John Ashcroft

I believe that we should do everything we can to fully enforce the environmental laws. That doesn't distinguish it from other Divisions of the Attorney General's office. It will be my responsibility to fully enforce the laws in all of them.

John Ashcroft

I have a commitment to the environment personally as well as a commitment to the environment that would come as a result of my oath of office. I happen to be a private environmentalist. Janet and I own a farm of 155 acres which we have tried to maintain in ways that enhance the environment, with cultivating the right kind of trees so it qualifies as a tree farm, sowing the right kind of grasses, and leaving the right kind of borders between the river and the rest of the farm so that we do that.

John Ashcroft

I say that just to let you know that I am a person that believes that our responsibility is one of stewardship, and that certainly would reinforce my willingness to obey the law and to enforce it.

Maria Cantwell

Well, I do have some concerns about your environmental record, but I will leave that aside and get to a specific question that I think may be very timely, and that is, the Department of Agriculture has recently issued a final roadless area conservation rule. Certainly the implementation of the roadless initiative has been long and somewhat controversial. Already the rule is being challenged in the court.

Maria Cantwell

As Attorney General, will you aggressively defend and uphold this rule, which was implemented in accordance with the Administrative Procedures Act? If I am not mistaken, this is exactly the type of case that the Environmental Defense Section of the Environmental and Natural Resources Division of DOJ is charged with defending.

John Ashcroft

Very frankly, I'm not familiar with this rule, and I would have to examine it carefully and make a decision based on the outcome of my consultation with members of the Department and others in the process.

Maria Cantwell

It is a very timely issue, and I would like further information on that as it relates to the particulars of a rule that has now been put in place and obviously is being challenged in the courts.

John Ashcroft

I'll be happy to work to provide you with additional information on that.

Maria Cantwell

My second line of questioning is in regards to family planning. We have learned during the time that you were in the Senate you have advocated what some would describe as an extreme position in regards to reproductive choice and contraception. Many believe -- for example, you were a supporter of human life amendment to the Constitution that would have declared life begins at conception, not fertilization. Many believe that such a binding legal precedent would outlaw common contraception such as the pill. And as I have stated before, you are entitled, obviously, in your previous position as Senator to your opinions. That said, the nominee of the office of the U.S. Attorney General, let me ask you specifically about contraception.

Maria Cantwell

Maria Cantwell

Are your personal views opposed to family planning?

John Ashcroft

I think individuals who want to plan their families have every right to do so.

Maria Cantwell

In the use of contraception?

John Ashcroft

And I think individuals who want to use contraceptives have every right to do so.

Maria Cantwell

So in regard --

John Ashcroft

I think that right is guaranteed by the Constitution of the United States.

Maria Cantwell

So about the laws that create legal rights to contraceptive coverage, for example, the EEOC recently issued a decision stating that employers who failed to include contraceptive coverage in employee health benefit plans engage in sexual discrimination and violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.

Maria Cantwell

Notwithstanding your personal opinion, will you defend challenges to this law or initiate actions against employers who fail to provide such coverage?

John Ashcroft

I have not examined the law on the requirement that a private employer provide coverage in this respect and am at this time not prepared to comment or to provide advice about the course of action I would take there.

Maria Cantwell

And is that something that you wouldn't comment further on before your vote on nomination or just this afternoon?

John Ashcroft

Well, I would defend the rule. You know, it's the job of the Attorney General to defend the rule. But in terms of my own comments about how I feel about it, I haven't weighed the legal -- I thought you were asking me for advice on it. Maybe I misconstrued your question.

Maria Cantwell

Yes, would you defend challenges to the law or initiate action against employers who did discriminate --

John Ashcroft

I would defend challenges to the law and seek to uphold the law.

Maria Cantwell

Including actions against employers who failed to provide such coverage?

John Ashcroft

I'm not sure I have enforcement authority of that rule in the Justice Department, were I to be confirmed. And so I'd be reluctant to say that I would deploy the resources of the Department of Justice to enforce the rule if the enforcement by statute focused in another agency.

Maria Cantwell

Thank you. I would like to cover one last issue, if I could, and it follows some line of thinking similar to some of the questions asked earlier today about judicial appointments. And I guess I'm trying to, if you will, understand the Ashcroft standard on your process of judicial appointments.

Maria Cantwell

There is one judicial appointment that I am familiar with, Margaret McEwen, a Federal judge from the Ninth Circuit Court of Appeals, and I won't go through her various accomplishment, but she was supported by both Senator Gorton and Senator Murray. And in the end, after a 2-year delay, she was confirmed by an 80-11 vote on the floor of the U.S. Senate. So in that particular case, your opposition to Margaret McEwen, I am just trying to understand, again, the Ashcroft standard in looking at the decision in opposition to that appointment.

John Ashcroft

Frankly, I don't remember the case. There were 230 different votes on judges. I do know that 218 times I voted for confirmation, but I don't remember the circumstance.

Maria Cantwell

Well, I would ask if -- this is a very important appointment as it relates to the Northwest, and I guess my concern is in a speech that you gave -- and not to catch you off of comments, because we all give speeches. This was given in March 1997, in which you characterized Margaret McEwen as taking marching orders from the ACLU and characterized her efforts as sinister as it -- in, I thought, a very harsh tone against a nominee that you and 10 other Senators voted against. And so if you could give me information about your opposition to her, and I would be happy to provide a copy of these remarks that were part of the Heritage Lectures. But in trying to understand the framework of us moving forward on your nomination, I am trying to understand the framework of what you applied to other appointees and reflection upon that as you put your own team together in the various divisions underneath you.

John Ashcroft

Well, thank you, Senator. Let me just add this: The standard for judicial nominations and lifetime positions are integrity, a commitment to rule of law, no issue litmus test. President-elect Bush has said he wants judges who will interpret the law, not legislate from the bench. I'll be happy to provide you additional information about the particular inquiry you made, and thank you --

Maria Cantwell

Well, I think my question relates to the fact that she was held up for 2 years and your comments on record have been very harsh. So I'd like to know your criteria and standards, so I appreciate you getting back to me on that.

Maria Cantwell

Patrick Leahy

The Senator from Kansas will be recognized next. For those who are watching this on television, they will see that the little red and green lights have been going on. Somehow that seems to have broken down the last few minutes. I am having the staff notify me when there is 2 minutes left in the Senator's time, and I would just make that announcement as unobtrusively as possible, both for Senator Brownback's case but also for Senator Ashcroft's case.

Patrick Leahy

Patrick Leahy

Senator Brownback?

Sam Brownback

Thank you very much, Mr. Chairman, and thank you, John, for hanging in here. It has, I am sure, been a long day, and you would rather have been at the dentist all day than here with the difficulties. I note some of the discussion back and forth with some amusement at points. The questions on the magazine interview that you did, which I thought was interesting from the standpoint a lot of people do interviews in magazines. I noted that Al Gore gave interviews to Playboy and Rolling Stone magazine, and some of the advertisements in the back of the magazines were for drugs, certain sexual items, paraphernalia, or such that I do not care to really repeat them right here. However, I think it would be fair to assume that Vice President Gore did not endorse those advertisements.

John Ashcroft

Nor do I.

Sam Brownback

Very good.

John Ashcroft

I'll get that out as quickly as I can.

Sam Brownback

And that is not to make light of the line of questioning, but it is to say that there are a lot of publications out there, and none of us endorse these horrible lines that some would put in in those. The ideas of racism, it is just deplorable. But there are a lot of magazines that put a lot of things out there, and just because a person grants an interview doesn't at all mean that they agree or --

John Ashcroft

Let me see if I can clarify this. If the magazine has done the things that people on the Committee have said to me that it does, I repudiate the magazine. I don't want to be a part of a magazine -- I don't even want to do an interview with a magazine that in any way promotes slavery. I don't. That's my not -- I had no understanding that that was the case about the magazine. I don't know if that is the case. But if it is, I repudiate it.

John Ashcroft

Slavery is abhorrent. It's a stain on the fabric of America's history and life, and it's one we've had a hard time scrubbing out. And we never will and perhaps we shouldn't scrub out our memory of it because it should warn us against the kinds of things that people can do to each other.

Sam Brownback

Thank you. I want to go down the line of questioning on a couple things on law enforcement, and I noted, Mr. Chairman, that in the panels assembled for the hearings, nobody has been invited, not a single member of the law enforcement community on these panels. And I find that to be an unfortunate omission since we are here to review the qualifications of the Nation's chief law enforcement officer, the Attorney General of the United States. So with the Chairman's permission, I would like to read and submit for the record a letter I received yesterday from the National Sheriffs' Association endorsing John Ashcroft. It says, "On behalf of the National Sheriffs' Association, I'm writing to offer our strong support for the nomination of Attorney General-designate John Ashcroft. As a voice of elected law enforcement, we are proud to lend our support to his nomination and look forward to his confirmation by the Senate. As you know, NSA is a non-profit professional association located in Alexandria, Virginia, representing nearly 3,100 elected sheriffs across the Nation, and it has more than 20,000 members, including deputy sheriffs, other law enforcement professionals, students, and others. NSA has been a longtime supporter of John Ashcroft, and in 1996, he received our prestigious President's Award. After reviewing Senator Ashcroft's record of service as it relates to law enforcement, we have determined that he will make an outstanding Attorney General and he is eminently qualified to lead the Department of Justice. NSA feels that Senator Ashcroft will be an outstanding Attorney General for law enforcement and the U.S. Senate should confirm him." And it is signed by the president of the organization, and I ask that that be submitted into the record.

Patrick Leahy

That and the other letters from law enforcement agencies which have been sent here will all be -- if they have not already been included in the record, they, of course, will be.

Sam Brownback

I also note along those same lines, I would like to point out that Senator Ashcroft, who has been designated by President-elect Bush to be the Nation's chief law enforcement officer, has also been endorsed by the Law Enforcement Alliance of America. While I won't read their entire endorsement letter, I would like to submit it in its entirety for the record. And I would note at the outset that this is the largest coalition of law enforcement, crime victims, and concerned citizens in the country. They state in here, quote, they are "firmly and vociferously working to ensure that former Missouri Senator John Ashcroft is confirmed as the Nation's highest-ranking law enforcement officer." That is a pretty good endorsement. The LEAA has endorsed President-elect George W. Bush's choice to head up the Justice Department "because of his proven tough- on-crime record, not only in the U.S. Senate but also as Missouri's former Governor and Attorney General. John Ashcroft has consistently demonstrated his profound respect for the sanctity of the law. Because the law and order issue is fundamental to the demands of an Attorney General, Senator Ashcroft exemplifies the kind of individual who can be trusted to uphold the law. There is no doubt that John Ashcroft will be a guardian of liberty and equal justice."

Sam Brownback

Sam Brownback

I ask that be submitted into the record as well.

Sam Brownback

Then from the Kansas Attorney General Carla Stovall, Carla Stovall sent me a letter urging my support for John Ashcroft to the esteemed position of United States Attorney General. While Carla Stovall and I don't agree on all the issues, we have a great deal of respect for each other, and she sent this letter in support of John Ashcroft: "I'm writing to urge you to support John Ashcroft for the esteemed position of the United States Attorney General. Senator Ashcroft, as you know, at one time in his career held the position of Missouri Attorney General and served as the President of the National Association of Attorneys General. I am hopeful he will be responsive to the interest and needs of the States as we deal with the Department of Justice on many issues of mutual concerns. While I have numerous philosophical differences with the positions I've read that Senator Ashcroft has taken over the years, I do believe President-elect Bush should be afforded the right to have the men and women he has selected for key posts be confirmed by the U.S. Senate. I hope his intentions are so honored by your colleagues."

Sam Brownback

I submit that into the record as well.

Sam Brownback

Now, an issue that I think is a major current one facing the country that will be in the hands of the Attorney General coming up is an issue of drugs, in particular methamphetamine. I want to direct your attention -- and I have a couple of questions along that line.

Sam Brownback

I think we have to do everything we can to combat this scourge on the Nation, and at the risk of being repetitive, I have received again another letter yesterday, this one from the Director of the Kansas Bureau of Investigation describing what is taking place in my State in this problem with methamphetamine. And I think we unfortunately are typical of many other places across the country of this scourge of methamphetamine. He states this in his annual report of what is going on in the State of Kansas regarding drugs. He said, "In a word, the bad news is methamphetamine. In law enforcement, we seldom have the luxury of selecting our targets of preference, our goals and objectives. We are compelled to face what is in front of us at the time. We must confront the most serious threats challenging the safety and security of our citizens. In Kansas, the past several years and at the present time and in the foreseeable future, what is in front of us is methamphetamine and local meth labs. Kansas law enforcement seized approximately 700 meth labs. The final count is not yet tabulated, but obviously another record. At any rate, narcotics in general and methamphetamine in particular remain our agency's top investigative and forensics priorities. We have no other choice. Such is the demand for our services and on our resources for municipal, county, and State law enforcement agencies and Kansas prosecutors."

Sam Brownback

To put things in perspective, and then I would like to ask you your views on what we need to do about methamphetamine, our laboratories in 1994 received 5,513 drug case submissions. Last year there were just under 9,000 new drug cases. Meth lab seizures since 1994 have increased almost 15,000 percent. We continue to receive an average of 33 new drug cases in our laboratory every business day.

Patrick Leahy

I would just note the light is back on and it is at 3 minutes.

Sam Brownback

OK. Thank you.

Sam Brownback

I would appreciate your comments on what we should do about meth labs and methamphetamine and its scourge on this country, John.

John Ashcroft

Well, as you well know, Missouri has had the unfortunate distinction of being one of the two meth capitals in America. The State of California and the State of Missouri have led the Nation in meth labs, and it's certainly a sad thing. And I know that local law enforcement authorities have needed the assistance of HIDTAs, high-intensity drug- trafficking area, Federal assistance programs to help us and have also needed the assistance of the DEA, part of the Justice Department, in dealing with the contamination that is left behind when these meth labs are either abandoned or broken down by law enforcement officials.

John Ashcroft

The residue of methamphetamine production, which all can be made from stuff you buy at a variety store, is toxic and it's dangerous. And I think the role that we must take is comprehensive. And I was pleased -- I have mentioned on several occasions the privilege I had of working with Senator Feinstein of California not only to have the right penalty structure so this drug which is characteristic of rural America in many cases has the same seriousness attached to it that some of the urban drugs like cocaine do -- and I think that's not only fair but necessary for us to fight against the drug -- but, second, that we have the ability to clean up and help especially the small -- in my area, a rural sheriff's department doesn't have toxic cleanup capacity, and so we need cooperation there.

John Ashcroft

But methamphetamine has been disastrous to the lives of individuals, and we need to explore treatment and to be emphasizing education. That's why in the last measure which was signed into law just less than 6 months ago we had a component for assisting law enforcement, assisting in law enforcement training, assisting in cleanup, assisting in education, and assisting in treatment. And I think this kind of problem only remediates when we have good cooperation between the local law enforcement officials and people at the national level. And it would be my ambition and my aspiration, if I have the privilege of being confirmed to this office, that we would keep those relationships, some of which you recite earlier, at the very highest level so that we can work together. Methamphetamines are just one series of drug problems that could very well steal a substantial portion of the future of America from us.

John Ashcroft

Our young people are only 25 percent of the population. They are 100 percent of our future.

Sam Brownback

I appreciate your work on that, and I also appreciate your common-sense approach on the protection of the weakest, most vulnerable amongst us in this society, no matter what their stage in life. I think that speaks volumes about a society if we are willing to protect those who are the weakest. And thank you for doing that.

Sam Brownback

We have gone through the first round of questions, and we will now take a break for 10 minutes to allow the witness and others to stretch their legs, and we will come back at the end of that time.

Patrick Leahy

Patrick Leahy

We will give a moment or two for everyone to have a chance to come on in.

Patrick Leahy

So that we all understand the procedure, we are going to go to 5-minute rounds now, and I would really urge members to try to keep it as close to that time as possible and that we do it in the usual fashion.

Patrick Leahy

I understand, Senator Hatch, everybody on your side has had their initial --

Orrin G. Hatch

That is right. Everybody has.

Patrick Leahy

Everybody has on this side, and I know a number of Senators have had other confirmation hearings and have been balancing their time, but let me begin.

Patrick Leahy

In October 1997, President Clinton nominated James Hormel to serve as the U.S. Ambassador to Luxembourg. He was an immanently qualified nominee, had a distinguished career as a lawyer, a businessman, an educator, a philanthropist. He had diplomatic experience as the Alternate U.S. Representative to the U.N. General Assembly. Luxembourg's Ambassador to the U.S., because as we always do with Ambassadors, we check first with the country that he would be sent to, to see if he would be acceptable. They said the people of their country would welcome him. A clear majority of Senators were on record as saying they would vote for his confirmation. That vote never occurred because it was blocked. In the Foreign Relations Committee, only two Senators voted against him, Senator Ashcroft and Senator Helms.

Patrick Leahy

I am told, Senator Ashcroft, you did it without attending the hearing or submitting questions or statements for the record. You did say at a luncheon with reporters that, "People who are nominated to represent this country have to be evaluated for whether they represent the country well and fairly. His conduct in the way in which he would represent the United States is probably not up to the standard that I would expect."

Patrick Leahy

It would appear that you were referring to his sexual orientation, although this is a man that, while you placed a hold on his nomination, all but one other member, Republican and Democrat, in the Foreign Relations Committee voted for him.

Patrick Leahy

Former Secretary of State in President Reagan's administration, George Shultz, strongly supported him. After you voted against his nomination in Committee, James Hormel wrote a letter. He asked to meet with you regarding his qualifications. He followed up with a number of phone calls, to your office. You did not return the phone calls. Your staff did not. You refused to meet him, which is similar to a complaint made by Congressman Conyers, who shared concerns about your nomination.

Patrick Leahy

Now, I know it is traditional for Senators to extend the President's nominees the courtesy of a meeting. I don't think I have ever declined meeting with any nominee of any President when they have asked to. I know of no Senator who has refused to meet with you when you have asked. So I am asking you this. Did you block his nomination from coming to a vote because he is gay?

John Ashcroft

You know, I did not, and I will enforce the law equally without regard to sexual orientation if appointed and confirmed as Attorney General.

John Ashcroft

He just addressed these issues as little bit since they --

Patrick Leahy

Why did you refuse to -- why did you vote against him, and why were you involved in an effort to block his vote -- his nomination from ever coming to a vote?

John Ashcroft

Well, frankly, I had known Mr. Hormel for a long time, and he had recruited me when I was a student in college to go to the University of Chicago Law School.

Patrick Leahy

He was your dean, was he not?

John Ashcroft

At the University of Chicago, he was an assistant dean of the law school.

Patrick Leahy

He, I believe, had focussed his efforts on admissions processes and things like that. The dean of the law school, if I am not mistaken, was a fellow named Phil Neill, but I did know him. I made a judgment that it would be ill-advised to make him Ambassador based on the totality of the record. I did not believe that he would effectively represent the United States in that particular post, but I want to make very clear sexual orientation has never been something that I have used in hiring as in any of the jobs in any of the offices I have held. It would not be a consideration in hiring at the Department of Justice. It hasn't been for me. Even if the executive order would be repealed, I would still not consider sexual orientation in hiring at the Department of Justice because I don't believe it relevant to the --

John Ashcroft

Patrick Leahy

To what extent will the fact --

John Ashcroft

-- Responsibilities.

Patrick Leahy

I am not talking about hiring at the Department. I am talking about this one case, James Hormel. If he had not been gay, would you have at least talked to him before you voted against him? Would you have at least gone to the hearing? Would you have at least submitted a question?

John Ashcroft

I am not prepared to re-debate that nomination here today. I am prepared to say that I knew him. I made a judgment that it would be ill-advised to make him Ambassador, and as a Senator, I made the decision that based on the totality of his record that I didn't think he would effectively represent the United States.

Patrick Leahy

And it was your conclusion that all the other Senators on the Foreign Relations Committee, with the exception of Senator Helms were wrong and you were right; that George Shultz who had been the Secretary of State under President Reagan was wrong and you were right, and the people of Luxembourg who had the full record on Mr. Hormel were wrong and you were right, and you did that without either meeting with him, going to the hearing, asking a single question, or even answering his letter.

John Ashcroft

No. I did not conclude that I was right and they were wrong. I exercised the responsibility I had as a Senator to make a judgment. I made that judgment. I expected other Senators to reach judgments on their own. They have a responsibility to do that. I have a responsibility to do what I did, and based on the totality of the record and my understanding, I made that judgment. I did not pass judgment on other Senators or upon those who endorsed his nomination.

Patrick Leahy

But part of that judgment was to help make sure that these other Senators never got a chance to vote on Mr. Hormel on the floor. So, basically, you substituted your judgment for what appears, at least by those who stated their willingness to vote for him -- you substituted your judgment for a majority of the U.S. Senate.

John Ashcroft

I don't believe I put a hold on Mr. Hormel's nomination.

Patrick Leahy

Never?

John Ashcroft

I don't believe I put a hold on Mr. Hormel's nomination.

Patrick Leahy

If you find otherwise, feel free to correct the record on that.

Patrick Leahy

As one who openly supported Mr. Hormel because of his experience, you made the decision based upon your knowledge and the totality of the evidence, and as a Senator, you had a right to do so. Is that right?

Orrin G. Hatch

John Ashcroft

I mean, we can disagree once in a while around here --

Orrin G. Hatch

John Ashcroft

I think that --

Orrin G. Hatch

-- Or do we just have to play the political correctness game right on down the line?

John Ashcroft

Well, I made a judgment based on the totality of the record. I am one of --

Orrin G. Hatch

I accept that.

Orrin G. Hatch

Now, Senator Ashcroft, isn't it true that while it has been suggested that as Attorney General, you essentially mounted too vigorous a defense of your client in the State of Missouri in the St. Louis school litigation? You were the one insisting to State officials that the court orders be followed. Indeed, didn't the Democratic State Treasurer get so frustrated with your insistence that orders to pay for students' transportation be complied with that he told the press that he was planning to hire outside counsel to mount a more vigorous challenge to these orders? Is that correct?

John Ashcroft

That's my recollection.

Orrin G. Hatch

All right. In other words, while some have criticized you for defending your State in these matters, others, including the Democratic State Treasurer, were criticizing you for not litigating them hard enough. Is that right?

John Ashcroft

Well, so, in fact, you were being criticized for defending the State while the Democratic State Treasurer was resisting complying with the court orders which you were insisting he had to comply with. Now, I sense maybe a little serious hypocrisy here. Isn't what you were doing simply following the law and discharging your duties in defense of your State as a State Attorney General?

Orrin G. Hatch

John Ashcroft

I believe that I was faithfully discharging my duties in protecting the interest of the State and the children in the State. When the State Treasurer balked at writing the checks, it became necessary to send a special delegation from my office to him to indicate to him that we believed compliance with the law was the inescapable responsibility, that we had the duty and responsibility to resist in the courts where we felt like there was injustice, but upon the conclusion of the matter by the courts, our duty, we felt, was to pay the bill, and I still believe that to be the case. And fortunately, the State Treasurer at the time made the decision to abandon plans for a separate counsel and to go ahead and make the payments.

Orrin G. Hatch

Mr. Chairman, I would like to return to one point raised earlier today where Senator Ashcroft was criticized for his defense of the State of Missouri in the school desegregation cases.

Orrin G. Hatch

Well, Jay Nixon, Secretary and Senator Ashcroft's Democratic successor, and the current Attorney General also opposed State funding for desegregation, at least that is my understanding. Is that true?

John Ashcroft

Yes, it is true.

Orrin G. Hatch

Well, let me get it further. Jay Nixon took many of the same positions as John Ashcroft. Yet, Senator Ashcroft has been attacked by some of our Democratic friends, and Jay Nixon has been supported by Democratic friends. Indeed, many of them campaigned for him. Am I wrong in making those comments?

John Ashcroft

I think it is fair to say that he has been supported by Democrats. He is the Democrat Attorney General of the State.

Orrin G. Hatch

I don't blame him for that. I am just saying that it just seems like kind of a double standard to me.

John Ashcroft

Well, the standard that I referred to was the need to represent the State and to defend its interests, but when a matter would be concluded, we complied with the orders --

Orrin G. Hatch

All right.

John Ashcroft

-- Of the Federal District Court and of the Eighth Circuit Court of Appeals and of the United States Supreme Court.

Orrin G. Hatch

Senator Ashcroft, I think Senator Cantwell raised an important issue regarding enforcement of environmental laws in which you have a solid and positive record. For example, as Missouri Attorney General, you aggressively enforced Missouri's environmental protection laws against polluters including an action brought to prevent an electric company from causing oxygen levels and waters downstream from the powerplant to fall, thereby harming fish; and to recover damages for fish kills, a successful action brought against the owner of an apartment complex and an action against an owner of a trailer park for violations of the Missouri clean water law relating to treatment of waste water.

Orrin G. Hatch

Furthermore, as Missouri Attorney General, you filed numerous amicus briefs, friend of the court briefs, supporting environmental protections. For example, Pacific Gas and Electric Co., the State Energy Resources Conservation and Development Commission, a 1983 case, you filed a brief supporting a State of California law that conditioned the construction of nuclear powerplants on findings by the State that adequate storage facilities and means of disposal are available.

Orrin G. Hatch

In Svorhas v. Nebraska, a 1982 case, you endorsed the State of Nebraska's effort to stop defendants from transporting Nebraska groundwater to Colorado without a permit.

Orrin G. Hatch

Let me just mention one more. In Baltimore Gas and Electric Company v. Natural Resources Defense Council, Inc., 1983, you filed a brief supporting the Natural Resources Defense Council's position on tougher environmental relations relating to the storage of nuclear waste.

Orrin G. Hatch

Now, I could go on and on. This is impressive, and as U.S. Attorney General, will you similarly enforce our country's environmental laws?

John Ashcroft

I will enforce the laws protecting the environment, and to do so to the best of my ability. It is a public trust, and it is a special responsibility to the next0 generation.

Orrin G. Hatch

Well, thank you, Senator. My time is up.

Patrick Leahy

Senator Kennedy.

Joe Kennedy III

Of course, Jay Nixon, no matter how nice a fellow he may be, is not up for Attorney General. That is the major difference. That is the big difference in this particular case.

Joe Kennedy III

Joe Kennedy III

Now, Senator Ashcroft, yesterday and today, you testified that you will uphold your oath of office to defend the Constitution. Five times before, you took that same oath. As Attorney General and Governor of Missouri, you said, "I swear to uphold the Constitution of the United States and of the State of Missouri and to faithfully. . .myself in the office, so help me God," and yet, you fought the voluntary school desegregation in St. Louis. In fact, Judge Stephen Limbaugh who was appointed by President Reagan noted that the State has resorted to factual inaccuracies, statistical distortions, and insipid remarks regarding the Court's handling of the case. Limbaugh continued to warn the State to desist in filing further motions grounded in rumor, unsubstantiated allegations of wrongdoing. He added that the State even resorted to veil threats toward the Court to thwart implementation of the previous order. That was his estimate.

Joe Kennedy III

When you became Attorney General in 1976, Roe v. Wade, guaranteeing a woman's right to choose, had been the law of the land, and needless to say, all during this period of time as after the Brown v. Board of Education.

Joe Kennedy III

Now, when you became Attorney General in 1976, Roe v. Wade guaranteed a woman's right to choose, had been the law of the land for 3 years during the period from 1973 to 1976. The Supreme Court had not altered its original ruling that the decision was settled law, but during the period between 1976 and 1992, the 16 years that you served as Attorney General and Governor of Missouri, you became one of the Nation's most aggressive leaders of the strategy to dismantle or reverse that decision protecting a woman's right to choose. You brought case after case in the lower Federal courts. You pressed those cases all the way to the United States Supreme Court. You personally argued the Planned Parenthood case in the Supreme Court. You signed legislation into law to try to overturn Roe and to severely restrict a woman's right to choose, and in a 1991 dinner, you boasted that no State had more anti-abortion cases that reached the Supreme Court than Missouri.

Joe Kennedy III

Isn't there a serious loophole in your view of your oath of office? You say you will enforce the laws of the land as long as they are still on the books, but in the fundamental areas like civil rights, women's rights to choose, gun control, when you don't agree with the laws on the books, you have demonstrated beyond any reasonable doubt that you will use all the powers of your office to undermine those laws, to persuade the courts to overrule them. That is what you have done very time before, every time. So why will it be any different this time?

John Ashcroft

Let me just say to you that I have lived within the rulings of the court in every one of those settings. Roe v. Wade defined a setting which said that abortions were not to be regulated or not to be forbidden, but it left a very, very serious gap in the health care system regarding reproductive health services.

John Ashcroft

If you couldn't regulate abortions, could you have minimal standards for abortion clinics? Could you require that abortions would be conducted by physicians instead of back alleys? Could you require that there be certain conditions like parental consent for minors who were going to have an abortion? Could you require that there be certain counseling so that young women who were going to get an abortion so that they could be assured they were making a decision that was in their best interest and that they understood the health impacts? All of these questions were things that were left unanswered and unresolved by the case of Roe v. Wade, and virtually every jurisdiction in the United States began to find ways to safeguard everything from maternal health to provide the right framework in which to exercise its responsibility as it related to this situation in reproductive health care.

Joe Kennedy III

Well, my point, though, Senator, is that you lived within the rule because you had to. That was the law, but you tried to change and alter and took great pride in it, and we have heard based upon deep-seated beliefs which I respect, but that is the record. You took the oath of office all those times as Attorney General and Governor and still were willing --

John Ashcroft

Senator --

Joe Kennedy III

-- In these areas --

John Ashcroft

Senator, let me respond. We are out of time on this, but I think implicit in what you are saying here is that a person swears to uphold the law. It means if he goes into government, he can't govern by way of changing the law. Every time -- and if you will allow me to answer this question. I have been very patient in this respect.

Joe Kennedy III

And I would just ask the Senate for the right for me to respond.

John Ashcroft

Patrick Leahy

The Chair will give you whatever time you need. I have said that a dozen times during this hearing.

John Ashcroft

Mr. Chairman, I appreciate that assurance as well, but I would like to have an uninterrupted time to explain my position here, and all the assurances of time will not allow me to make a statement which I think I ought to be able to make here, and I think in fairness, I would request that.

John Ashcroft

Now, you have criticized me because I said that I would uphold the law and the Constitution of the United States, and then I did things to define the law by virtue of lawsuits. I did things to refine the law when I had an enactment role which is the job of a Governor when he signs things into the law.

John Ashcroft

I don't think it is subverting the Constitution for a Governor to sign a change in the law. I don't think it is a breaking of his oath. I think all those things are done within the framework of the law and within the framework of the Constitution.

John Ashcroft

There seems to be a misunderstanding here today, and I am sorry that I have this responsibility to clarify it that when someone tests an order in court that someone is defying the law. Frankly, I have always been raised to believe that the way you tested things was take them to court, that the judicial system was established for the purpose -- for the purpose of resolving differences. That is what our -- that is why the Constitution sets it up, and so that, yes, when the State was offended by an order which we thought was illegal, our view was not to disrespect it. Our view was not to disobey it. Our view was to litigate it, and then if it came out in our direction, we were winners, and if it came out against us, we abided by the law.

John Ashcroft

You raised the case that I argued in the Supreme Court. There were a handful of different provisions there, some the Supreme Court said no, these don't pass muster, some the Supreme Court said these pass muster.

John Ashcroft

Now, I submit to you that to participate in the development of the law is not to violate your oath as long as you participate in the development of the law in accordance with the opportunities expressed.

John Ashcroft

Now, I defended the State of Missouri. I defended the State of Missouri aggressively. That is the job of the Attorney General.

John Ashcroft

Jay Nixon has done the same. All the Attorneys General -- Jack Danforth did it before I did it. Jay Nixon did it after I did it. That is the job of an Attorney General, and my job as Attorney General would be for me to defend the law of the United States and I will do it, all the laws. That is my job.

John Ashcroft

Now, one of the laws which might pass is a law that might deal with partial-birth abortion. Now, I don't know whether you would ask me if the Congress comes up with a law that relates to that issue to abandon my duty to defend that law. A majority of the members on the panel of this Committee voted in favor of such a law in the last Congress, and I think if Janet Reno -- pardon me -- if Attorney General Reno had defended the law, she wouldn't have violated her oath of office. So I just -- I want to say that it is not uncommon for Attorneys General to defend the interests of their States. That is what their job is, and it is not a violation of their oath of office or the Constitution of the United States to seek to make sure that what is done at the State level is consistent with the Constitution at the State level or consistent with the Constitution at the national level, and when we swear to uphold the oath of office, I think we are swearing to do things in an orderly and lawful manner.

John Ashcroft

Jay Nixon has done that as the Attorney General of Missouri. I don't criticize him.

John Ashcroft

I'm sorry, Mr. Chairman. I have gone too long, and I apologize, and I thank all of you for allowing me to respond.

Joe Kennedy III

Just to finish it -- but I appreciate your response -- my sense, Senator, is that you were attempting to overturn the law on the Roe v. Wade. It wasn't just testing it to find out its limits. It was to overturn it. That was the thrust.

Joe Kennedy III

The reason I raise this is because earlier today you gave the assurances in response to Senator Schumer about how you would treat that case in the future, and the logical question came into my mind that if you challenged it in the past, having taken the oath of office, wasn't there a good likelihood that you would challenge it in the future after taking it. That is the --

John Ashcroft

Oh, I think that is a very good question. I am very pleased to have a chance to answer that.

John Ashcroft

When the State Legislature of Missouri passed a law that needed to be evaluated in that context, I advanced that law. It was my job. I advanced that in the courts to defend it. But my job as Attorney General of the United States will be to defend the law and Constitution of the United States as it's been articulated. And I think for me to have abandoned my responsibility as the Attorney General of the State would have been to set myself outside the system at that time just as much as it would be for me to set myself outside the system if I were to break my word and not defend the law that I would be sworn to uphold and defend if I am honored with the confirmation by the U.S. Senate.

Patrick Leahy

I would note that the Chair, at the request of the nominee, extended more than double the time so that he could have an uninterrupted answer, and he had it. I would hope that we might follow the example, always of a hopeful nature that we could follow the example of Senator Hatch and myself, who stayed within seconds of our time.

Patrick Leahy

I turn to the distinguished soon-to-be President pro tem.

J. Thurmond

Senator Ashcroft, I want to congratulate you on the tremendous support and endorsements you have received. For example, I notice that you were endorsed by the National Association of Korean Americans. Also, the largest grass-roots Jewish group in America has urged the Committee in a letter to Senator Hatch to confirm you. They wrote, and I quote, "We know John Ashcroft to be a man of honesty and integrity, not only in regard to his personal and professional dealings but also in a broader, more profound sense." What stronger endorsement can anyone get than that? I congratulate you. I think you are honest, I think you are capable, and I think you are courageous. And I expect to vote for you.

J. Thurmond

J. Thurmond

Thank you, sir. I am grateful to you.

John Ashcroft

Joe Kennedy III

[Presiding.] Senator Kohl?

Herb Kohl

Senator Ashcroft, the recent revelations about Firestone tires and tread separation have generated tremendous concern throughout the country about tire safety. I am sure you share in the distress about the defective tires and the efficiency of the recall. I wonder whether you share my concern that evidence of the defective tires was kept in for far too long through legal settlements that gagged the disclosure of the information vital to the safety of the driving public. In product-defective cases like Firestone, corporate defendants often ask plaintiffs to accept secrecy agreements as part of a settlement. Sometimes these orders serve a legitimate purpose, for example, keeping a trade secret confidential. But all too often these agreements simply hide vital information that could potentially affect the lives of many, many thousands of people and certainly general public health and safety.

Herb Kohl

Herb Kohl

The Sunshine in Litigation Act would compel judges to consider the impact on public health and safety before accepting secrecy orders. Since the Firestone cases, this legislation is necessary I believe now more than ever.

Herb Kohl

At a hearing before this Committee in 1995, I asked respected attorney Ted Olson about this bill. You probably know him as the man who argued the election case for President-elect Bush before the Supreme Court. Mr. Olson agreed with me, saying, and I quote, "It is the public's business that is taking place before the courts, and there ought to be an awfully good reason before the courts are used as an instrument and the public cannot know what is going on."

Herb Kohl

I ask you, Do you agree with Mr. Olson on this issue? And as the Nation's top litigator, would you sign off on a Justice Department settlement that concealed information vital to the health and safety of the American public?

John Ashcroft

I believe, if I understand Mr. Olson correctly, that I do agree with him. I think unnecessarily hiding or otherwise concealing from the public those kinds of things would be against the interests of the people. I think I would have to consider each case on its individual merits, but I think there's great danger in not providing public information.

John Ashcroft

Herb Kohl

The recalls are one thing, but, you know, we are talking about judges to allow companies to sign settlements with people who sue that give them money in return for gagging the settlement and as a result defective products continue to be sold. Doesn't that strike you as being a wrong thing to do in the United States? And wouldn't you agree that judges should at least consider, which is all this court --

John Ashcroft

Just consider the impact on the public health and safety before they agree to a gag order.

Herb Kohl

Herb Kohl

Thank you. One more, child safety laws. You have consistently voted against gun safety proposals, including the moderate child safety lock amendment that Senator Hatch and I wrote. You argued that we need to enforce the current gun laws rather than pass new ones. The Senate and the House passed the child safety lock provision overwhelmingly, and polls consistently show that about 80 percent of the American public agrees that we should sell all handguns along with a child safety lock.

Herb Kohl

Now, everyone agrees that we need to enforce the current laws as a part of a comprehensive gun safety strategy. Unfortunately, no matter how many prosecutors we have, 10,000 children a year will still be involved in accidental shootings unless we make it virtually impossible or very difficult for children to fire the guns.

Herb Kohl

And so I ask you, Would you be willing to reconsider? Would you be willing to consider whether or not it is legitimate along with a handgun to see to it that a child safety lock is sold? To put it to you another way, what would you have against it?

John Ashcroft

Thank you, Senator Kohl. Let me try and answer this very quickly. I do support the Second Amendment and the right to bear arms for citizens. But as I indicated earlier, there are things that are within the range of that that can be done, and I don't think, for instance, child safety locks offend the Constitution of the United States. The President-elect has expressed himself in favor of a program for providing child safety locks, and I'd be very happy to advance that interest of his and to work with you in terms of improving our performance there.

Herb Kohl

But that falls a little bit short, and this is my last question because my time has run out. It falls somewhat short to see to it that every handgun that is sold has a child safety lock. Whether it is free or whether they pay for it is another question. But I am suggesting that it makes common sense, and I'm asking you your opinion. It is common sense, along with the person who buys a handgun, should also have a child safety lock. There is no requirement that they have to use it. That is not written into this law. If they don't want to use it, they don't use it. But shouldn't we, in the interest of our children, see to it that when a handgun is sold, a child safety lock accompanies that handgun?

John Ashcroft

It's my understanding that the President- elect of the United States would support legislation requiring child safety locks and then supporting the provision of child safety locks with that requirement, and I would be happy to participate with the President in achieving that objective.

Herb Kohl

I thank you.

John Ashcroft

The senior Senator from Pennsylvania.

Patrick Leahy

Arlen Specter

Picking up on what Senator Kohl has said, the business about disclosing those agreements on product liability cases is very much, in my view, in the public interest. As I recollect it, we had a vote on an amendment offered by Senator Kohl which passed, and then the bill was taken down. And I would urge you to take a look at Senator Kohl's recommendation.

Arlen Specter

John Ashcroft

I'd be happy to do so.

Arlen Specter

When you take a look at Firestone and Ford and the kind of conduct that they engaged in, there was a reckless disregard for the safety of people who died. More than 100 people died. And legislation has now been enacted which provides for criminal penalties for failure to report those defects which will come squarely under the administration of a vigorous U.S. Attorney General which is something you ought to take a hard look at, if confirmed.

Arlen Specter

Let me move back to the question of independent counsel, which I only had a very brief time on, time yielded by Senator Smith, and I am not sure it can be handled even within a 5- minute time interval. But I raise the issue of having review of what the Attorney General does. Now, whether it is by statute, like the independent counsel statute, or whether it is by regulation, as the special prosecutor has been denominated by Department of Justice regulation, there is, it seems to me, an urgent need for at least Congressional oversight when the Attorney General makes a ruling which is so much at variance with the facts and what others have recommended.

Arlen Specter

On the issue of independent counsel, Charles LaBella recommended it, Bob Conrad recommended it, Bob Litt recommended, FBI Director Louis Freeh recommended it. We came down in hearings, and there were clear issues of law. For example, on a critical question as to whether hard or soft money was being raised, there was a memorandum in the file which referred to hard money as evidence. And the Attorney General testified that she would not consider it because the witness didn't remember. But that missed the legal distinction between prior recollection recorded, which is solid evidence, as opposed to present recollection refreshed. I see Senator Ashcroft nodding in the affirmative.

Arlen Specter

Now, there simply has to be some remedy, and there is a lot of litigation which says that a taxpayer can't come into court and seek redress, but where you have the Judiciary Committee -- and the Judiciary Committee of both Houses has been singled out as a party with standing under the old statute where requests could be made that the Attorney General had to respond to, not for appeals but had to respond to. And in order to give the minority standing, it said if there was a majority of the minority on either Committee, and the same applied to the majority, a majority of the majority. Not every Senator in either party had to agree to give standing.

Arlen Specter

And it seems to me that you just don't have the rule of law if on something as critical as a conflict of interest -- and there is no division of view as to whether you need some remedy, somebody outside the Department, if a ranking official, without getting involved in defining who that should be, and you have the special prosecutor by regulation.

Arlen Specter

Now, it is true, as you said, there are sensitive matters between the executive and judicial branches, and then you said, well, executive and legislative branches. Conflicts all around. And there are constitutional issues. But I would urge you to take a look at it, and I know that you have a deep regard for Congressional oversight.

Arlen Specter

Now, you may have a little different view as Attorney General than as a Senator about the kind of oversight. But I would like your response as to whether -- and I will ask you a leading question. Don't you think that the Attorney General of the United States on matters of that importance ought to have a judgment reviewable by someone and initiated by an entity with standing like the Judiciary Committee and reviewable in court? What about it, Senator Ashcroft?

John Ashcroft

Well, I, first of all, greatly respect your understanding of this issue. I don't know of anyone who has devoted more time and energy to it or thought to it. And you've done it from the perspective of a prosecutor, which I think is the basic role you would assign to the Justice Department in this setting.

Arlen Specter

And a Senator.

John Ashcroft

And a Senator. So you've understood both sides in ways that I haven't. I would be very pleased to confer with you and to work toward greater accountability in those settings.

John Ashcroft

I would also say to you that I would hope that I would be able to work with this Committee. I enjoyed this Committee greatly when I had the privilege of working with it as a member. And as the first Attorney General, if I am confirmed, to serve from this Committee in a long time in that office, I would hope that we would work together in order to resolve these differences in a context that would also protect the kind of flow of information that has to exist in the prosecutorial operation.

John Ashcroft

I offer myself fully to confer with you about that and to find a way to resolve these issues.

Arlen Specter

The Senator from Wisconsin, Senator Feingold.

Patrick Leahy

Russell Feingold

Senator Ashcroft, I believe Senator Leahy touched on this a few minutes ago, but I know that you have strongly held views on gays and homosexuality. You and I have had discussions about this, and in a 1998 appearance on CBS' "Face the Nation," you said, "I believe the Bible calls it a sin, and that's what defines sin for me."

Russell Feingold

Russell Feingold

Now, following on Senator Leahy's question, one of the great successes of the civil rights struggle of the 1960's was the enactment of Federal law prohibiting discrimination in employment on the basis of race, national origin, religion, or gender, and in 1996, Attorney General Reno implemented a policy at the Justice Department that prohibits discrimination in employment on the basis of the employee's sexual orientation, as well as race, gender, religion, and disability.

Russell Feingold

If confirmed as Attorney General, would you continue and enforce this policy of non-discrimination based on sexual orientation?

John Ashcroft

As Attorney General, I will not make sexual orientation a matter to be considered in hiring or firing in that matter.

Russell Feingold

So you will continue that policy?

John Ashcroft

Yes, I will. I, as State Auditor of Missouri, did not, as Attorney General of Missouri did not. I did not as Governor of Missouri, nor did I as a member of the Senate. I would continue the policy, executive order or not.

Russell Feingold

Thank you, Senator. Will you permit DOJ Pride, a voluntary organization of gay, lesbian, and bisexual DOJ employees, to continue to use Justice Department facilities on the same basis as other voluntary employee groups or other minority Justice Department employees?

John Ashcroft

It would be my intention not to discriminate against any group that appropriately was constituted in the Department of Justice.

Russell Feingold

Thank you. Attorney General Reno clarified that sexual orientation should not be a factor for FBI security clearances. As Attorney General, would you continue and enforce this policy?

John Ashcroft

I have not had a chance to review the basis for the FBI standard, and I'm not familiar with it. I would evaluate it based upon conferring with the officials in the Bureau.

Russell Feingold

I respect that and hope the conclusion will be consistent with your earlier answers.

Russell Feingold

Let me switch to a topic that has been already covered in part, the so-called Southern Partisan article. I want to return to the question that Senator Biden asked about the interview you gave. I understand that you told Senator Biden that when you gave that interview, you didn't know much about it, that it was a telephone interview, and you give lots of interviews. And I certainly understand that as somebody who has given a lot of interviews. And Senator Brownback indicated that as well.

Russell Feingold

The fact that you did an interview with a magazine doesn't mean that you subscribe to its views, but if you didn't know much about the publication, how could you praise it in such glowing terms in the interview? How could you say, "Your magazine always helps set the record straight"?

John Ashcroft

Well, I was told that they were involved in a group that opposed revisionism. I had recently finished reading a book published by a fellow named Thomas West from the Claremont Institute about the founders of our country and the revisionist history. The individuals who set up the interview said these folks are interested in history. It was presented to me as a history journal, and on that basis I made the remark.

Russell Feingold

Thank you. Let me switch to one other area. Yesterday, a number of people mentioned an Attorney General opinion that said there was no basis in Missouri law to allow the distribution of religious literature in the public schools, and at one point you said something that struck me, and I want to make sure I understood it. I believe you said that the Missouri Constitution was more clear with regard to the principle of separation of church and state than the Federal Constitution. Do you have any doubt that the First Amendment of the Constitution -- excuse me, of the Bill of Rights of our Constitution requires a separation between church and state?

John Ashcroft

No, I don't. But I would just say that for things that had been approved by the United States Supreme Court, like transportation to secular -- religious schools and all, have been approved under the Federal Constitution. That was more explicitly defined out of the potential in the Missouri Constitution so that the interpretation of the Missouri Constitution had been for a more durable barrier in this setting. And I think I expressed that because there are a number of things which have been ruled acceptable under the law of the United States of America that are not acceptable under the laws and Constitution expressed in --

Russell Feingold

But you don't consider the First Amendment vague on the point of the separation of church and --

John Ashcroft

No, I don't, and I think the courts have construed it. And my point was that as the courts have construed it, the courts have said things are OK in the Federal setting that aren't OK in the Missouri setting. So I had to go beyond the Federal law to go and read the law that I was charged to read in the setting of the State Constitution.

Russell Feingold

I thank you for that clarification. I think my time is up. Thank you, Mr. Chairman.

Patrick Leahy

The Senator from Arizona.

Jon Kyl

Thank you, Mr. Chairman. I think I will just be very brief and make this comment. It is difficult for us in this setting, I think, to really be able to evaluate things which we can't possibly anticipate. Some of my colleagues on the panel here have concerns that Senator Ashcroft as Attorney General would try to change the law. Senator Kennedy referred to this a moment ago. And certainly based upon his firm advocacy in the past, it is a reasonable sentiment to hold.

Jon Kyl

Senator Ashcroft, on the other hand, is in the unfortunate position almost of having to prove a negative, to prove that, no, he won't do anything improper. Well, it is hard to prove that you are not going to do something improper in the future. He has basically said give me a chance and I will show you.

Jon Kyl

It is also true that we are talking to some extent about shades of gray here. It is not the case that there is something called "the law" and that is all there is to it and everybody knows exactly what it is and it is always clear to the Attorney General exactly what to do as a result of that.

Jon Kyl

The Attorney General will have to make decisions, and as Senator Ashcroft pointed out, when he was Attorney General there were some questions at the periphery of the settled law. Well, we know what Roe v. Wade is, but can you require parental consent, for example? That is a new question, so it has to be litigated. And I think that those of us on the side of supporting Senator Ashcroft have to acknowledge that there will be those kinds of situations, and that there will be areas for judgment. And I also think that some of our friends who have some skepticism about what Senator Ashcroft should do should also then consider the fact that a lot of these policy issues will be informed by the position of the new President of the United States. I think we can all make our judgments about how aggressive he will be to move in certain areas, but I urge my colleagues to at least consider that element of the policy choices that the Attorney General will make. And I also urge them to consider the integrity of the nominee and his strong commitment to keep his word.

Jon Kyl

So I guess what I would caution here is that both people who are skeptical of Senator Ashcroft and those who are his adherents here probably both overstate the case a little bit to make the political point. In many respects, we can't know, and that then raises the question: What's the default position?

Jon Kyl

And, Senator Ashcroft, to get back to something you said at the very close of your opening statement, you can't prove to us that you will satisfy every one of us. Some of my colleagues are pretty pleasantly surprised, I must confess, that you have been so willing to agree to enforce laws that you haven't always agreed with. And so the real question is: At the end of the day, what will persuade them that they can trust you?

Jon Kyl

I would like to have you comment on that very briefly. In my own case, what you said at the conclusion of your opening remarks is very persuasive, and that is that you take your oath of office very, very seriously. And you have also noted a couple times you are going to be very available to us in the future. And since you know us and we know you, I suspect you know how well you would be treated if you went outside the bounds of some of the commitments that you have made.

Jon Kyl

So I just wonder if you would like to comment on that to try to add to the assurances that you have already given to members of this Committee.

John Ashcroft

Well, I thank the Senator. I really believe my record is a record of operating to enforce the law as Attorney --

J. Thurmond

Speak in your loud speaker.

John Ashcroft

Thank you, Senator. I believe my record demonstrates my willingness to enforce the law, and that's why I was so eager to clarify my position when Senator Kennedy asked me about the school cases. And there is a difference, though, that I would cite, and I think it's important, that the State Attorney General is an elected official who makes final decisions on policy on his own. When the Governor of the State calls the State Attorney General on policy issues, the State Attorney General says, you know, you ran for the wrong office if you want to run this office on policy.

John Ashcroft

In the Federal system, the Attorney General is -- the structure of the systems designs to make the Attorney General part of the administration, not an administrative or an executive office, part of the executive, and there's a delicate balance there. And I think the responsibility to respond to the executive is one that is important and it relates to policy, not to law enforcement in the same way.

Jon Kyl

The senior Senator from New York.

Patrick Leahy

Chuck Schumer

Thank you, Mr. Chairman. And thank you for your cooperation, Senator Ashcroft. It has been a long day.

Chuck Schumer

First, I would ask you two quick questions, and please try to answer these yes or no. They are not complicated or intended as traps in any way.

Chuck Schumer

As you know, there is an ongoing Civil Rights Department investigation of Voting Rights Act violations that might have occurred in Florida. As Attorney General, would you allow that investigation to continue?

John Ashcroft

I will investigate any alleged voting rights violations that have credible evidence, and I'm not familiar with the evidence in the case, but that would be the standard I would apply and have no reason not to go forward and would not go forward for any reason other than a conclusion that there wasn't credible evidence to pursue the case.

Chuck Schumer

OK. The next one, just also quickly, and just a little elaboration. You had mentioned that on the matter of sexual orientation you never discriminated in your various offices in terms of hiring. But you were one of a minority of Senators who refused to sign a statement that you wouldn't discriminate when you were a Senator. Can you explain the seeming disparity?

John Ashcroft

I've never discriminated. I don't have any recollection about this statement, and, frankly, I'd have to answer I don't know or invent an answer now, and I don't have any recollection of that.

Chuck Schumer

OK. But we could take it, given your previous statements, that you would fully enforce the Hate Crimes Act.

John Ashcroft

I would fully enforce the Hate Crimes Act were it to be passed, and --

Chuck Schumer

A few acts -- the Statistics Act has been passed already.

John Ashcroft

Yes, OK.

Chuck Schumer

I was the author of it.

John Ashcroft

All right. Yes, sir.

Chuck Schumer

You would. OK. And what would be your attitude toward the Hate Crimes Protection Act next year? Would you urge that we pass it, not pass it?

John Ashcroft

From what I know about the Act now, I believe it to be constitutional. I would defend it --

Chuck Schumer

How about --

John Ashcroft

-- If it were to be enacted by the Congress and passed by the President. I would have to confer with the President, obviously, before I endorsed any specific legislation.

Chuck Schumer

But you wouldn't urge him to veto it on any constitutional or legal or moral basis?

John Ashcroft

Based on what I know now, I would not.

Chuck Schumer

OK. Now, I'd like to just pursue a little further your follow-up initially to my questions earlier this morning, and Senator Kennedy had mentioned them, and then you began to clarify. I think what you were saying -- and I am just trying to clarify here -- is that on the issue of choice, when you were in the Missouri State Government, you thought it was your right, and certainly not unconstitutional, to challenge and change the law. But as Attorney General, United States Attorney General, that because the Supreme Court has ruled, and recently in the Stenberg case said this is settled law, something you just -- that was your words.

John Ashcroft

That's regarding the denial of cert of that specific challenge --

Chuck Schumer

Correct. That you would not -- and I just want to get this clear -- that you would not urge the Solicitor General in any way to join suits to try and change those rulings. Is that correct? That is what you said to me earlier this morning, and --

John Ashcroft

I stand by my answer from this morning.

Chuck Schumer

Thank you. Let me ask you this, then: Let us say people in the Senate or the House try to introduce a statute that was identical or very similar, nearly identical, for all material purposes identical, to the statute where the Supreme Court denied cert in the Nebraska case. Would you urge the President -- a little step further but the same basic reasoning. Would you urge the President to veto it because it is unconstitutional based on the Supreme Court, the very same ruling in the Nebraska case, in the Stenberg case?

John Ashcroft

Let me understand what you're saying. If the Congress were to seek to do in exact language what the State of Nebraska did --

Chuck Schumer

Correct.

John Ashcroft

-- What would my advice be to the President?

Chuck Schumer

Correct. It passed both Houses. He has to sign it or veto it.

John Ashcroft

The President, when he announced his appointment of me, asked me not to share advice with the public that I would be asked by him. I would tell you this: that I would give him my best judgment as to what the law. It would not be a result-oriented judgment. I have promised him that I would tell him the law, and I don't think it takes -- when you have an on-point case, I think that's pretty clear what that advice would be.

Chuck Schumer

And I would just like you to say it because it is not contradictory to what happened before. This is settled law, in your judgment, settled law enough so that the Solicitor General would not -- you would not urge him to overturn it. Why wouldn't the same -- I'm not asking your advice to the President. I understand the difference there and respect it. But we are talking about the role that you have talked about quite well as implementer of the law and definer of constitutionality. This is not a moral issue. This is not an ideological issue. This is a constitutional issue where it is extremely important for the Attorney General to enforce the law, something you have repeated regularly today and yesterday. Why wouldn't you just be able to tell us here -- this is not a question of your private conversations about statutory or ideological views with the President. Why couldn't you say that the law is unconstitutional and the President should veto it?

John Ashcroft

I would give the President my best estimate of the law. I think it's very clear that the Supreme Court has ruled on that particular law. The only change that could be made is if the Federal Government and its Congress had authority to do something that the State of Nebraska didn't do. I don't have -- haven't considered that fully. But --

Chuck Schumer

But the Supreme Court's ruling was a Federal ruling, sir.

John Ashcroft

Yes, it was, but --

Chuck Schumer

It was not based on State of Nebraska law. It was based on the right of -- it was based on the Federal right of privacy in the Constitution -- as the Supreme Court has defined the Constitution and as you recently told us is settled law. This is an important issue, and some of us don't want to be unsettled that you have said this and are now sort of taking it back a little bit.

John Ashcroft

I'm not taking it back, sir. I will give my best judgment as to what the law is to the President whenever he asks me for legal advice, and that will be very clear. And the Nebraska statute was ruled unconstitutional.

Chuck Schumer

Correct.

John Ashcroft

And I will tell the President that.

Chuck Schumer

And that the -- excuse me, just -- and that the same law that passed by the House and Senate is unconstitutional as well? The same exact law using the same Federal ruling, what would prevent you from saying that if you -- and I believe you have -- if you truly believed what you told us before? There is no difference.

John Ashcroft

Well, nothing prevents me from saying it, and I believe the Nebraska law has been clearly ruled unconstitutional.

Chuck Schumer

Correct.

John Ashcroft

And if you're asking for my personal view, I don't know of any reason why the Federal Congress would be allowed to do what the State governments were forbidden to do.

Chuck Schumer

So you would tell the President it's unconstitutional?

John Ashcroft

I would tell him that I don't know of any reason the Federal Government has the authority to do what the State constitution -- State group couldn't do that was ruled unconstitutional at the State level. And it would -- I guess I would have to say I would expect the same to be the result from the Federal level.

Chuck Schumer

Thank you for your indulgence of a little extra time, Mr. Chairman.

Patrick Leahy

And I will certainly offer the Senator from Ohio the same amount of extra time. The Senator from Ohio?

Michael DeWine

Mr. Chairman, thank you very much. Senator Ashcroft, thank you.

Michael DeWine

In examining your record as Missouri Attorney General, it is clear that you had as part of your agenda the whole issue of consumer rights. You attacked pyramid schemes. You sued oil companies, charging them with restraint of trade. You had one case where you sued a company that was selling fraudulent franchises. They were claiming that they were helping the disabled, and many, many other cases.

Michael DeWine

I wonder if, as you define the job of Attorney General and you look at your role you believe that is also part of your mission, part of your agenda to protect consumers.

John Ashcroft

I thank the Senator from Ohio. As Attorney General, I had a portfolio of consumer protection, and I ended up suing everybody from the oil companies, when they were either contaminating -- selling contaminated gasoline or when they were price-fixing gasoline, a number of cases like that. I sued the pyramid schemes because they were just a means of defraud individuals, and I had the opportunity to sue people for fraudulent franchises and distributorships and all kinds of things like that.

John Ashcroft

I don't know if the portfolio of the Justice Department is quite as extensive when it comes to consumer protection. I enjoyed that part of my responsibility in my job. And I also got involved in some things nationally that I thought were important for consumers. The one thing that I have dealt with years and years later now here in the Congress, while I was a Member of the Senate, was copyright laws regarding television and other programs. I sued as an amicus in the Sony Corporation v. Universal City Studios, which allowed people to tape-record television programs if they couldn't be home at the time the program was on so that they could later see it.

John Ashcroft

But I think that I'll do what I can to try and help consumers in settings, but I believe the Federal Trade Commission and other agencies of the Government have the lion's share of consumer protection, and I'd be happy to learn if I could be involved in that arena, but my opportunity I doubt would be quite as extensive as it was when I was Attorney General.

Michael DeWine

Senator, thank you very much. Mr. Chairman, thank you.

Joe Kennedy III

[Presiding.] Senator Durbin?

Dick Durbin

Senator Ashcroft, to follow up on Senator Schumer's question, for several years now, we have been debating the so- called partial-birth abortion ban on the floor of the U.S. Senate. Many of us have argued that if it included a health exception for the woman involved, we could support it. And Mr. Santorum from Pennsylvania has adamantly stuck to his position that it should not include a health protection.

Dick Durbin

Dick Durbin

Now, the Stenberg v. Carhart decision, which has been the subject of this debate, really says that Casey gives us no choice. Casey, a case which you referred to in your opening statement, made it clear that you had to include a health exception, and I want to make it clear in my mind that the Santorum bill, which has been debated and voted on in the House and the Senate now, based on what you have said today and what we understand Stenberg v. Carhart to say, clearly would be unconstitutional and that it does not meet the test of Stenberg v. Carhart of providing for protection for the health of the woman.

John Ashcroft

If legislation regarding partial-birth abortion is passed by the U.S. Senate, I will ask Department lawyers to assemble the best assessment of that legislation and evaluate its pluses and minuses and its likelihood of constitutionality. And I would advise the President of that.

John Ashcroft

If it is arguably constitutional, I would defend it because I think that's the responsibility of an Attorney General. I think it is important to be able to advise the President confidentially because you might find yourself in the setting where you advise the President that something is unconstitutional, but he decides to sign it, and because it is arguably constitutional, but maybe not going to be constitutional, you go in to defend it.

John Ashcroft

Now, if you have advised the President publicly that this is probably unconstitutional but it could be constitutional, and then he signs it and you have to go defend it, you have cut the legs out from under your ability to effectively sustain the enactment or argue for its sustenance in the court. So --

Michael DeWine

But, Senator, this element, this element of protecting the health of the woman is clearly the decision made in Stenberg v. Carhart based on Casey, a case which you yesterday said in your opening statement was settled law of the land. It is not a question of constitutionality if it settled law of the land in your mind. And how then could you have any question, as you sit there, and say, well, maybe Stenberg really didn't say the health of the woman? It was based on Casey, and it related to protecting the health of the woman, and Santorum, which we have considered in the Senate for years now, does not include that protection. I can't think of a clearer illustration of your earlier statement where you said the administration is not going to set out to overturn Roe v. Wade and that you were committed to the settled law of Roe v. Wade and Casey.

John Ashcroft

I am and I would advise the administration in regard to any proposed -- or legislation it was considering that I considered Casey and Roe v. Wade and Stenberg to be settled law, and in evaluating those -- any proposed enactment or any enactment which came for signature to the President, I would advise them with that understanding.

John Ashcroft

It's possible -- the number of permutations in legislation, as we all know, is infinite, and I would give my best advice to the President. I would give it to him privately, because if he signs something, it would be my responsibility to defend it and seek to defend it and harmonize it with those cases. I just think that's one of the places where you have a situation that tells you why you should advise confidentially to the President, because some advice about constitutionality doesn't -- if it were 51-49 constitutional, this may not be the case. You said I really think this is unconstitutional but you were wrong about that and you could later defend it, you'd have a responsibility to do so. So I would like to take that option.

Michael DeWine

If I might ask you an unrelated question, if you were confirmed as Attorney General of the United States of America, would you appear at Bob Jones University?

John Ashcroft

My appearances at a variety of places depend on what I think there is to be achieved and accomplished. When I get an invitation, I have to ask myself why is this invitation here, what can I support by responding to the invitation, what will be the consequence of my response.

John Ashcroft

I will tell you that I understand, having been a participant in these hearings and the prelude to these hearings, that the Attorney General is a person who needs to exercise care in -- greater care, I think, than a Senator does. I reject the racial -- any racial intolerance or religious intolerance that has been associated with or is associated with that institution or other institutions. And I would exercise care not to send the wrong message, but -- and I think that's the basis upon which I'd make decisions about going from one place or to another.

Michael DeWine

But even in light of President-elect George Bush's comments to the late Cardinal O'Connor and the obvious embarrassment he felt when he learned of the anti-Catholic, and some racial comments, that were made by the leaders of that university, you would not rule out as Attorney General of the United States appearing at that same school?

John Ashcroft

Well, let me just say this: I'll speak at places where I believe I can unite people and move them in the right direction. My church allows women as ministers. The Catholic Church doesn't. My grandmother happened to have been an ordained minister. I'll go to a Catholic Church and speak. It's discrimination against a woman from one perspective, but I'm not in the business of trying to find things in one faith setting that make it impossible for me to be there. I want to be there to try and promote unity.

John Ashcroft

There are other different faiths that have different aspects of their belief. I mean, some churches will forbid me to take Communion. My church invites people to take Communion if they feel like they want to. But I don't discriminate against going and doing things that I -- if they invite me to come and do something that's helpful and therapeutic and will unite people and not divide them, I want to reserve the ability to do that. And I'm grateful for the friends who tolerate me by inviting me. Frankly, I want to focus my energy and effort to unite rather than divide and to find things of mutual respect rather than to find things that I can pick at or otherwise challenge.

John Ashcroft

But I want to make it very clear that I reject racial and religious intolerance, and I reject any current or prior policies of those. I do not endorse them by having made an appearance at any -- in any faith or any congregation. Those who prefer not to allow women in certain roles, I don't endorse that when I go there, nor do I endorse any racial or other intolerance at other places when I make appearances.

Patrick Leahy

So are you equating Bob Jones with the Catholic Church, Senator?

John Ashcroft

Obviously not. And I thank you for clarifying that. Throughout this hearing you have helped me clarify things that were important.

Patrick Leahy

The Senator from Alabama.

Jeff Sessions

Well, Mr. Chairman, I think that would have been better left unsaid. I don't think that was a fair summation of his remarks. We have got to treat people here with fairness, in context. If you take anything people say out of context, you can make people look bad.

Patrick Leahy

As the Senator addressed that to me, I will respond. I gave Senator Ashcroft the chance so he would not leave that implication. I think I understood what he meant. I thought that my question to Senator Ashcroft -- and in his response he saw it the same way -- was done as helpful to him.

Jeff Sessions

Well, if that was the spirit, I will apologize for my error.

Jeff Sessions

I do notice that Senator Ashcroft said some time ago these positions of Bob Jones University I reject categorically, I reject the anti-Catholic position of Bob Jones University categorically. Bob Jones University is a narrow university with many views I do not agree with, not consistent with my faith, but, frankly, some good things have been happening. The ban on interracial dating as a result of this hoopla and the visits of political attention has changed. They also have softened apparently their statements about the Catholic Church saying they do not hate them but love them.

Jeff Sessions

And so I think maybe these things have been healthy. Maybe it has been healthy to have that, and to say you will never go somewhere, I am not sure is wise.

Jeff Sessions

On the partial-birth abortion question, I think Senator Durbin opposed the vote we had, but 64 Senators, as I recall, a bipartisan group, voted in favor of the partial-birth abortion amendment that was in the Senate, and two-thirds of the American people favor that. Eighty-six percent, according to the April 2000 Gallup poll, oppose abortions in the third trimester, and according to a conversation I had with Senator Boxer, there may be some ways we can develop some bipartisan progress on that, but I think we need to realize that the American people are not comfortable with unlimited abortion in this country. I, for one, do not condemn a person like Senator Ashcroft who is troubled by the ease and blase-ness we have about this most serious matter.

Jeff Sessions

Senator Ashcroft, you talked about the role of Attorney General. I served as Alabama's Attorney General. Is there anybody else but the Attorney General that represents the State of Missouri but the Attorney General?

John Ashcroft

In the courts, the Attorney General represents the interests of the States -- State.

Jeff Sessions

You speak for the legal interests of the State.

John Ashcroft

Yeah. Now, there are some agencies that have their own counsel, but most of the time, say the Board of Healing Arts, if there is a dispute between whether doctors can prescribe medicine or -- and some other group, you know, the State frequently -- or the position of the Attorney General resolves those by Attorney General's opinions, or if someone sues, the position of the board or the State is defended by the Attorney General.

Jeff Sessions

Well, I guess I have had personal experience with the kind of proposed consent decrees that are being talked about and you have been criticized about here today.

Jeff Sessions

It is only the Attorney General that represents the State, and it is only the Attorney General that can bind the State in a court of law on a consent decree. Isn't that basically correct, or have I overstated that in some fashion?

John Ashcroft

No, I think in general that correctly states the law.

Jeff Sessions

So the point --

John Ashcroft

You know, it has been a while since I was Attorney General.

Jeff Sessions

Well, I had this.

John Ashcroft

That was in 1984, I ceased that role.

Jeff Sessions

I have been through this problem. I have been through the problem where plaintiffs sue school board, mental health system, prison system, and the people who get sued, they want more money for what they want in their programs. They want more money. So they go in and say, "Well, let's settle, and we will have the State pay for this, and get a Federal judge to order us. If we can just get a Federal judge to say that the mental patient is not being treated well enough, the prisoners are not being treated well enough, the school system is not being treated well enough, then we can go tell the legislators who won't give us more money that the Federal court ordered it." This is a systemic problem in America that Attorneys General have to deal with, and it is difficult to go in and say no.

Jeff Sessions

I have had to do it. My predecessor agreed to a settlement I could not believe that altered the way Supreme Court justices were to be elected, and when I was elected, I switched sides and reversed it in the Eleventh Circuit Court of Appeals. Had I not been elected, the Alabama constitution would have been altered because the Attorney General, in my view, didn't defend the State. He did what was perhaps what the people wanted, but really not that.

Jeff Sessions

Is my time out? I guess it is, Mr. Chairman. I apologize.

Jeff Sessions

So I think there are times when the Attorney General represents the State, he has an obligation and duty regardless of what the parties to a litigation may say to ensure that it is fair for all the people of the State. I think you did that. That is why Jay Nixon who I knew and served with, a Democrat, Attorney General after you, did the same thing, and I also would note for the record that Senator Kennedy and Tom Harkin had fund-raisers for Jay Nixon while he was taking this very position. Apparently, it is the problem of whether you got a "D" or an "R" after you name whether that is worthy of criticism.

Jeff Sessions

My time is up.

Patrick Leahy

Is the Senator from Alabama finished?

Jeff Sessions

The distinguished senior Senator from California.

Patrick Leahy

Dianne Feinstein

Senator Ashcroft, let me just qualify Senator Durbin's question and ask it another way. You are now confirmed as Attorney General. In 6 months, you receive an invitation from Bob Jones University. You now know about Bob Jones University. Do you accept that invitation?

Dianne Feinstein

John Ashcroft

Well, it depends on what the position of the university is, what the reason for the invitation is. It depends on what I might be able to achieve.

John Ashcroft

They have abandoned the policy on interracial dating, which was offensive. Their website, which I wasn't aware of when I went there, if it still had the anti-Catholic aspects, I would be loathe to go back.

John Ashcroft

I would hope that they would approach things differently, and I don't want to rule out that I would ever accept any invitation there because I think I would hope that they would make what I consider to be progress. They did when they abandoned the interracial dating ban which they had, and I would hope they would make other progress as well.

Dianne Feinstein

Do you have reason to believe that they are no longer anti-Catholic?

John Ashcroft

No. I don't know whether they are abandoning or changing or modifying their position.

John Ashcroft

I would state this. I think it is clear, and these hearings have been valuable in this respect, that I am sensitive at a higher level now than I was before that if the Attorney General in particular needs to be careful about what he or she does and I would be sensitive to accepting invitations, so as to not allow a presumption to be made that I was endorsing things that would divide people instead of unite them.

Dianne Feinstein

Along those lines, let me ask you another question. You were on the Foreign Relations Committee, and Jim Hormel, a person whom I happened to know very well -- he comes from my city and I have known him for many, many years -- was up for Ambassador to Luxembourg. You voted against him at the time saying because he engaged in a gay lifestyle.

Dianne Feinstein

My question to you is would someone be denied employment by you or not be selected by you for a top position in the Justice Department if they happen to employ a gay lifestyle.

John Ashcroft

No. They would not be denied. I have never used sexual orientation as a matter of qualification or disqualification in my offices. I have had individuals whose situation became apparent to me, sometimes tragically, that worked for me, and I have not made that a criterion for employment or unemployment in my office and would not do so.

John Ashcroft

I will hire as if that is not an issue, and it is not, and whether or not the executive order would be in effect or not, that is my practice and has been in all the offices in which I have conducted myself since I have got into politics, and that began in January 1973.

Dianne Feinstein

If I might ask you a question about the Hyde amendment, now law. The amendment requires States to fund abortions for women who rely on Medicaid and who choose that option if the pregnancy is a result of rape or incest or if it threatens the woman's life. The amendment attempts to ensure that poor women with the consequences of rape or incest have the service and are not disadvantaged because of their economic status.

Dianne Feinstein

Dianne Feinstein

It is my understanding that at least two States are not in compliance with the Hyde amendment. What action as Attorney General would you take?

John Ashcroft

First of all, I voted for the Hyde amendment on several occasions. I don't really know what enforcement actions there are, whether they are taken through the Attorney General's office or whether they are taken through some other agency of the Government, but I would seek to enforce the law.

John Ashcroft

I am just not sure what the enforcement action is that is appropriate in that setting. I don't know whether HHS has a way of dealing with that or not.

Dianne Feinstein

I wanted for a moment to talk about another past position, and this has to do with felons obtaining weapons. The National Rifle Association has consistently supported enabling felons to restore their privilege to purchase firearms both through taxpayer funding, for a "relief from disability" program, and lawsuits.

Dianne Feinstein

Many in law enforcement have serious concerns about enabling convicted felons to possess guns. In 1999, you voted for an amendment to the juvenile justice bill that would have required the FBI to create a data base to identify felons who have been granted relief. Rather than establishing a national data base, my question is why don't we just prevent felons from getting guns in the first place.

Dianne Feinstein

As Attorney General, would you support felons obtaining this so-called "relief from disability" so they could buy guns despite their felony convictions?

John Ashcroft

The restoration of gun rights is not a Justice Department function under the law now. It is a Treasury Department function, and I know Senator Durbin, I think, was instrumental in -- maybe I am wrong about that. I thought you made sure that wasn't funded. Pardon me. But -- pardon me for -- it is getting late, and I'm -- things are --

John Ashcroft

Dianne Feinstein

No, I understand. My question is a very simple one.

John Ashcroft

Yes, I understand that, and let me address that.

John Ashcroft

This is a matter of policy about which I would confer with members of the Justice Department and also with the President of the United States in arriving at a decision.

Dianne Feinstein

My point is I think all of law enforcement believes that felons should not possess weapons, and my question to you, as Attorney General, do you agree with that, would you be supportive.

John Ashcroft

Keeping guns out of the hands of felons is a top priority of mine, and it would be as Attorney General.

Dianne Feinstein

So the answer is yes, you would be supportive?

John Ashcroft

Yes. I think that's -- yes, it is.

Dianne Feinstein

Let me ask another gun question, if I may.

Patrick Leahy

The Senator's time --

Dianne Feinstein

Oh, it is? I apologize. Thank you very much, Mr. Chairman.

Patrick Leahy

The Senator from Kansas.

Sam Brownback

I think every question has been asked three or four or maybe five different ways so far. So the only thing I would like to add at this point is I would like to submit to the record a letter received by the Judiciary Committee from Charles Evers. He is the brother of slain civil rights leader Medgar Evers, and this letter is in favor of the nominee, of John Ashcroft for Attorney General, and strongly supports that. So I want to submit that into the record.

Sam Brownback

Patrick Leahy

Without objection.

Sam Brownback

I think that pretty well wraps up the topics.

Sam Brownback

Thank you, Mr. Chairman. I would like to yield some time to my colleague, Senator Kyl.

Jon Kyl

No. No, I don't.

Jon Kyl

Mr. Chairman, might I just ask unanimous consent to insert in the record at this point an op-ed piece in the Arizona Republic by the columnist, Robert Robb, on this subject.

Patrick Leahy

In fact, following the normal practice, the practice under both Senator Hatch and myself, the record will be available for Senators as long as the hearing is going on to submit statements of that nature. We have a number of them, and several Senators do.

Patrick Leahy

Patrick Leahy

The Senator from Kansas, is that it?

Sam Brownback

That is sufficient for me.

Patrick Leahy

I would also submit questions, as we have in the past, of other Senators not on the Committee to have been able to submit questions on behalf of the two Senators from Florida, Senator Bob Graham and Senator Bill Nelson, regarding the investigations into allegations of discrimination, November 7th, 2000, election in Florida, including the use of voting devices that resulted in significantly higher numbers of minority voters, ballots being thrown out. This refers to the Civil Rights Division and the Commission of Civil Rights investigation. I would submit that, and we will give copies to your staff and the questions for the record.

Dianne Feinstein

Mr. Chairman, may I submit some amendments -- or some questions to be answered in writing?

Patrick Leahy

Yes. The Senator from California may, of course.

Patrick Leahy

If nobody else has any submissions, the Senator from Washington --

Joe Kennedy III

Mr. Chairman, I was wondering, Senator Biden had yielded the time. If everybody is ready, I don't want to -- others have questions, but there is one. I am wondering if I could use his time. I will only take 1 minute.

Patrick Leahy

Do you want to use it now, or do you want to --

Maria Cantwell

I yield to the Senator. I yield.

Joe Kennedy III

I'll do whatever. Oh, I'm sorry. Excuse me. I apologize.

Patrick Leahy

Why don't we have the Senator from Washington State --

Joe Kennedy III

I apologize.

Patrick Leahy

-- And then the Senator from Massachusetts.

Patrick Leahy

Then, just so that people understand, once the Senator from Washington State has finished, the Senator from Massachusetts is using the time of the Senator from Delaware. I discussed this with the Senator from Utah. We will recess for an hour to have dinner and then return.

Patrick Leahy

Senator Cantwell?

Maria Cantwell

Senator Ashcroft, thank you for your patients and fortitude.

Maria Cantwell

Orrin G. Hatch

Excuse me. Could I ask one question? Are we coming back to re-question Senator Ashcroft, or will that be it for him?

Patrick Leahy

Well, I have got a couple of questions. I mean, I would be happy --

Orrin G. Hatch

Well, why don't we finish the questions.

Patrick Leahy

Well, I will tell you what we will do, we will stay until 6:30. We will stay until 6:30 and break at that time, and then at what seems like a logical time, come back to 7:30. I give you my commitment, to the Senator from Utah, to go late at night if need be to help get this done. We can start the clock on the Senator from Washington State.

Maria Cantwell

Again, Senator Ashcroft, thank you for your patience and your fortitude. Yes, the hour is getting late, so I appreciate your attention to these issues.

Maria Cantwell

Maria Cantwell

If we could go back to the roadless area, the question that I brought up earlier, and I can go back to the record of your statement. Since I don't have that in front of me, I am not clear whether you said you were unfamiliar with it or unfamiliar with where it was in the Administrative Procedures Act and the rulemaking authority.

John Ashcroft

Maybe I need to be refreshed, and I am very sorry, but I don't understand what you are talking about.

Maria Cantwell

OK. The roadless area policy --

John Ashcroft

Oh, roadless area. OK.

Maria Cantwell

Roadless area policy that has now been implemented by the Administrative Procedures Act, and just completed that process, and I asked you earlier about that and I was unclear exactly -- you said you weren't familiar. I wasn't clear whether you were -- and I can go back to the record where you say you were unclear about the policy or --

John Ashcroft

It is my responsibility to defend both the laws and the rules and regulations, and it is my understanding that it would be my responsibility to defend these regulations upon it if and when they are attacked.

Maria Cantwell

But I am not familiar with them.

John Ashcroft

Maria Cantwell

Well, you have sent -- from -- according to Mining Voice, you have sent a letter basically raising concern about the roadless area policy and the Clinton administration's, as you called it -- it appears the administration has launched an orchestrated campaign to preclude mining on vast acreages of public lands and multiple- use land. I understand you don't always remember everything you have --

John Ashcroft

Well, I think that this maybe makes reference to what would be the situation in the Mark Twain National Forest in Missouri, the old lead and zinc mines, but I shouldn't speculate. Frankly, it is getting late in the day --

Maria Cantwell

-- And I don't want to do that, Senator.

John Ashcroft

Maria Cantwell

Here is why I think it is such an important issue, because you may have, again, legislative -- which we said numerous times today, what you have done as a Senator is different as you might do as Attorney General, but, yet, it seems as if you raised concerns about or opposition to that policy. Now it has actually been, as far as the Administrative Procedures Act, completed. It is now law.

Maria Cantwell

It may be that the President-elect opposes that policy, but you as Attorney General -- and there are court cases already now being filed and challenged to that administrative -- to the roadless area policy that has now been implemented by this Administrative Procedures Act.

Maria Cantwell

So, even if the President-elect is opposed to that policy, will you as the enforcement agency underneath your office enforce and uphold that law and defend those cases?

John Ashcroft

I will, regardless of whether or not I supported something as a Senator, defend the rule, and if it is a rule with the force and effect of law, I will defend those cases.

Maria Cantwell

Even if the President might be seeking a new administrative overturn of that?

John Ashcroft

I think if the President wants to change the law, he has to follow the law in order to do so.

Maria Cantwell

And I will support and enforce the law. I think that's -- that's a responsibility, and I think that is what I have promised to do.

John Ashcroft

John Ashcroft

I can't be result-oriented. I have to be law-oriented, and I think I would disserve the President and the country were I to do otherwise.

Maria Cantwell

Thank you very much. Thank you.

Patrick Leahy

Senator Kennedy who has reserved the time of Senator Biden.

Patrick Leahy

Joe Kennedy III

I will tell my good friend, Senator Sessions, that if Jay Nixon was nominated, I would be asking him the same questions.

Joe Kennedy III

Senator, this is just on the tobacco. I would like to ask you just two quick questions, one on the issue of guns. There are three cases now. I will ask you the questions, and perhaps you can respond to them in writing, unless you want to give an answer. There are three occasions now where the gun law, that is, the Brady bill, is under a review, case pending on the Fifth Circuit of Appeals where the defendant is challenging conviction of weapons under the Brady bill. There is a case pending in the D.C. Circuit on the ban of assault weapons with the high-capacity ammunitions, and there is a case pending in the Sixth Circuit of Appeal which the gun lobby is, again, challenging the assaults ban.

Joe Kennedy III

If you can give us your reaction to those. I did not tell you before that I was going to raise those. There is no reason that you ought to know about them, but if you could, please.

John Ashcroft

I believe these are all enactments of the Congress signed by the President, laws of the United States that are under attack.

Joe Kennedy III

Good, OK.

John Ashcroft

I would expect to defend those vigorously.

Joe Kennedy III

Good. Thank you.

Joe Kennedy III

Finally, just in your May speech -- this is on tobacco. In your May speech, you ridiculed the administration's effort to reduce the youth smoking, criticizing the ethic of victimology that treats tobacco as a drug and drugs as tobacco. In that statement, you appear to reject the overwhelming weight of scientific opinion that nicotine in tobacco is a highly addictive drug and reject the massive evidence that children have been the victims of a deliberate effort by the tobacco companies to addict them to smoking at a young age.

Joe Kennedy III

Now, the administration has a legal action on that particular question moving forward. It has gotten to the point where a Federal judge has already examined the Government, in this case, the RICO claim and rule, that it can go forward as a matter of law. We are all aware of the mountain of evidence showing that the tobacco industry did engage in unlawful acts. This is basically a recommendation of DOJ professionals.

Joe Kennedy III

Can you give us any assurance about that case if you intend at this time to withdraw it? Do you intend to carry it forward? Can you give us any indication of what your disposition on that will be?

John Ashcroft

Well, let me clarify that I am no friend of the tobacco industry. I don't smoke. My family doesn't smoke. I regret the fact that smoking is very dangerous to individuals.

John Ashcroft

I will -- I have no predisposition to dismiss that suit. I would evaluate that suit, conferring with members of the Department of Justice. I note -- and hoping to learn from it -- that the Attorney General, 2 years ago, said that the Federal Government had no independent cause of action against tobacco companies in a statement which I think she later reversed, and I don't want to make a statement ignorant of the kinds of facts and considerations that ought to inform my judgment when I get to the Justice Department if I have the benefit of confirmation.

John Ashcroft

I don't mean to be presumptive in my statements, but I will consider it, and is this the case where there were three causes of action and two of them have been dismissed, but the RICO cause remains? That is about all I think I know in terms of that.

Joe Kennedy III

That is correct, and they have said that the defendants cannot possibly claim their alleged conspiracy was isolated. The complaint described that. Well, they have upheld this. There are three different criteria for RICO, and they have gone through.

John Ashcroft

Well, suffice it to say --

Joe Kennedy III

And I won't take the time of the Committee to go through the justifications, but they have met that particular requirement. The case is moving ahead.

Joe Kennedy III

You have taken a very strong position on the questions of substance abuse. I doubt if there are many medical professionals who don't believe that tobacco is a gateway drug, and I think that there is such an extraordinary concern, from parents as well as professionals, in terms of trying to make a difference with youth smoking and the targeting of companies toward youth smoking. I certainly hope that would get some action. I appreciate your attention to it now, and we look forward to talking about it some more.

Joe Kennedy III

Thank you. Thank you, Mr. Chairman.

Orrin G. Hatch

I think our side is about wrapped up, at least I hope so, and I hope yours is, too.

Patrick Leahy

Let me do this. I do have a couple of questions I will ask him, and then we will break unless somebody on your side wants to do one. The Senator from Pennsylvania wishes to ask questions.

Patrick Leahy

I will ask a couple. We will go to the Senator from Pennsylvania so that he can ask some. We will then break. I am concerned about the amount of time the former Senator from Missouri has had to spend here, but with all due respect, I am even more concerned about Mrs. Ashcroft who has had to look at all of us, but then we have had to look at you. So we will do my questions. We will then turn to the Senator from Pennsylvania. We will break, and during that time, I would ask the Senator from Utah if he would check on his side which, if any, Senators will still have questions. I will do the same on our side.

Patrick Leahy

Bob Jones University is not up for confirmation here, but just as you have spoken of a heightened awareness about some of these issues because of the confirmation hearing, you will not be surprised to know that many nominees in both Democratic and Republican administrations have said that they became more aware of some of the issues following their confirmation hearing.

Patrick Leahy

But just so you understand the concern, when President- elect Bush spoke at Bob Jones University about a year ago, he did express regret for the appearance in recognition of their anti-Catholic and racially divisive views. When your Republican colleagues received an honorary degree from Bob Jones University, Representative Asa Hutchinson later called the school's policies indefensible.

Patrick Leahy

In March, Bob Jones made clear on national TV that he views the Pope as the antichrist and both Catholicism and Mormons as cults.

Patrick Leahy

My suggestion -- and you can do whatever you want -- I made my position very clear yesterday how I feel about you -- on any questions of racial or religious bias. I stated at that time that neither I nor anybody on this Committee would make that complaint about you.

Patrick Leahy

But let me say this, if you are being somewhat sensitized to this, frankly, if I were you, with all the information that has come out -- some of which you may have known because there was a dispute with one of your own judicial nominees over the question about whether Bob Jones should have a tax exemption or not -- with all that, if I can make a recommendation to you, I would put that honorary degree in an envelope and send it back to them, and say this is your strongest statement of what you feel about their policies.

Patrick Leahy

But let me ask you this. I gave your staff a speech that you made in 1997 called "On Judicial Despotism." You characterized the Supreme Court's landmark abortion decision in Roe v. Wade and Casey as illegitimate. You called the justices who struck down in Arkansas a Congressional term limit law, you called them "five ruffians in robes", and said that, quote, "They stole the right of self determination from the people." And you posed a rhetorical question, quote, "Have people's lives and fortunes been relinquished to renegade judges, a robed contemptuous intellectual elite fulfilling Patrick Henry's prophecy that have turned the courts into nurseries of vice and the bane of liberty?" And you also said, "We should enlist the American people in an effort to reign in an out-of- control court."

Patrick Leahy

Now, I have disagreed with Supreme Court decisions, and I have always emphatically stated that while I may disagree, we have to follow them. I disagreed with Gore v. Bush, but I went over with the then-Chairman of the Senate Judiciary Committee, my Republican counterpart, went to the arguments, came back out and said, "We have to obey the law, whether we agree with it or not."

Patrick Leahy

Now, the "five ruffians in robes" to whom you refer are members of the Rehnquist Supreme Court. That's a conservative Court, oftentimes activist, decidedly conservative. I have heard Justice Anthony Kennedy and Ruth Bader Ginsburg called a number of things, but "ruffians" is a little bit stronger than I have ever heard before.

Patrick Leahy

How do you feel about that speech today?

John Ashcroft

Well, first I'd say that I have never said that people shouldn't obey their outcomes, and inasmuch as I may be spending substantial time presenting things to the Court, I think I'll be respectful to the Court.

Patrick Leahy

And would it be safe to say -- I do not want to put words in your mouth -- how do you feel about your term "ruffians in robes? " Probably one best headed for the trash can?

John Ashcroft

I don't think it will appear in any briefs.

Patrick Leahy

Well, probably not on your side. You may find it quoted on the other side about you, but I think I understand your answer. The Senator from Pennsylvania?

Arlen Specter

Senator Ashcroft, we are trying to wrap up. It is late. I want to touch on a couple of areas and urge you to give consideration to them.

Arlen Specter

Arlen Specter

On campaign finance there is a memorandum of understanding between the Department of Justice and the Federal Election Commission which I had questioned the Attorney General about extensively, because there are criminal penalties, and under our law, they are to be enforced by the Department of Justice, and I would urge you to take a look at that memorandum of understanding with a view to reasserting Department of Justice authority to enforce the statutes of the United States which have penal provisions.

Arlen Specter

On the issue of espionage, I would urge you to take a very close look at the procedures which are used under the Foreign Intelligence Surveillance Act, to make sure that major matters do not fall between the cracks on the investigations which are of the utmost critical nature. Some of those matters have gone directly to the Attorney General, and have been delegated without supervision, and major investigations have been thwarted.

Arlen Specter

With respect to international terrorism, there have been tremendous advances made by the Federal Bureau of Investigation in overseas activities, leading to some really remarkable prosecutions on extraterritorial jurisdiction, something we did not have before 1984 and 1986 statutes were enacted, and I would urge you to take a close look there and to pursue that.

Arlen Specter

On the antitrust laws, I approach that very briefly, and I would urge you to take a look at areas where there can be an aggressive pursuit, and with some specificity, I would your attention to OPEC. Just in this morning's news, they are going to curtail production in order to raise prices. And there is a very solid legal theory for proceeding against OPEC under our antitrust laws, Sherman and Clayton. And an impediment had been the Foreign Sovereign Immunities Act, which prohibits law enforcement from going after acts of state, but there is an exception if there is a commercial practice and there is an acceptable international standard available, which there is now, with an emerging international consensus, that price fixing is unlawful. And what OPEC is doing, pure and simple, is an old-fashioned violation of the cartels, in restraint of trade, keep up the prices. And Americans are being victimized there, and they really do not have sovereign immunity because of a new brand of international standard. The advances in international law are remarkable in many, many fields with the War Crimes Tribunal and a consensus on international law.

Arlen Specter

And I mention those to you just in passing for your attention, because it has been a long day, and it would be my hope that we would move on to other witnesses following today's termination.

Arlen Specter

Let me ask you as a final question, Senator Ashcroft. There have been a lot of concerns expressed -- and you have heard them all, you heard them all and then some -- about many, many touchy subjects, and President-elect Bush has articulated a really desirable view of being a healer. And we talk about bipartisanship and about bringing America together, and that is going to be a very, very important item. And I believe that the assurances you have given on many items are really important, and if confirmed, people are going to be looking at you to see that you are going to carry them out. And I would urge you to establish a dialog with the groups which have been identified as being opposed to you, whatever the line may be, the desegregation cases, the abortion clinics, the pro-choice issue, all of these items, and show them the man that I know from working with you for 6 years in the Senate, with a sense of humor, and balance, and realism, and integrity, and very strong-held views, but a very sharp delineation between your personal philosophy and law enforcement, which we have tried to articulate and pin down, and I think you have made a lot of very important commitments.

Arlen Specter

So I would ask you in a final question, what do you see that you can do in an active way to carry forward the healing that President-elect Bush talks about, and give assurances on an ongoing basis to so many people who have raised these tough questions?

John Ashcroft

While I see the time is up, let me just briefly say that --

Patrick Leahy

I think the Senator from Pennsylvania has asked a very good question, so certainly take the time to answer.

Arlen Specter

Senator Ashcroft, on time, I do not think there is any time limit on you. There are time limits on us, not on you. We have seen a lot of practices around here, on 10 minutes, a long speech, and a question at the end of the 10 minutes. It is a common practice for senators to take all the time, but you have the time you need.

John Ashcroft

Let me just say thank you for the question. I'm delighted to respond to the question.

John Ashcroft

I am very eager to be the Attorney General for the people of the United States of America. I'm eager to talk to them. I'm eager for the Justice Department to have an elevated understanding by the public, and standing with the public. I personally feel that the Justice Department has, of necessity, been sort of inward focused in a lot of ways recently because of circumstances that have surrounded the executive branch of government, but I think we can invite people to participate in fashioning and shaping and understanding a Justice Department that will be seen as a Justice Department for all the people.

John Ashcroft

I have toyed with a variety of ideas, not presuming my confirmation, but it's hard if someone invites you to think about being the next Attorney General, not to think about what you could do. And I've thought about a variety of ways to be involved with the people, with being in various cities and asking people to come and tell me what they expect from the Justice Department, being on college campuses and asking people, young people to chat about the justice objectives for the United States of America. Some of you I've shared these dreams with, and I've even suggested that it would be appropriate for, in these sort of things outside the strict legal responsibility we have to participate together in, because I think the future of America is very bright, and I would hope that we could find a way to fashion that brightness as a team effort.

John Ashcroft

So that I look forward to reaching out to people. I don't know that I will be as interest-group oriented. I want to reach out to people, not just interest groups. But I will not reject the opportunity for individuals who are associated with groups to be involved as well, because I think it's time for the Justice Department to be seen as an instrument of American justice for all the people, not necessarily just a defense of the administration or defense of the executive branch of government. And it shouldn't be something that's merely Washington based. I think it should be something that's understood across America.

John Ashcroft

I would plan to visit -- I hope to visit, early in my opportunity, if I am confirmed -- personally every jurisdiction, to meet with the US Attorneys there. I want them to be inspired about what the Justice Department does. I want them to be proud of it. I want them to have a sense that there is integrity about what we do, that we'll operate based on principle, the kind of principle that -- more eloquently than I could state -- Jack Danforth, your former colleague, spoke to you about. It was the kind of thing he established in the Attorney General's office in Missouri, and frankly, I followed assiduously that example when I was there.

John Ashcroft

People who -- a culture that doesn't have a reference to the rule of law doesn't have freedom, and I believe freedom is the circumstance in which people flourish and individuals grow. My philosophy of government is government exists so that people grow, people reach the maximum of their potential. That's what government is about, and I'd like for the Justice Department to be a part of that. So I intend to engage in a conversation with the American people as aggressively as I can, to help them understand the Justice Department, and to help them inform me about what they expect from the Justice Department. And then I would take those conversations to the President of the United States with a view toward being responsive to the people of America to give them the kind of Justice Department in which they can have confidence, and on which they could rely for integrity and justice.

John Ashcroft

And it's an exciting, very exciting thing to me. If I am honored with the confirmation of the U.S. Senate, I will make it my high-intensity effort, and I believe the outcome will be very, very satisfactory and pleasing, and I thank you for the question.

Patrick Leahy

Thank you. The Committee will stand recessed until 7:30. During the break, Senator Hatch will check with members on his side, I with members on my side, to see if there are further questions of the nominee, or whether there are simply questions that can be submitted. You have had a long day here, and I would hope that you and your staff, but especially Mrs. Ashcroft, could take some time to relax.

Patrick Leahy

Let me tell you where we are. During the break, as I had suggested we would do, Senator Hatch and I conferred. We have checked with the senators on both sides of the aisle. We do not have -- assuming nothing unforeseen in later questions of other witnesses -- we do not have other oral questions of the nominee.

Patrick Leahy

What we will do, because there is still some of his paperwork that has not yet come to the Committee, and senators have to have a chance to see that, but also, once they have had a chance to check the transcript of yesterday and today's hearing, and once also that Senator Ashcroft has had a chance to see if he wants to make any changes in any of his answers, we have the right, both sides do, to submit further written questions to the nominee. That, of course, is a practice we have always followed with any nominee, and those answers would have to come back prior to any vote. But I do not intend to recall Senator Ashcroft tonight under these circumstances. We will hear from a Congressional panel this evening, and have questions.

Patrick Leahy

Well, I am really happy to have this basically over for Senator Ashcroft. I think he more than answered the questions, and I think that he did a very good job.

Orrin G. Hatch

Orrin G. Hatch

Now, it is my understanding, Mr. Chairman, that we will proceed with whoever is here tonight congressionally.

Patrick Leahy

But I have to take the blame, because I thought we would be going late tonight on Senator Ashcroft, which we have done, and I basically indicated to our witnesses J.C. Watts and Congressman Hulshof, that I did not think they would need to be here, so they are not.

Orrin G. Hatch

Orrin G. Hatch

Now, I have also requested, and I respectfully request again, that since Congressman Hulshof is the prosecutor in the Johnson case, that the prior practice of the Committee, at least during my tenure, where you have a witness in the case of Ronnie White, we allow Congressman Hulshof, who was the prosecutor, who wants to testify with regard to the law in that area, that we allowed them to appear together, which would be the fair thing to do. I do not think there will be any bombastedness or anything. I just think it would be good to allow the two witnesses together and especially since Congressman Hulshof has requested in writing, respectfully, the privilege of doing so, if we could do that, I would feel very good about this. However, if we are just going to have one witness, and then throw Hulshof, who is relevant to that witness, then Ronnie White is relevant to Hulshof.

Arlen Specter

I would like to second what Senator Hatch has to say. It is frequently done, really customary, where there are two witnesses who have testimony on the same subject matter, to have them appear together. I anticipate that there may well be a difference of contention as to what the facts are, and in my tenure here, which is not as extensive as Senator Thurmond's, but a while, and where I have presided at hearings, I make it a practice to bring the people in who have the same things to say, and there are frequently clashes where -- for example, we had key officials of the Department of Justice and key officials of the FBI, who flatly disagreed with each other. They did not quite call each other liars, but there was a kind of a conflict where you could follow up on questions on factual matters that you do not have if you have Justice White, and then you have Congressman Hulshof, unless you are going to recall Justice White, and we are not going to do that. So, it seems to me preeminent and fair, and also, there is no doubt that what Justice White has to say is very germane. He is a major witness. And as a matter of fairness, there ought to be an opportunity for the other side to be heard simultaneously, so I would press to have what Senator Hatch has requested be the rule.

Patrick Leahy

Yes?

Arlen Specter

Orrin G. Hatch

If I could just add one last thing. I think, Mr. Chairman, you have conducted very fair hearings here. This is no reflection on you whatsoever, except that we believe that the only fair way to do this is to allow the two relevant issues, on those relevant issues to be able to be on the same panel. If we do it that way, it seems to me, we get rid of the problem. People can ask their questions both ways if they would like to, or not ask any questions, and it is just the fair thing to do. If we do not do it, I would think it would be pretty unfair.

Dick Durbin

Patrick Leahy

Mr. Chairman, I would object to that, and I want to state my reasons for it. The difference is this: Ronnie White was rejected in his effort to be appointed to Federal District Court, without an opportunity to ever explain his point of view. He did not receive the same fair hearing that Senator Ashcroft has received during the last 2 days, or that virtually every other judicial nominee receives, and I would say this. I think he is entitled to present his opinion and his decision in the context of how he saw it and how it was interpreted. You can bring in your witnesses against him, other witnesses against him, whatever you want to do, but I think he is entitled, since he is the first Federal District Court Judge rejected on the floor of the U.S. Senate in 40 years, he is entitled to have his day before this Committee to state his position, and we should make that a record. You can put whatever rebuttal witnesses you want on at that point, Congressman Hulshof or others, but give this man his opportunity to sit before this Committee and defend himself after what he has been through.

Dick Durbin

Arlen Specter

Mr. Chairman, may I respond? And I have great respect for Justice White, but the issue is not what happened to Justice White. The issue is what -- his bearing on Senator Ashcroft, and we need to have a procedure which would enable this Committee to find the facts fully.

Arlen Specter

Now, I think they ought to be together, but perhaps some middle ground would be that if Justice White testifies, and then Congressman Hulshof testifies, and Justice White remains, so that we are able to follow up with Justice White on what Congressman Hulshof has said. That is the only way we can have any conflict, which I anticipate will be present, and to let us find the facts. And the issue is not what happened to Justice White. The issue is what is going to happen to Senator Ashcroft.

Patrick Leahy

If I might, just so people understand, Congressman Hulshof was invited to appear with a panel tonight. He will have an opportunity to appear. I have not met Congressman Hulshof, but he was kind enough to send me a detailed letter explaining to me how to do my job, and what the Senate should do in carrying out its responsibility. That is very helpful to the Senate, and I appreciate his giving us the benefit of his experience and wisdom from the other body, as I always am. Perhaps I am a slow learner and I have not understood fully what I should do to follow his directions.

Patrick Leahy

But in any event, what I will do as Chairman, I will hear from a congressional panel, those members who are here today. Congressman Hulshof and other members who are unable to be here tonight will also have an opportunity to be heard. I mean, I will try certainly to get them onto a panel during the time when I am Chairman. If I cannot, I am sure that Senator Hatch, during the time he is Chairman, will be able to get them on to a panel. The irony is, in a question of fairness, Congressman Hulshof will get the last word because he will be testifying after Justice White testifies. Now, it may well turn out, and a suggestion was made of having Justice White testify again, maybe for a different reason than what the Senator from Pennsylvania suggested. It may be because he feels he should talk. But the point is, we are not talking about the confirmation of Justice White. We are talking about the confirmation process of Attorney General Nominee John Ashcroft.

Patrick Leahy

Now, he would be able to testify by himself, although we have broken into his testimony several times at the request of Senator Hatch, on behalf of himself and the Bush transition team, to have a long series of senators come in and speak on his behalf. We did that again today. It has been somewhat unprecedented. We have had a Senator from Texas, a Senator from Maine, a former Senator from Missouri. I, in turn though, out of courtesy to the nominee, did not bring, while he was here, did not bring another former Senator from Missouri who is opposed to his nomination I did not bring other Members of Congress who are opposed to his nomination to come in during that time. He was allowed to interrupt any time Senator Hatch told me he wanted to, to bring in people to speak on his behalf, sit with him at the witness table and do it.

Patrick Leahy

But just so that we are not here all night long talking about what is going to happen, we will go ahead. I will include in the record the kind letter from Congressman Hulshof, explaining how I should do my job I appreciate suggestion of course -- I am always open to suggestions, and trust me, I get a lot of them, 17,000 e-mails in 1 day this week. And we will go ahead with our --

Arlen Specter

Mr. Chairman, did you say you are putting the letter in the record?

Patrick Leahy

OK. Because I think that is important, because this letter does not do what you said. This letter does not tell you how to do your job, and I think it is a disservice to Congressman Hulshof for you to make that statement. It simply does not do that. I want to read the letter.

Arlen Specter

Patrick Leahy

Well, the letter was given to the press. I heard about it after he gave it to the press.

Arlen Specter

I think I have the floor, Mr. Chairman, and I would like to read the letter, because Congressman Hulshof is entitled to not be characterized as doing something as taking on the business of the Senate. This is what he says: "Dear Senator Leahy, As a matter of personal privilege, I respectfully request that I be allowed to testify on the same witness panel as Judge Ronnie White during your confirmation hearings on the nomination of Senator John Ashcroft to be United States Attorney General. My appearance before the Judiciary Committee does not come because I am a sitting member of the U.S. House. My appearance is solely because I was co- counsel in the prosecution of a murder case which became a critical issue during the consideration of Judge White's nomination to the Federal bench. I believe I can provide significant and unique testimony relevant to the State of Missouri v. James Johnson and Judge White's expected testimony. Your current invitation to have me testify as part of a panel consisting of interested Members of Congress will not provide the Judiciary Committee with a full, fair and accurate account of the James Johnson case. I respectfully request that my appearance occur on the same panel as Judge White. Any other invitation would reflect a politicization of the hearing process and would be unfair to the Senate, the incoming administration, and the American people. Sincerely, Kenny Hulshof."

Arlen Specter

Now, I believe that is very respectful, but if we are to have a process where these witnesses are not going to testify together and it comes down to the raw power of the Chairman, then my suggestion would be to the incoming Chairman, that we reconvene the hearing on the afternoon of January 20th or Monday, January the 22nd, and call the two witnesses.

Patrick Leahy

Well, the incoming Chairman, of course, would have that opportunity.

Orrin G. Hatch

I do not intend to do that, but let me just bring this to closure because we have to go to our next --

Jon Kyl

Mr. Chairman, I still have not been recognized on this point, and I would like to be as a member of the Committee.

Orrin G. Hatch

Let me just say this, and then of course I will step aside. Both Justice White and Congressman Hulshof are fact witnesses to the Ashcroft nomination. They are not appearing in their official capacities. All I am asking is for basic fairness. Now, the Chairman can do whatever the Chairman wants to do. I am not trying to embarrass him. I just feel deeply about this. And I think I have the reputation of the last 6 years that I have been Chairman of this Committee before now of allowing the Minority to present opposition witnesses. I do not think that is an untoward request. And what it looks like is that if you just have Justice White and no opposition witnesses, a fact witness who is relevant to this on the same panel, then basically it just looks like you are setting aside one person and giving that person a single panel without any opposition, and then throwing a Congressman in the mix with a bunch of very important, but other witnesses who are not at all fact witnesses with regard to the issue in question. So I just respectfully ask the Chairman to think it over, and I hope that you will do this because I think it is the right thing to do.

Patrick Leahy

What this tends to ignore though, is the fact that because Congressman Hulshof is not here this evening, as we had expected him and several other members --

Orrin G. Hatch

Well, neither is Justice White.

Patrick Leahy

And several other members of that panel are not here this evening. He actually has an advantage that everybody seems to be overlooking. He gets to appear after Justice White. He gets the last word. I do not know what could be more fair.

Orrin G. Hatch

Will he be on his own panel?

Patrick Leahy

I am going to recognize -- well, if you want to have him next Monday, you can, or you can have him Saturday afternoon as --

Orrin G. Hatch

Frankly, I am asking for fairness. I am not asking for anything else. If you do not want to do it, you are Chairman, and we will live with it. However, I am telling you that we will put him on afterwards, but make him solely at the table then just like Justice White.

Patrick Leahy

Orrin, you can do whatever you want. Now the Senator from -- and we do not need histrionics -- but the Senator from Pennsylvania suggested Saturday afternoon. I, like a loyal American, U.S. Senator, will be at George Bush's inauguration Saturday afternoon, but you do what you want.

Patrick Leahy

Let me -- and I am going to recognize the Senator from Arizona first, but let me call to the table, so we can at least try to get started -- you are after all the one who asked me to move along here -- Congresswoman Maxine Waters and Congresswoman Sheila Jackson Lee. Would you please come up and take places.

Patrick Leahy

And I yield to the Senator from Arizona.

Jon Kyl

Thank you. Mr. Chairman, for 6 years I have been a Subcommittee Chairman of this Committee, and I have held numerous hearings in which we created panels. And I have been told in every instance, where we had a witness on one side, that of course, we had to afford the Minority the right to have a witness on the same panel to deal with the same issue.

Jon Kyl

I inquired as to whether that was a rule, and I was informed, no, it is not a rule, but it is a longstanding tradition and practice of the Committee, because of course, it represents the rule of fairness that where you have a particular issue involved, it is fair for the Minority to have a witness on the same panel as the Majority.

Jon Kyl

I would urge the Chairman to think this over as well, because the Chairman will be setting, I think, a very -- if I can have the Chairman's attention on this, because I am actually speaking to you, Mr. Chairman, I do not want to be unkind here -- I would urge the Chairman to think this over carefully because the Chairman would be setting a precedent here. We are going to be in the Majority, at least for a while, starting next Monday. And we would then have the right, under the last action of this Chairman, under the precedent that he set, to deny the Minority the right to have members or witnesses on panels that we create. I do not think that is a very good precedent. I think we should stick with the precedent of the Committee. It is longstanding. It is traditional. It is fair, and it is pretty obvious, I think, what the effect of having just one witness on this panel would be, especially if it were not immediately followed by our witness dealing with the same subject, which as I understand it, is not the Chairman's intention.

Jon Kyl

So while up to now I would consider this process very fair, I think it would be eminently unfair to proceed as the Chairman suggests, but worse, would create a precedent that unfortunately would provide the temptation to those in charge from thereafter to simply do what they wanted, irrespective of the interest of the Minority. So I would urge the Chairman to think this over this evening.

Patrick Leahy

I appreciate that. The precedent, of course, already exists, certainly has in the 26 years I have been here, three times in the Majority, twice in the Minority, and I have seen the precedent many times.

Patrick Leahy

If Congressman Hulshof is that concerned about appearing with his colleagues from the House, we can arrange a time.

Jon Kyl

That is not what we are asking.

Patrick Leahy

We can arrange a time for him to appear by himself, so he would have the same treatment that Justice White is having, but I told all of you I would try to move these things forward. Senator Hatch and I will talk about that. Let's start with the witnesses who are here today.

Orrin G. Hatch

Let me just make one last comment. Regardless of what you decision is here today, should I become Chairman of this Committee, I am going to practice what I have always practiced, and that is, if the Minority has an offsetting witness, they are going to be able to call that witness. And I do not care what your decision is, that is what I am going to do. But I asked my colleague, and we have gotten along very well, and frankly, I think you have done a very good job in these hearings. I am hopeful that you will think this over, and I would even agree to let Justice White go first if you want, and then call Ken Hulshof, Congressman Hulshof, by himself immediately afterwards. And then if Justice White does not like what he says, you can bring him back. That would be fine with me. But I would like to have this resolved because it is only fair. If it was not fair, that is another matter, but it is so clear on its face that it is fair.

Orrin G. Hatch

Now, just to make the record clear, should I become Chairman, the Minority will have the right that I hope we will not be barred from having as the Minority here, and I will just treat it that way. So leave it at that. That is all I can --

Patrick Leahy

As the Senator from Utah knows, I have stopped this hearing several times to bring in witnesses that I had not been told we were going to have until the very last second. I have accommodated them. I put them in. I have been trying to accommodate everybody there. We could have had a whole other round at his request, and on behalf of Senator --

Orrin G. Hatch

We were prepared.

Patrick Leahy

-- Ashcroft though, we will go into our private conversation. I worked at having senators who might have wanted to ask further questions, not to do it.

Patrick Leahy

Congresswoman Waters.

Maxine Waters

Thank you very much, Mr. Chairman and members. I appreciate the opportunity to appear before you this evening. I respect the tremendous responsibility that you have in a matter such as this. It is very serious, and I know that you will do the very best job that you can. I am here because this issue, this confirmation is extremely important to me and to people that I represent.

Maxine Waters

I have listened very carefully to Senator John Ashcroft yesterday and today. It is clear to me that John Ashcroft is attempting to deny the passion and poor judgment he has displayed on certain critical issues, such as abortion, guns, civil rights and voter rights. He would have us believe that despite his extreme positions, we should trust him to be the Attorney General of the United States of America with the responsibility for enforcing the nation's laws.

Maxine Waters

I hate to say this, members, but I must share with you, I simply do not trust John Ashcroft. I believe he is simply saying whatever he believes is necessary to be confirmed. John Ashcroft has a record of opposing minorities nominated to key positions by President Bill Clinton, such as Bill Lann Lee, David Satcher, Judge Ronnie White.

Maxine Waters

And it was the unprincipled attack on Judge White that really caught my attention. Ronnie White has bipartisan support during the Judiciary Committee hearing. He was also supported by Kit Bond, the other U.S. Senator from Missouri. John Ashcroft used Ronnie White as a pawn in his reelection campaign. He manufactured an argument that Ronnie White was soft on crime. After Ronnie White's confirmation had been voted out of Committee, John Ashcroft organized fringe police groups to oppose the confirmation. John Ashcroft then recruited Kit Bond and other Republicans to vote against Judge White on the Senate floor. Ronnie White's career has been seriously damaged by an unusual party-line vote, simply because John Ashcroft misrepresented this African-American man as a poster boy for soft on crime, and portrayed Judge White as being too liberal and too dangerous to be entrusted with a lifetime tenure to the Federal bench.

Maxine Waters

All of this was a shameless, cheap political sabotage of a fine judge, who had worked his way out of poverty to obtain an education and serve his country and his state. What John Ashcroft did was not honest. He knowingly distorted Ronnie White's record and misrepresented decisions Judge White had made twisting and distorting his judicial record.

Maxine Waters

John Ashcroft's position on abortion is extreme. He rabidly opposes a woman's freedom of choice even in cases of incest and rape. In addition, information disclosed by Senator Kennedy during this hearing today, documented the actions John Ashcroft took to thwart voter registration by the people of St. Louis, particularly the black, the poor and the disadvantaged. These revelations are startling and unsettling.

Maxine Waters

I am particularly concerned about his record in Missouri because I was born in Missouri, attended both segregated schools in St. Louis, Missouri, and I witnessed poverty and exclusion of African-Americans in that city. We had a rough time growing up in St. Louis, Missouri.

Maxine Waters

I was in St. Louis 4 years ago during an election where there was disenfranchisement, and I called the Justice Department from there.

Maxine Waters

I know that people like John Ashcroft -- now I know that people like him are responsible for dashing the hopes and dreams of poor people and African-Americans because of the kinds of decisions they make in their role as public policymakers.

Maxine Waters

We have heard no reasonable explanation from John Ashcroft about his obstruction of efforts to educate and train voting registrars from St. Louis. When these disclosures are added to his attempts to block desegregation programs in Missouri, we are left with a nominee who should not and must not be confirmed.

Maxine Waters

I would be happy to answer any questions you may have.

Patrick Leahy

I should point out also Congresswoman Waters has been here a great deal, and I know that Congresswoman Jackson Lee has been present throughout these hearings. She is probably as weary as the rest of us, but the Senator from Utah and I see her often in the House Judiciary Committee. She is a respected member of that, and I am glad to have you here.

Patrick Leahy

Congresswoman, go ahead.

Patrick Leahy

Representative Jackson Lee. Thank you very much, Mr. Chairman. Might I add my appreciation for the fair and impartial way in which you have conducted these hearings, and to Mr. Hatch, the ranking member, let me thank you as well for your graciousness and those of the members, and members who are here, Senator Durbin, and, of course, the members who are here as well that were kind enough to allow us to participate this evening.

Patrick Leahy

If I might, to capture the essence of the nature of concern that many of us have with respect to the nomination of Senator Ashcroft, I think it goes to a statement made by Dr. Martin Luther King in 1962, "It may be true that law can't make a man love me, but it can keep him from lynching me."

Patrick Leahy

Certainly, many of us in the 21st century would like to think that those kinds of travesties are behind us, and if I was here to contest Senator Ashcroft's conservative views, I would be hypocritical. If I was here to contest his religious vigor, I would be likewise hypocritical, for our democracy allows us to hold a number of different and diverse beliefs, and I am proud of the fact that we live in a democratic society that gives us that privilege.

Patrick Leahy

But I do want to say to this Committee that I am a product of a segregated America. I know what it is to be bussed to a school to integrate that school. I have lived with people who in varying ways have either been hurt or harmed or felt intimidated because of the color of their skin, because someone treated them differently.

Patrick Leahy

I had maybe the privilege to understand what it is like to ride in the back of a train with a brown paper bag with food because I could not go to the car where food was served.

Patrick Leahy

This is an emotional and passionate time for many of us, and we thought that as we crossed the bridge into the 21st century, we might have a time we might not have to look upon those times in our lives when we were treated so differently and distinct and others took it lightly that we should even be concerned.

Patrick Leahy

So the reason I am here as a member of the House Judiciary Committee and representing constituents from a Southern State, the State of Texas, that itself has faced the challenge of integration over segregation, is to tell you that what bothers me and bothers my constituents is what has been shown in Senator Ashcroft's record.

Patrick Leahy

Chairman Leahy, I have spent time in this hearing room, and I have heard a man say quite differently, quite in contrast to his record. He speaks eloquently now of Roe v. Wade, but I know as a young woman growing up what it meant not to have the protection of the law, women who lost their lives in back-room alley abortions. Roe v. Wade is the law of the land, but it is a life-and-death issue.

Patrick Leahy

I also understand very well this whole question of discrimination because I am a product of watching Martin Luther King be assassinated, and I take very seriously his day of honor, January 15th, the day we honor him and as we honored him this week. Many of us still cry when we hear the words "We shall overcome."

Patrick Leahy

So I come, again, I hope not in the viewpoint of being in opposition to an American who has presented himself to this country for service, nor particularly in opposition to the President's right to choose his Cabinet. I would say to President-elect Bush that I was taught to believe a person's word, and I do believe he indicated that he would seek to find ways of healing this Nation and bringing us together.

Patrick Leahy

I do believe when you reject people because they are different, such as Ambassador Hormel, that you do raise the question of whether you can accept in your spirit, in your heart, and in the practice of law the fact that we all are created equal.

Patrick Leahy

Charlene Hunter, the Little Rock 9, and James Meredith represent the names we somewhat identify with kicking open the doors of opportunity quality in higher education. It doesn't seem right that just about 20 years ago, Attorney General Ashcroft was in the middle of denying equal opportunity to education. It seems that it was something that did not really have to be done, which is one of the reasons that I come before you.

Patrick Leahy

John Ashcroft as Attorney General, as Governor of the State of the Missouri consistently opposed efforts to desegregate schools in Missouri which for more than 150 years had legally sanctions separate and inferior education for blacks.

Patrick Leahy

Let me cite for you a report, the Woodstock Report, that talks about the fact that we have not overcome in desegregating our schools. As recently as 1993, it said while there has been significantly an amount of success in school desegregation of the last 25 years, in general, segregation has not decreased significantly since 1970. In fact, in some areas, it has gotten worse. Today, 22 or 23 of the 25 largest central city school districts in this Nation are predominantly minority. What that means to this Committee is that, yes, an Attorney General of this vintage, of this era, of this millennium will still have issues of how do we desegregation.

Patrick Leahy

Missouri had a long and marked history of systematically discriminating against African-Americans in the provision of public education, and during 45 years of slavery, the State forbid the education of blacks. After the Civil War, Missouri was the most Northern State to have a constitutional mandate requiring separate schools for blacks and whites. This constitutional provision remained in place until 1976. For much of its history, Missouri provided vastly inferior services to black students.

Patrick Leahy

After the Supreme Court's ruling in Brown v. Board of Education, the Missouri Attorney General's office, rather than ordering the dismantling of segregation, simply issued an opinion that local districts may permit white and colored children to attend the same schools and could decide for themselves whether they must integrate.

Patrick Leahy

Local schools in St. Louis and Kansas City perpetrated segregation by manipulating attendance boundaries, drawing discriminatory bussing plans and building new schools in places to keep races apart.

Patrick Leahy

The St. Louis case that is relevant in this proceeding over these next days was filed in 1972. St. Louis had adhered to an explicit system of racial segregation throughout the 1960's. It took a long time. White students were assigned to schools in their neighborhood, black students to black schools in the core of the city. Black students who resided outside the city were bussed into black schools in the city. The city had launched no effort to integrate. It simply adopted neighborhood school assignment plans that maintained racial segregation. There was a need for healing. There was a need for leadership. There was a need to get outside of the box of the representation that the Senator made that he was only representing the State.

Patrick Leahy

In 1972, Minnie Ladelle and a group of black students filed a class-action lawsuit against St. Louis Board of Education. In contrary to the Senator's testimony, the State was made a party to this action, and the Eighth Circuit ultimately found that the State and the city school board were responsible for maintaining school segregation for many years following Brown and that they acted in violation of the constitutional rights of the plaintiff school children. With this ruling, the Eighth Circuit ordered that a desegregation plan be revised.

Patrick Leahy

In 1980, the parent and student plaintiffs along with the city board amended complaints seeking a metropolitan school to segregation remedy. They did it voluntarily. They worked together. Subsequently, the District Court announced a voluntary inter-district desegregation plan and added that the 22 St. Louis County school districts as defendants -- or added them as defendants.

Patrick Leahy

Senator Ashcroft, then Attorney General, challenged the desegregation plan. He argued that there was no basis for holding the State liable and that the State had taken the necessary and appropriate steps to remove the legal underpinnings of the segregative schooling as well as affirmatively prohibiting such discrimination. The courts rejected the attempts. They characterized his acts as dilatory.

Patrick Leahy

In 1983, the city school board and the 22 suburban districts all agreed to a unique and comprehensive settlement, implementing a voluntary 5-year school desegregation plan for both the city and the county. Importantly, the plan was voluntary. It relied on voluntary transfers by students rather than so-called "forced bussing." The District Court approved the plan, and, again, Attorney General Ashcroft representing the State was the only one that did not join the settlement. He opposed all aspects of the settlement. In fact, he sought to have it overturned.

Patrick Leahy

The Eighth Circuit upheld, however, most of the provisions of the plan and emphasized that three times over the prior 3 years, it had specifically held that the State was the primary constitutional violator. Not satisfied then, Senator Ashcroft sought review in the Supreme Court and was denied his request, and even after his unsuccessful appeal, Senator Ashcroft continued to obstruct the operation of the settlement leading the District Court to conclude if it were not for the State of Missouri and its feckless appeals, perhaps none of us would be here at this time.

Patrick Leahy

And when he became Governor, Governor Ashcroft continued to obstruct the desegregation plan of the State's educational institutions well into the 1990's. Judge Stephen Linbaugh who was appointed by President Reagan actually stated that the State was ignoring the real objections of this case, a better education for city students and public schools.

Patrick Leahy

Might I say to you this. I wanted to chronicle the history of this desegregation order and plan not because this Committee is not really in its own way in securing its own information, but I personally needed to add to you a very disheartened voice.

Patrick Leahy

I don't know how long I can continue, maybe, without feeling a real deep pain. I would hope that Senator Ashcroft's representation before this Committee were absolutely true, that he could vigorously defend the laws whether it is Roe v. Wade, affirmative action, as it is in the Federal law. It is mend it, don't end it. It still exists, the Voter Rights Act of 1965 which has to be reauthorized.

Patrick Leahy

But there is another key element to being the Attorney General of the United States of America. It is the perception that vulnerable people have about what the Federal Government does, and I am reminded of what happened in Little Rock. They called President Eisenhower. They called President Kennedy. They called President Lyndon Baines Johnson, and the men that had to act at that time, since it was not women, were the Attorneys General of the United States of America, and when they acted, they acted sometimes out of the realm, not out of the rule of law, but out of the realm that what was popular or what was standard or what was the basis or maybe what was even centennial law in order to ensure that vulnerable people were protected. Every single day, more so than Health and Human Services or Commerce, more so than the Secretary of State, the Department of Justice is called upon to work for the vulnerable, Alabama, Ohio, Utah, Vermont, Illinois, California, Texas, and elsewhere.

Patrick Leahy

What disturbs me, Mr. Chairman, and why I ask this Committee to consider the record of Senator Ashcroft is the fact of whether or not he can be the protector that needs to be for the people of the United States.

Patrick Leahy

I will close by simply saying this. I know that Judge White will present himself tomorrow. I, however, believe that temperament of words is a key element as well. All of us will live by what we say, and I believe that words that will suggest a jurist has a pro-criminal bent based upon one case or cases that are a bare minimum, if you will, of the cases that he decided shows some question of an individual's temperament for protecting the vulnerable.

Patrick Leahy

I thank the Committee for their kindness and the opportunity to make my testimony this evening.

Patrick Leahy

Thank you very much to both Congresswoman Waters and Congresswoman Jackson Lee. I think your testimony is extremely important, and I can't begin to summarize either the eloquence to the depth of your statement.

Patrick Leahy

Let me touch, both of you, on three points. There is a discussion of Roe v. Wade. I remember the days of the back- alley abortionists. I prosecuted one of the worst people I ever knew. We first found out about what he was doing when I was called to the emergency room of our local hospital. A young woman in her teens, a college student in the area of her school nearly died from a botched abortion. She lived, sterile as a result.

Patrick Leahy

This particular person who I then prosecuted as doing this would be found that he had arranged this back-room program. He would bring young pregnant women to Montreal. The abortions would be conducted by a woman who learned how to conduct abortions while working for the SS at Auschwitz. He would then blackmail these women for money or for sex.

Patrick Leahy

Now, I was a young prosecutor, a father of three children, in my twenties. I prosecuted him. I convicted him, but I went a step further. I arranged a case which became Beecham v. Leahy in Vermont. It was a precursor of Roe v. Wade, and basically Vermont took the same position as Roe v. Wade and said that abortions under appropriate mediate circumstances and all would be legal. I had already arranged that in our county because I made it very clear there not be prosecutions within the hospital, period. It is now the law in Vermont, anyway. First, it was case law. Now it is statutory law. So I understand that.

Patrick Leahy

You had spoken of Justice White, and I understand how easy it is to condemn a judge who usually cannot respond, but I know and I had spoken about this on the floor of the Senate how terrible it is when there is condemnation because one disagrees with a judge who said not that I want to release a person who has been charged with a heinous crime and by all accounts was guilty of a heinous crime. He never said I wanted to release him. He said, "I want to make sure he is guaranteed a fair trial."

Patrick Leahy

I mean, to condemn him for that is almost like condemning an attorney who is assigned to represent a criminal. They are fulfilling and upholding our Constitution to do.

Patrick Leahy

Now, some may agree or disagree in the law that he applied, but what he was saying is not release a criminal but guarantee that all of us have a fair trial, because that guarantees that the guilty are punished, the innocent remain free.

Patrick Leahy

Now, how anybody can condemn that -- and I was both a defense attorney and a prosecutor -- I don't know. He has been labeled a number of things. He voted to uphold convictions 95 percent of the times that the Justices of the Missouri Supreme Court appointed by then-Governor Ashcroft. So I understand that.

Patrick Leahy

The one area that your experience, both of you -- and I have known you both for years -- that really touches me that I can't know -- I come from a State which is 98, 99 percent -- I haven't got the latest census records -- white. I think probably -- when we talk about ethnic groups or minority groups in Vermont, we are talking about recent immigrants to our State either from Canada or other countries, like my grandparents or my parents-in-law. The relationships between whites and blacks I have learned in my years of going to law school here or on the first trip that I made as an 18-year-old, which would be 1958, to Washington with my parents, sightseeing, and seeing segregated water fountains. Inconceivable in our State of Vermont. I mean, we wouldn't know what you'd do with them. Seeing that here in Washington, D.C., the capital.

Patrick Leahy

Now, what I have learned, though, in my years here, I think, a depth of the feeling that you have expressed far more eloquently than I ever could. And what I have learned is that all of us, white, black, or whatever, who serve in positions of trust in the government of this country or the government of our State have a responsibility to everybody. That is not just to say I have no bias, I have no prejudice or anything else, but to make sure you take the steps necessary to demonstrate that it is an inclusive not an exclusive society, a society I want for my children and grandchildren. I want to be inclusive, not exclusive.

Patrick Leahy

We are a Nation of 280 million Americans. It is our inclusiveness that makes us strong. It is our exclusiveness that shatters us and makes us weak.

Patrick Leahy

Now, there are only 100 of us who can vote on a question of a nomination, a Presidential nomination. When we vote, we have to ask, Do we include or do we exclude?

Patrick Leahy

The Senator from Utah.

Orrin G. Hatch

Thank you, Mr. Chairman. I won't keep you long. I want to express my gratitude to both of you for being here today and being here this late this evening and for the eloquent statements that you have made.

Orrin G. Hatch

I will just say this: I was raised in poverty, and I learned a trade as a young man. I was fortunate enough because my father was a skilled tradesman, and I was able to join the union. We had three African-American lathers in our local, and they always got the worst work there was. I worked with them, not very much, but I was one of the few who did. I was proud to do it, and that meant on one occasion, if I can remember correctly, climbing with about a 65-pound tool box on one arm straight up five floors up to about the 15th floor of a building, one rung at a time, and then putting floor lath down, which was the most back-breaking work there was, which is what they were given. So I sense very strongly and feel very deeply about your feelings.

Orrin G. Hatch

Now, I also know Senator Ashcroft very well, and I believe, having watched him very closely, that when he says he will do something, he will do it. He is a religious man. He is a very good man. He has had 30 years of public service -- at least 27 to 28 years, I guess. I say about 30 years. And I am sure anybody who has been in public work for that long is going to have a record that can be condemned from time to time by somebody.

Orrin G. Hatch

But everybody here knows he is a man of integrity, and when he says he will do something, I think he will. But I just wanted to make that point. I don't want to prolong this.

Orrin G. Hatch

I want to thank you both for being here. I respect both of you, as you know, and I am grateful that you could be here and express your particular points of view.

Patrick Leahy

Senator Durbin?

Dick Durbin

To my two friends and former colleagues from the House, thank you for your patience. I have watched you all day sitting there listening as we have gone through this Committee hearing, and it says a lot about your commitment to this issue and this nomination that you would wait here for this opportunity to speak.

Dick Durbin

Dick Durbin

And, Congresswoman Waters, I grew up across the river in East St. Louis, and so we come from similar backgrounds.

Dick Durbin

And, Congresswoman Jackson Lee, thank you, too, for being here.

Dick Durbin

I am a product of the 1960's. I naively believed as a college student that if we could pass those civil rights laws that my children wouldn't even understand what racism was all about, wouldn't understand what prejudice meant. I would have to sit down and explain that is the way it used to be.

Dick Durbin

Things have gotten better, and thank goodness for that. But I have come to understand that it just isn't the law that makes it better. You need a government that believes in that law, that enforces that law and implements that law, and doesn't just do it out of duty but does it out of a heartfelt commitment. That government is not an abstract unit. That government consists of people. And the reason why this Committee, this Judiciary Committee, seems to struggle with the question of race so frequently is because the Department of Justice is really the place we turn to when it comes to civil rights.

Dick Durbin

We want to know that whoever is heading that Department not only understands the law and their legal obligation but has a commitment in their heart to make sure that it works.

Dick Durbin

I have not accused Senator Ashcroft of racial prejudice, nor will I. I don't believe that is appropriate. But I do question some of the decisions which he has made which have raised questions in the minds of people who wonder if he has that heartfelt commitment.

Dick Durbin

What happened to Justice Ronnie White should never happen to anyone. To be pilloried on the floor of the U.S. Senate as being pro-criminal after what that man has gone through in his life, in his professional background, that is why I believe it is appropriate for him to sit in that chair tomorrow by himself with that microphone and defend himself, for the first time in over a year to have a chance to tell his side of the story. The rebuttal witnesses will have their time, too. But he deserves that respect.

Dick Durbin

And I said it to Senator Ashcroft today, and I will repeat it. I believe what happened to him was disgraceful, and I don't believe the facts back it up. And if Senator Ashcroft disagreed with one decision or another, that is not enough to reject a man who had waited over 2 years for that opportunity.

Dick Durbin

Congresswoman Jackson Lee, that school desegregation story that Senator Kennedy has returned to time and time again is an important one, and it is, I think, especially important to note that we are talking about a voluntary desegregation plan. The people in St. Louis came together and said put the judges aside for a minute, let's let the parents and teachers and administrators and interested citizens find the solution for our community, and consistently ran into opposition from Senator Ashcroft in his official public positions. That is what causes some concern and questions as to whether he has the heartfelt commitment to make sure that the laws are implemented well.

Dick Durbin

Thank you both for being here. Your testimony makes a big difference.

Patrick Leahy

The Senator from Pennsylvania.

Arlen Specter

Thank you very much, Mr. Chairman. Just a word or two.

Arlen Specter

Thank you for coming. Thank you for staying. We are in the 11th hour of this hearing today. At 10 a.m., it was standing room only. Now there are plenty of seats. If anybody wants to come and see the hearing, there is easy access to the Russell Senate Office Building.

Arlen Specter

I appreciate what you Congresswomen have had to say. You are both very, very vigorous advocates. Congresswoman Sheila Jackson Lee is outspoken. She has outspoken me on a number of occasions when we have been on shows together. And with Congresswoman Maxine Waters, just a very short story. I chaired the Intelligence Committee a few years back, and we were having a hearing on whether the CIA was selling narcotics in Los Angeles to finance the contras. And Congresswoman Waters came in to quietly raise a point or two, and I invited her to sit on the panel, made her a part of the Senate panel. I demoted you for a day, Congresswoman Waters.

Arlen Specter

And I understand your concerns about civil rights, about the issues you have raised, and I won't detail why I understand them, but I do. And I don't have to talk about a record here. We all can't agree on everything, and my vantage point of Senator Ashcroft is a little different, having worked with him very closely, and he has answered a lot of very important questions. And there will be a lot of Congressional, senatorial oversight. But you are a couple of fighters, and I have great respect for you.

Arlen Specter

Representative Jackson Lee. Thank you, Senator.

Arlen Specter

Patrick Leahy

I thank the Senator from Pennsylvania.

Patrick Leahy

The senior Senator from New York.

Chuck Schumer

Thank you, Mr. Chairman, and let me join all of my colleagues here in the Senate in thanking the two Congress Members not only for their testimony but for their diligence and patience. They are both former colleagues of mine, and we both worked together, Maxine and I on the Banking Committee and Sheila and I on the Judiciary Committee. And we had a lot of good times over there.

Chuck Schumer

Let me ask just one question here, and I think this is -- I agree with Senator Durbin and all of my colleagues. I do not believe that Senator Ashcroft is a racist. I believe that he has appointed people of color to high office, and I think those of us who are on the more liberal side of the spectrum shouldn't demand that diversity means ideological similarity.

Chuck Schumer

What troubles me here is a certain insensitivity, I guess I would say, to the long and tortured history of race as a problem in America. And to me, that insensitivity deals with the always present or often present double standard. In other words, the way I would look at something is I would try, and I think we all should try, to be very careful. When you are opposing a black person for an office, you ought to make sure that you have imposed the same standard on everybody else. And you wouldn't normally have to do that if we didn't have a history of racism and if we didn't have a history of racial division. Then you would just say let's look at the merits and go for it. And certainly my views on crime issues and the views of both of you are not quite the same, as we learned during the crime bill. But that to me is not the issue. It is not a question of whether Judge White was soft on crime. Senator Ashcroft could well believe in good conscience that he was.

Chuck Schumer

The question is: Did Senator Ashcroft apply the same standard to Judge White's, quote, soft-on-crime stands that he applied to other judges? I can't remember the numbers in his testimony, but he approved, he voted to approve something like, I don't know, 210 out of the 240 judicial appointments that President Clinton put together.

Chuck Schumer

My guess is -- I have not researched this, although I hope by tomorrow morning I will -- that a good number or some number of the judges that Senator Ashcroft voted for were probably more liberal on crime issues than Judge White. That is the troublesome thing here.

Chuck Schumer

I think as a Senator, as an American, and certainly as an Attorney General, we need somebody who is going to be sensitive to that issue, that because a double standard has existed in America for so long, we have made progress in eradicating that standard over the last 30 or 40 years, but it is still there all too often, that one has to be sensitive to that. And the job of Attorney General demands particular sensitivity.

Chuck Schumer

I understand there was a political campaign going on, and I understand that when you get down to the wire there are lots of things any human being, all of us included, might do. But I think there are certain areas off limits, and one of them is not being sensitive to that double standard because double standards have been so poisonous to America for our history. And I just wonder if either of you would like to comment on that concept.

Maxine Waters

I certainly would like to comment on that concept, Senator. I want to try and share something with you that may help you to understand our very, very deep feelings about something like this.

Maxine Waters

First of all, let me just say this: Coming up, having been reared in St. Louis, Missouri, where there was a lot of poverty and segregated schools and parents who were striving very hard to give their children a chance -- and, I mean, it was rough. Just as Judge Ronnie White describes how he used to clean up, worked as a janitor as a kid in the White Castle stores, we started working when we were 11 and 12 years old. We didn't work for extra money. We worked because if we didn't work, we wouldn't have any clothes to go to school with. And during the summertime, we took jobs in segregated restaurants. I worked in Thompson's where black people couldn't eat. And at lunchtime, we could not eat in the restaurant. We had to eat in the basement. We did that because we had to have clothes to go back to school in September.

Maxine Waters

All of the kids in our neighborhood started work at a very early age, and many of us not only bought clothes, but the dollars that we earned helped to feed the other kids. There was no birth control. My mother had 13 children. She had a fourth- grade education. And she worked on the polls. She didn't know a lot. She could not help a lot of the people who wanted to vote. That's why this business about excluding St. Louis in the voter registration training of registrars kind of strikes at me. I watched her work on the polls and do the best that she could. She believed in voting, and a lot of people in our neighborhood did not believe in voting.

Maxine Waters

And so when you talk about these things, we are not relating to them in abstract. It touches us very, very deeply, and it hurts.

Maxine Waters

Now, when you talk about the insensitivity, it could be described as that. But, you know, there is something called 1,000 nicks.

Patrick Leahy

What?

Maxine Waters

A thousand nicks. They add up. And when the nicks continue over a period of time, then you define yourself. You define yourself in ways that many of us who have had to be on the lookout all of our lives for the obstacles, how to get around them, how to keep people from limiting our opportunity. We know it when we see it. And he fits the description.

Maxine Waters

And I want to tell you that the insensitivity that you describe is even deeper than that, because to be an African- American man who has had to struggle through poverty and struggle through all that he had to go through with, knowing that you have to be better than most in order to get something like an appointment to the Federal bench. There are not many of us who get appointments like that. And you work your way up, and you work hard. You play by the rules. You do everything that you possibly can, and you get the support in the Judiciary Committee, bipartisan support. And you have a lot of supporters with you -- only to be stopped on the floor in an unusual and extraordinary way is beyond insensitivity.

Maxine Waters

You cannot fall back and describe yourself as being a person of high moral character and a person deeply steeped in religion. We know something about religion, too, and it teaches us to be better than that. You don't destroy human beings simply because you have the power to do it. You help people. You don't take this vulnerable African-American man who has worked all of his life against the odds to get to a place where most of us will never get and sandbag him because all of a sudden you have got an election and he becomes the poster boy for your election, and you can only be appealing to a certain element in our society with that kind of argument is beyond sensitivity, Senator.

Maxine Waters

And I want you to know that that is when he really caught my attention. And I want to tell you, he could sit here and he could say to us over and over again, Well, I did that then, but I am going to be better, yes, I know I have been passionate on this, but I am going to enforce the laws.

Maxine Waters

It does not ring true. It does not ring true.

Maxine Waters

And let me close by saying this, and it is kind of a secret I will share with you about what happens in African-American communities and in homes. We fear for our children, and we fear for these black boys. And I can recall when my son was in school in a certain place in the State that was known to have Ku Klux Klan activity. And he met a very nice young white boy who wanted him to go to his house for Thanksgiving. But it was in a community where there were no blacks, and this community had a reputation. And I said to my son, You can't do that, you cannot do that. You cannot be caught in a community where we know there have been some problems in the past, no matter how much you like your friend and no matter how good you think he is. He probably is a very fine person.

Maxine Waters

But we know that if you get caught at the wrong time and the wrong place, you will become fodder for people whose intentions are not honorable, for people who are racist, for people who would destroy you. And we have to continue to remind our children day in and day out about what they can't do, where they can't be, how they got to be careful. And Ronnie White followed all of the rules and he had to be careful in order to get where he got. And to be treated the way that he was treated, to be sandbagged the way that he was treated, he will never get over it, and his career may have been damaged forever.

Maxine Waters

And so, yes, I understand what you are saying, Senator, about sensitivity. But let me just tell you, those of us who have to guard against getting sandbagged all of our lives call it something else. It goes a little bit deeper than simply a lack of sensitivity.

Maxine Waters

Representative Jackson Lee. Would the Chairman allow me to --

Patrick Leahy

Representative Jackson Lee. He said one or both of us, and I feel compelled to respond, Senator Schumer, because I think you captured the relationships, the working relationships. We can all work together. You worked with both of us, Congresswoman Waters and myself, and Senator Hatch made a comment as well, along with Senator Durbin, on this whole issue of race. And I want to just refer you -- and we ask the question where were we on the day tragically of the assassination of President Kennedy. Many of us ask the same question of where we were the day Martin Luther King was killed.

Patrick Leahy

Patrick Leahy

This is not an attempt to create hysteria as much as it is an attempt to characterize for you what we hear and see. We still have heroes in the African-American community. We still look to that one judge on the Missouri Supreme Court. It was Ronnie White. He is a hero. It was an honor. You may think that African-Americans do not pay attention to that journey on the floor of the Senate, but they did. And frankly, they viewed the actions of Senator Ashcroft more as a shredding of a man's reputation and his dignity.

Patrick Leahy

I read the transcript when he came to this Committee and he introduced his wife and his son, and he was proud of that, and he had his aide here. I saw the language of Senator Kit Bond, in fact, that said he had the necessary qualifications and character traits which were required for the job.

Patrick Leahy

William Clay, who retired, presented him and mentioned that he went first to Senator Ashcroft to get his blessings and believed that he had it.

Patrick Leahy

I just want to put into the record the numbers as I conclude about this whole issue of the death penalty cases because, whenever you see faces like mine, you immediately box us in. There is a diverse opinion in our communities on crime, on the death penalty. I can assure you that the African- American community are law-abiding. They are intimidated by crime. They want to make sure that those who are convicted fairly of a crime, the crime is addressed, but that is no reason to blanket us and to assume that Justice White could be so tattered and tainted without really looking into his record.

Patrick Leahy

We find that Judge White voted to uphold the death sentence in 41 of the 59 cases that came before him, roughly the same proportion of Ashcroft's court appointees when he was Governor.

Patrick Leahy

In fact, of these 59 death penalty cases, Judge White was the sole dissenter in only three of them. That means that he was joined by other members of the Missouri Supreme Court.

Patrick Leahy

Lastly, what seemed to not get to be part of the record is the 15 cases, and it may be in this record, of course, of which Judge White wrote the majority.

Patrick Leahy

Senator Biden asked the question to Senator Ashcroft that I think was never asked. Justice Scalia wrote an opinion in contrary to what you think his views were as relates to the death penalty which might have been characterized as liberal, meaning that it might have been characterized as an opinion where the defendant was given the right to redress his grievances.

Patrick Leahy

The question is that Senator Ashcroft go to the floor of the House to comment on that decision or maybe other decisions of like-situated individuals or did he single out Justice White, and so the question I have on both the segregation or desegregation order and as well as Justice White, it is not where we stand in times of comfort and calm. It is not the 200 non-controversial appointees that the Clinton administration put forward even in the Foreign Relations Committee or the Judiciary Committee. We all can find common ground on the non- controversial.

Patrick Leahy

It is not the question of whether or not we have friends, that we don't have it in our heart. Senator Hatch, I don't have any reason to believe that Senator Ashcroft is racist in his spirit, his heart. I only go on his record, on his actions, and when I ask the question -- and so I make no accusations here. What I ask the question, the vulnerable need the Attorney General. I need him. My community needs him, and he will have to make decisions in controversy. He will have to make decisions when it is unpopular to do what is right.

Patrick Leahy

My challenge is or the question I raise is why in the voluntary efforts of his community, why he didn't rise to the occasion, a man of faith, a man who loved this country, to heal us, applaud the agreement, bring the agreement to the point of success, use his office to guide the agreement to a successful legal end and a successful end in terms of the communities having it work, and last with Justice White, why did he not in the course of making a decision about Justice White rise in this controversial time that had been created to the point of looking at his holistic record for the greater good, rising above politics and championing Justice White's nomination and successful vote on the floor of the Senate. It is where you stand in time of controversy, and that is what African- Americans, but as well vulnerable Americans, look to the Attorney General position and the Department of Justice, will you help us when we need you.

Patrick Leahy

The senior Senator from Ohio.

Patrick Leahy

Michael DeWine

I just want to thank our witnesses for their patience today, and I appreciate their testimony. I don't have any questions.

Michael DeWine

Patrick Leahy

The Senator from Alabama.

Jeff Sessions

I join in thanking the witnesses, and it is good to see you. Congresswoman Jackson Lee, you have been here all day. I kind of wish you could have been on this side and maybe seen John's testimony on the face. I think he was very sincere, and I think you will be very pleased with his service.

Patrick Leahy

Unless there are further questions, we will stand in recess until 9:30 in the morning.

Patrick Leahy

Representative Jackson Lee. Thank you so very much.

Patrick Leahy

NOMINATION OF JOHN ASHCROFT TO BE ATTORNEY GENERAL OF THE UNITED STATES --

Patrick Leahy

Senate, Committee on the Judiciary, Washington, DC.

Patrick Leahy

The Committee met, pursuant to notice, at 9:36 a.m., in room SR-325, Russell Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding.

Patrick Leahy

Present: Senators Leahy, Kennedy, Kohl, Feinstein, Feingold, Schumer, Durbin, Cantwell, Hatch, Thurmond, Specter, Kyl, DeWine, Sessions, Smith, and Brownback.

Patrick Leahy

The Committee will be in order. I would urge those who are attending to please take their seats.

Patrick Leahy

Judge White, I want to thank you for responding to the Committee's request to be here today. As you know, there has been a great deal of discussion about Senator Ashcroft's efforts to defeat your nomination to the United States District Court. Many have said that it was a defining moment of his Senate career. His supporters say it defined him in a way he wanted. Those who disagreed say it defined him in yet a different way. Most importantly, your testimony may help us understand what happened, even why it did happen. And so I thank you for being here.

Patrick Leahy

We will hear your testimony, but first did you have anything you wanted to add?

Orrin G. Hatch

No. I am happy to just proceed. Thank you.

Patrick Leahy

And you know we have these lights. I think I explained the way they work. We will have your statement, Judge, and then we will do the usual bit, as I explained, going back and forth. You have been in legislative bodies. You are well aware of this. Thank you for being here, sir.

Patrick Leahy

STATEMENT OF HON. RONNIE WHITE, JUDGE, MISSOURI SUPREME COURT,

Ronnie White

Thank you, Mr. Chairman, Senator Hatch, and all members of the Judiciary Committee, for inviting me here to testify today. Thank you for twice voting in favor of my nomination to the Federal district court in 1999 and 1998.

Ronnie White

I appreciate this opportunity to tell my story to the U.S. Senate and to reclaim my reputation as a judge and a lawyer.

Ronnie White

It will be up to you, members of the Committee, to determine what light this narrative casts on the decision you will make in voting to confirm the next Attorney General of the United States.

Ronnie White

I am the oldest son born to teenage parents. When I was born, my mother was 16 years old and my father was 19 years old. My mother dropped out of high school in the ninth grade to take care of me. My father worked in the post office, first as a mail sorter and then as station manager. As I grew up, I watched my mother and father work hard, play by the rules, and never quite make ends meet.

Ronnie White

We lived in an unfinished basement of a home with jagged concrete walls and without a kitchen or bathroom. I grew up in a segregated neighborhood in St. Louis.

Ronnie White

When I was 10 years old, I was bused to a grade school in south St. Louis where kids would throw milk and food at us and tell us to go back to where we came from. This racism only strengthened my determination. I was not going to let my color, the color of my skin -- or the ignorance or hatefulness of others -- hold me back. I would get the best education I could, and I would use that education to make a better life for myself and for my family and for my community.

Ronnie White

My parents could not afford to pay for my education. Since age 11, I have always worked to earn money. I sold newspapers for a half-cent each, and I worked as a janitor at a fast-food restaurant. I worked my way through high school, college, and law school. Although balancing work and school was not always easy, I struggled through it and made it.

Ronnie White

I have earned my good reputation as a lawyer and a judge by earning the respect of my neighbors. I was elected to the Missouri Legislature in 1989, and when I was in the legislature, I was twice selected to be chairman of the Judiciary Committee. As Chair of this Committee, I worked with my legislative colleagues, members of the executive branch, and citizens and law enforcement officials to strengthen the laws and the application of those laws on behalf of the people of my State.

Ronnie White

In 1994, I was appointed to the Missouri Court of Appeals by the late Governor Mel Carnahan. One year later, Governor Carnahan appointed me to the Missouri Supreme Court. It is the law in Missouri that State Supreme Court judges are voted on by the people after they have been appointed. I came up for a retention vote in 1996 and received more than one million votes.

Ronnie White

I was the first African-American to serve on the Missouri Supreme Court, the first in the 175-year history of the court. Born into segregation, I broke this color barrier.

Ronnie White

The high point of my professional life came in 1998 when President Bill Clinton nominated me to the Federal district court at the suggestion of then-Congressman William Clay. What an amazing feeling for a young man from the inner city of St. Louis.

Ronnie White

At that moment, I felt that I was living the American dream. If you work hard, no matter your race, class, or creed, you can succeed. This is why my parents -- and millions of hard- working families throughout this great country -- dream of for their kids.

Ronnie White

However, even though the American Bar Association gave me a unanimous qualified rating, my nomination was not confirmed. I was approved twice by this Committee, by votes of 15-3 and 12- 6, but I was voted down by the U.S. Senate at the urging of Senator John Ashcroft.

Ronnie White

What happened? When I came before this Committee, I was introduced by Senator Kit Bond, who urged my confirmation. Congressman Clay also introduced me and reported to this Committee that Senator Ashcroft had polled my colleagues on the Supreme Court, all of whom he had appointed when he was Governor, and that they spoke highly of me and said I would make an outstanding Federal judge. After the hearing, we received additional follow-up questions from Senator Ashcroft. The other nominees were asked six questions. I was asked those questions and an additional 15. I answered all of those questions in a full and timely manner.

Ronnie White

And then I learned that Senator Ashcroft was opposing me. I was very surprised to hear that he had gone to the Senate floor and called me "pro-criminal," "with a tremendous bent toward criminal activity," that he told his colleagues that I was "against prosecutors and the culture in terms of maintaining order."

Ronnie White

I deeply resent those baseless misrepresentations. In fact -- and I want to say this as clearly as I can -- my record belies those accusations.

Ronnie White

Senator Ashcroft said on the Senate floor that I had a "serious bias" against the death penalty. According to my records, at the time of my hearing, I had voted to affirm the death penalty in 41 of 59 cases that I had heard. In 10 of the remaining 18 cases, I joined in a unanimous court in voting to reverse. In two other reversals, I voted with the court majority.

Ronnie White

These are the facts: I voted with the majority of the court in 53 of 59 death penalty cases. In only six cases did I dissent, and in only three of those was I the lone dissenter.

Ronnie White

Senator John Ashcroft has pointed to the case of State v. Johnson as the main reason he opposed my nomination. Yet this case did not appear in any of the questions he sent to me. Senator Ashcroft never raised the Johnson case with me, never questioned me about my opinion, or asked me to explain my reasoning.

Ronnie White

My dissenting opinion in this case urged a new trial, not a complete release. I based my opinion on the sound and settled constitutional law as handed down by the U.S. Supreme Court in Strickland v. Washington. I never disregarded the terrible violence that had been done in this case. Senator Ashcroft's rhetoric left the impression that I was calling for Johnson's release. This is just not true.

Ronnie White

The record of this case -- indeed, my entire record -- shows that it is not true -- a record I am now glad to have the opportunity to explain to the U.S. Senate. My record as a judge shows that the personal attacks made on me were not true. I am proud of my record as a judge. I have lived up to the confidence expressed in me by Governor Carnahan and the people of Missouri. After decades of public service, I come before you today more committed than ever to the rule of law.

Ronnie White

When I was 10 years old, I stood up to the bullies who made mean-spirited comments and tried to drive me away. Today, I am here to stand up for my record, my reputation as a judge, and as a citizen.

Ronnie White

Thank you for giving me the opportunity to testify today, and I will be pleased to take any questions you may have.

Ronnie White

I appreciate this opportunity to tell my story to the United States Senate. And to reclaim my reputation as a lawyer and a judge.

Ronnie White

It will be up to you, members of the Committee, to determine what light this narrative casts on the decision you will make in voting to confirm the next Attorney General of the United States.

Ronnie White

I am the oldest son born to teenage parents. When I was born my mother was 16 years old and my father was 19 years old. My mother dropped out of high school in the 9" grade to take care of me. My father worked in the post office; first as a mail sorter and then as station manager. As I grew up, I watched my mother and father work hard, play by the rules and never quite make ends meet.

Ronnie White

We lived in an unfinished basement of a home with jagged concrete walls and without a kitchen or bathroom. I grew up in a segregated neighborhood in St. Louis.

Ronnie White

When I was 10 years old, I was bused to a grade school in south St. Louis where kids would throw milk and food at us and tell us to go back to where we came from. This racism only strengthened my determination. I was not going to let the color of my skin -- or the ignorance and hatefulness of others -- hold me back. I would get the best education I could, and I would use that education to make a better life for myself, for my family and for my community.

Ronnie White

My parents could not afford to pay for my education. Since age 11, I have always worked to earn money. I sold newspapers for half a cent each, and I was a janitor at a fast food restaurant. I worked my way through high school, college and law school. Although balancing work and school was not always easy, I struggled through and made it.

Ronnie White

I have earned my good reputation as a lawyer and judge by earning the respect of my neighbors. I was elected to the Missouri Legislature in 1989, and when I was in the Legislature I was twice selected to be Chairman of the Judiciary Committee. As Chair of the Committee, I worked with my legislative colleagues, members of the executive branch, and citizens and law enforcement officials to strengthen the laws and the application of those laws on behalf of the people of my state.

Ronnie White

In 1994, I was appointed to the Missouri Court of Appeals by Governor Mel Carnahan. One year later, Governor Carnahan appointed me to the Missouri Supreme Court. It is the law in Missouri that Supreme Court judges are voted on by the people after they have been appointed. I came up for a retention vote in 1996 and received more than one million votes.

Ronnie White

I was the first African-American judge to serve on the Missouri Supreme Court; the first in the 175 year history of the court. Born into segregation, I broke this color barrier.

Ronnie White

The high point of my professional life came in 1998 when President Clinton nominated me to the Federal District Court at the suggestion of then-Congressman William Clay. What an amazing feeling for the young man from the inner city of St. Louis.

Ronnie White

At that moment, I felt that I was living the American dream. If you work hard -- no matter your race, class or creed -- you can succeed. This is what my parents -- and millions of hard working families throughout this great country -- dream of for their kids.

Ronnie White

However, even though the American Bar Association gave me a unanimous "qualified" rating, my nomination was not confirmed. I was approved twice by this Committee, by votes of 15 to 3 and 12 to 6, but I was voted down by the United States Senate at the urging of Senator John Ashcroft.

Ronnie White

What happened? When I came before this Committee I was introduced by Sen. Kit Bond, who urged my confirmation. Congressman Clay also introduced me and reported to this Committee that Senator Ashcroft had polled my colleagues on the Supreme Court, all of whom he had appointed when he was governor, and that they spoke highly of me and said I would make an outstanding federal judge. After the hearing we received additional follow-up questions from Senator Ashcroft. The other nominees were asked 6 questions. I was asked those questions and an additional 15. I answered those questions in a full and timely manner.

Ronnie White

And then I learned that Senator Ashcroft was opposing me. I was very surprised to hear that he had gone to the Senate floor and called me "pro-criminal," "with a tremendous bent toward criminal activity;" that he told his colleagues that I was "against prosecutors and the culture in terms of maintaining order."

Ronnie White

I deeply resent those baseless misrepresentations. In fact -- and I want to say this as clearly as I can -- my record belies these accusations.

Ronnie White

Senator Ashcroft said on the Senate floor that I had a "serious bias" against the death penalty. According to my records, at the time of my hearing, I had voted to affirm the death penalty in 41 of 59 cases that I have heard. In 10 of the remaining 18 cases I joined a unanimous court in voting to reverse. In two other reversals, I voted with the court majority.

Ronnie White

These are the facts: I voted with the majority of the court in 53 of 59 death penalty cases. In only 6 cases did I dissent, and in only 3 of these was I the lone dissenter.

Ronnie White

My dissenting opinion in this case urged a new trial, not a complete release. I based my opinion on sound and settled Constitutional law as handed down by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). 1 never disregarded the terrible violence that had been done in this case. Senator Ashcroft's rhetoric left the impression that I was calling for Johnson's release. That is just not true.

Ronnie White

The record of this case, indeed my entire record, shows that it is not true -- a record I am now glad to have the opportunity to explain to the United States Senate. My record as a judge shows that the personal attacks made on me were not true. I am proud of my record as a judge. I have lived up to the confidence expressed in me by Governor Carnahan and the people of Missouri. After decades of public service, I come before you today more committed than ever to the rule of law.

Ronnie White

When I was 10 years old, I stood up to the bullies who made meanspirited comments and tried to drive me away. Today, I am here to stand up for my record, my reputation as a judge, and as citizen.

Ronnie White

Thank you for giving me the opportunity to testify today. I will be happy to take any questions that you may have.

Patrick Leahy

Thank you, Judge.

Patrick Leahy

I think the last time I saw you was at your other appearance before the Committee, at your confirmation hearing back in May 1998. As you noted in your testimony today, Senator Ashcroft said that he based his opposition to you on three of your decisions from the hundreds of cases you have heard. He told the Senate that you were pro-criminal, with a tremendous bent toward criminal activity, anti-death penalty, and against prosecutors and the culture in terms of maintaining order, inflammatory charges, and they are charges that have always troubled me. And I was concerned in the 2 days and hours and hours of hearings that Senator Ashcroft never disavowed that language. He had a lot of opportunities to do so in answers to questions by Senator Durbin and a number of others here.

Patrick Leahy

In fact, I went back and reread the three cases in which he convinced his colleagues, his Republican colleagues, to vote against you on October 5th. That was the time when they all came out of the Republican Caucus and in a party-line vote, something I had never seen before in a case like this, voted to not allow you to go on the Federal bench. And I hope all Senators will read those cases themselves or consider the two columns written by the noted conservative columnist Stuart Taylor in National Journal over the last 2 years on these decisions. And I will be inserting those and some other items in the record.

Patrick Leahy

So I thought about this. It has troubled me for really more than a year. I still don't understand what motivated Senator Ashcroft to fight so hard to have your nomination defeated. I have gone over and over the record. I have talked to him about it. I have found something interesting. Senator Ashcroft inserted a short statement in our Committee record in May 1998 in which he noted a different reason to oppose your confirmation. He wrote, "I have been contacted by constituents who were injured by the nominee's manipulation of legislative procedures while a member of the Missouri General Assembly. This contributes to my decision to vote against the nomination."

Patrick Leahy

I wasn't sure what he was talking about, so I went back to some of the questions that he had submitted to you, written questions. He asked you about a vote, and so I would ask you about that. That vote that he asked you about was a vote on restrictive anti-abortion legislation that then-Governor Ashcroft was supporting. Is that correct?

Ronnie White

And do you recall what happened in that incident?

Patrick Leahy

Ronnie White

Yes, Mr. Chairman. I was asked this question by Senator Ashcroft regarding that, and here is the answer I gave. The question was: I understand that while you served in the State legislature, you called an unscheduled vote that resulted in the defeat of a measure designed to limit abortions. Could you please provide the details of this incident?

Ronnie White

Here was my answer: As chairman of the House Judiciary Committee, I promised to sponsor the legislation, that I would give him a hearing date that was convenient for a majority of the Committee members. On the evening in question, the bill's sponsor repeatedly demanded that we take up his bill. I objected and stated we would hear the bill at a later time after I had had an opportunity to notify all the Committee members. The bill's sponsor continued to disrupt the Committee by speaking loudly without being recognized by the Chair. This conduct persisted for at least 15 minutes.

Ronnie White

Finally, I recognized a Committee member who made a motion to bring up the bill. This motion was seconded and a vote was taken, which defeated the measure by a tie vote.

Ronnie White

This drastic action only occurred as a result of the unruly behavior of the bill's sponsor. There was no attempt to deceive the Committee members not present by taking a vote behind their backs.

Patrick Leahy

So the sponsor of the bill, which then- Governor Ashcroft supported, as I understand --

Ronnie White

I believe that is correct.

Patrick Leahy

He insisted you bring it up. When you brought it up, he lost on a tie vote. This is something that happened years and years ago in a legislative body where people for and against an issue have voted on it. Do you feel this contributed to Senator Ashcroft's efforts, as it turned out, successful efforts, to derail your nomination to the Federal bench?

Ronnie White

Senator, I don't know exactly what Senator Ashcroft's concerns were, but it caused me a concern when I received the additional questions and he specifically asked about that legislation in 1992. And what I said to you this morning are the facts surrounding that.

Patrick Leahy

Judge White, you serve on the bench with a number of justices who were appointed by then-Governor Ashcroft. Is that correct?

Ronnie White

You have had a number of death penalty cases that have come before the court. Do you know how often you voted the same way, either to uphold or to remand, death penalty cases in conjunction with those appointed by then- Governor Ashcroft?

Patrick Leahy

Ronnie White

I don't have the specific numbers, Mr. Chairman, but I believe that it is about 75 percent of the time. As the numbers indicate, there were 41 of 56 or 58 cases where I voted to affirm the death penalty.

Patrick Leahy

Would it surprise you if I told you that a survey done independently finds that you voted with the Ashcroft appointees 95 percent of the time?

Ronnie White

Well, not really, because there is not that much variation on those death penalty cases.

Patrick Leahy

So if you are so completely out of step, they have got to be a bit out of step, too. That is my point. And the fact is on the case we keep hearing about, this gruesome murder case, is it not a fact that you were not trying to release the person charge with murder, you were just trying to make sure he got a fair trial. Is that correct?

Ronnie White

That is correct. What I was trying to do was to make sure that the defendant had competent counsel before there was any talk of punishment. And in that case, I urged him -- I urged a new trial so that he could get competent counsel.

Patrick Leahy

And in your experience, is there any question that in a case like that, if he was found guilty, a jury would in all likelihood recommend the death penalty and that death penalty would be upheld.

Ronnie White

I believe so.

Patrick Leahy

Justice White, welcome to the Committee. We are happy to have you back before the Committee.

Orrin G. Hatch

Ronnie White

I have a lot of respect for what you went through in your life and how you came up the hard way. Having worked as a former janitor myself, I understand a little bit about that. But let me tell you, I have a lot of respect for you personally.

Orrin G. Hatch

Dianne Feinstein

We can't hear.

Patrick Leahy

They can't hear you, Orrin.

Orrin G. Hatch

I think they can. I will just do my best.

Orrin G. Hatch

I just have two questions --

Patrick Leahy

Senator Feinstein can't hear you.

Orrin G. Hatch

Oh, you can't hear?

Dianne Feinstein

It is hard to hear back here.

Patrick Leahy

I don't know if we are having trouble with the sound system.

Orrin G. Hatch

I don't know how to make it work any better, but --

Patrick Leahy

Boost it up a bit.

Orrin G. Hatch

I just have two questions that maybe I ought to clear up. To your knowledge, did Senator Ashcroft ever actually state that you were calling for Mr. Johnson's release, this fellow who had killed four people?

Ronnie White

To my knowledge, he did not.

Orrin G. Hatch

OK. Now, I know that ten lawyers can look at a statute and have ten different opinions and interpret the law in different ways, and that is even true with two-letter words. We can always get into fights among lawyers. But when you said, referring to your dissent in Johnson, that "I based my opinion on sound and settled constitutional laws handed down by the Supreme Court in Strickland v. Washington," is it not true that you were the only justice on your court who came to that conclusion in that particularly heinous case, and all other justices, whether appointed by a Republican or a Democrat, disagreed with your interpretation of the Supreme Court settled law?

Ronnie White

I was the only judge who came to that conclusion, but all of the judges agreed that the defendant had incompetent counsel. Yet those judges in the majority didn't get to the prejudice part, where I did. And my separation from them was I believed that I was following the probable result standard set out in Strickland v. Washington versus the outcome determinative result that they were following.

Orrin G. Hatch

I understand. Those are the only questions I want to ask you, and, again, I am happy to have you before the Committee, and I want you treated fairly, as always.

Ronnie White

Justice White, welcome, and I want to thank you very much for agreeing to appear before the Committee. I know it is not easy to continue to relive this long ordeal.

Patrick Leahy

Senator Kennedy?

Joe Kennedy III

Joe Kennedy III

Let me ask you, did Senator Ashcroft ever raise these issues with you prior to the vote in 1999?

Ronnie White

No, he did not, Senator.

Joe Kennedy III

Did he ever give you the opportunity which you have here today to be able to explain these positions or to discuss these positions prior to the time of the vote? Did he ever call you in and let you know what his problems were and ask you for an explanation, give you a reasonable opportunity to answer these kinds of charges that he made against you on the Senate floor?

Ronnie White

Senator Kennedy, the only question that he gave me an opportunity to respond to was the question about the anti-choice bill in 1992. I never had an opportunity to discuss the Johnson case.

Joe Kennedy III

Do you have any idea why Senator Ashcroft would make these charges about your judicial record that were inaccurate? Do you believe you know the reasons why he opposed your candidacy so vociferously?

Ronnie White

Senator Kennedy, I don't know exactly what his reasons were, and I am just trying to lay out the facts and circumstances surrounding the rejection of my nomination as I believe them to be. I don't know what is in his mind or what is in his heart. So I wouldn't want to speculate on that.

Joe Kennedy III

Could you just make a brief comment on these kinds of accusations about being pro-criminal, against prosecutors, against maintaining law and order? What is your own view? What is your own attitude? That is an open-ended question, but maybe you could respond and be reasonably brief.

Ronnie White

I believe that Senator John Ashcroft seriously distorted my record. But I believe that the question for the Senate is whether these misrepresentations are consistent with fair play and justice that you all would require of the U.S. Attorney General. And that would be my position on that.

Joe Kennedy III

Well, I would like to make just a couple more points. We hear a lot of talk these days about what is being called the politics of personal destruction. But what happened to you is ten times worse than anything that has happened to Senator Ashcroft in the current controversy. In my view, what happened to you is the ugliest thing that has happened to any nominee in all my years in the U.S. Senate.

Joe Kennedy III

Your record in the Missouri Supreme Court was grossly distorted by Senator Ashcroft. He tried to use your record on death penalty cases to help win his hotly contested Senate seat in Missouri against Governor Carnahan. And most of us have rarely witnessed so much instant genuine public outrage over what happened so unfairly to you.

Joe Kennedy III

So it has taken considerable courage for you to come here today, Judge White. I am pleased that you are here because you have helped to put a very personal and very human face on a very serious injustice.

Joe Kennedy III

Mr. Chairman, I have no further questions.

Ronnie White

Patrick Leahy

The senior Senator from Pennsylvania.

Patrick Leahy

Arlen Specter

Is it appropriate to call you "judge" or "justice"?

Ronnie White

It is "judge," Senator.

Arlen Specter

"Judge"?

Ronnie White

But I will answer by either one.

Arlen Specter

In Pennsylvania Supreme Court, those are called "justices," and in the lower courts, they are called "judge." But they call you "judge"?

Ronnie White

They call us "judge." It sounds a lot more important when you say "justice," but in Missouri we are "judges" and the chief judge is "justice."

Arlen Specter

OK, Judge White. Thank you for coming here today, and I think it is useful and appropriate that you have had a chance to state your position. The question which we are focusing on here -- and I think you put it well when you said whether it is consistent with fair play and justice in evaluating Senator Ashcroft's qualifications to be Attorney General of the United States.

Arlen Specter

I think at the outset it ought to be noted publicly that the Senate does not deliberate a great deal on United States district court judges. That is an unhappy fact of life because of our workload. And the same applies to the courts of appeals. And these are very, very important positions. When there is a nomination for the Supreme Court of the United States, there is a lot of attention. You sort of sometimes judge the attention by the number of television cameras which show up. And as you probably noted from your own hearing, there were very few Senators present. Customarily there is the presiding Senator and sometimes not even a ranking member of the other side. So that unless there is some extraordinary incident, the Senate does not pay as much attention to the specifics on this confirmation process as it should.

Arlen Specter

And what happened in your case was that the matter came to a head, candidly, at the very last minute and really in sort of surprising circumstances. So I think in a sense the Senate owes you an apology for not having more of a focus. And perhaps in a situation where we are to reject a nominee, there ought to be special attention. It is OK to pass a nominee without a great deal of fanfare. And there are checks. There is an FBI check and an American Bar Association check, and the staff of the Judiciary Committee makes a check. So that I don't want to leave the impression that it is a casual matter to be confirmed, but I do think it ought to be stated expressly and understood that Senators do not participate as much as perhaps we should because of the workload. The question which I come to, Judge White, is whether Senator Ashcroft did anything but exercise his own judgment in the decision he made as to your nomination.

Arlen Specter

I had a very heated controversy with Senator Ashcroft on a Philadelphia State court judge, Judge Federica Mesiah Jackson, who would have been the first African-American woman to be appointed to the United States District Court for the Eastern District of Pennsylvania, and I studied her record carefully and knew her to some extent and thought she was qualified for the position, and Senator Ashcroft and others on this Committee thought she was not. We had some very heated hearings on her sentencing policies, and I had a very sharp disagreement with Senator Hatch who presided at the hearings because she had gone through 50 cases and answered questions and then came in and was confronted with 30 more cases, and I didn't like the process and I complained about it. It didn't do me any good, but I complained about it. But at the end of that event, I did not question Senator Ashcroft's motives. He thought she was not qualified. I thought she was. I thought he was wrong, and she eventually withdrew.

Arlen Specter

The story has a somewhat happy ending. She is now the president judge of the Common Pleas Court of Philadelphia, a very distinguished position, perhaps more distinguished than being a Federal district court judge.

Arlen Specter

So the question that I have for you, Judge White, is, do you think that Senator Ashcroft was doing anything other than expressing his own honesty?

Ronnie White

Senator, I think he can express his own honest views, but to call me pro-criminal and with a criminal bent and if you look at the record, the record don't support those views.

Arlen Specter

Well, I would be inclined to agree that characterizations are not helpful and they are hurtful, and we have had a little sparring with Senator Ashcroft on a number of the things he said.

Arlen Specter

He said people in the middle of the road are either moderates or dead skunks.

Arlen Specter

OK on time?

Patrick Leahy

You are out of time, but go ahead and finish your thought.

Arlen Specter

OK. Well, I saw the red light on, but I want to pursue this a bit.

Arlen Specter

So let's move ahead that his language was intemperate. Do you think that is a disqualification for being Attorney General of the United States?

Ronnie White

I don't know what a disqualification would be, Senator. All I am stating to you are the facts, and the fact is that Senator John Ashcroft seriously distorted my record. I believe the question is for the Senate to answer.

Arlen Specter

Well --

Patrick Leahy

Senator, we will go back with another round.

Arlen Specter

Let me just ask one more question at this time.

Patrick Leahy

I will give extra time for that one, but then the Senator from California will also have extra time.

Arlen Specter

Senator Bond concurred with Senator Ashcroft. Do you have any reason to question -- in opposing your nomination and opposing it forcefully, do you have any reason to question Senator Bond's sincerity on his own judgment?

Arlen Specter

Well, what I am looking for Judge White is, is the sincerity of John Ashcroft and Kit Bond -- they may be wrong, they may be intemperate, but looking at Ashcroft's qualifications, I raise the issue as to whether you think they were less than honest or less than sincere, and I throw Senator Bond into the mix. What do you think?

Ronnie White

I think the facts of my situation show that Senator Bond came before this Committee and spoke very highly of me.

Ronnie White

What happened between the time I was presented to the Committee by Senator Bond and the vote was taken, I don't know.

Arlen Specter

Thank you. Thank you.

Patrick Leahy

The Senator from California.

Patrick Leahy

I tried to make sure that the Senator from Pennsylvania had extra time, and he did, but I am going to have to urge Senators to try to keep to the time limit. Both Senator Hatch and I kept actually under our time, and I say that because I know a number of Senators are on other confirmation hearings, as I am and several others are, today, and they are trying to balance their time back and forth. So, in fairness to all Senators, we will try to keep very close to the clock. However, the Senator from California, because of the balance on here, could have a little bit of extra time.

Patrick Leahy

Dianne Feinstein

Judge White, good morning.

Dianne Feinstein

Ronnie White

Good morning.

Dianne Feinstein

I would just like to extend to you my personal apology for what happened to you. I have been on this Committee for 8 years. I have never seen it happen before.

Dianne Feinstein

I want you to know that many of us, particularly on our side of the aisle, were totally blind-sided by what happened. It came without warning. The letter from the National Sheriffs' Association was distributed on the floor directly with no prior notice to this Committee or members of this Committee, and I, for one, don't feel it is necessary for anyone to go through that kind of personal humiliation.

Dianne Feinstein

You have had a good positive career, and there was no reason for this to happen to you. I just want you to have my personal apology for what did happen.

Ronnie White

During the floor statement on your nomination, Senator Ashcroft said the following, and I quote from the record, "Judge White has been more liberal on the death penalty during his tenure than any other judge in the Missouri Supreme Court. He has dissented in death penalty cases more than any other judge during his tenure. He has written or joined in three times as many dissents in death penalty cases, and apparently it is unimportant how gruesome or egregious the facts or how clear the evidence of guilt," end quote.

Dianne Feinstein

Dianne Feinstein

Is this a fair representation of your record? For example, have you written or joined in three time as many dissents in death penalty cases as any other Missouri Supreme Court justice?

Ronnie White

Senator, I don't have the numbers in front of me, but I don't believe that that's correct.

Dianne Feinstein

Well, I do have the numbers. Let me just find them here. I have the percentages.

Dianne Feinstein

I think a review of the record shows that you supported death penalty convictions slightly more than the average Missouri Supreme Court justice. You voted over 70 percent of the time to uphold death sentences, and I believe you wrote several majority opinions enforcing a death penalty verdict.

Dianne Feinstein

The percentage of votes for a reversal of a death sentence by Missouri Supreme Court justices were: Thomas -- and I recognize he is deceased-47 percent; White, 29 percent; Holstein, 25 percent; Price, 24 percent; Benton, 24 percent; and Limbaugh, 22 percent. Would you concur with those figures?

Ronnie White

Again, Senator, I don't know the numbers, and some of the members of the court have been there a little bit longer than me. So the numbers may be skewed a bit, but I would say this. When judging a case, I try to look at the facts of the case and the standard of law that we must apply, and I try not to run around with a scorecard to determine how many times I am on this side or that side. And in every case that comes before me for a determination, I give my best on that case, and if the numbers show that, then that's what the numbers show.

Dianne Feinstein

Let me speak about the Kinder case for a moment. In the floor statement on October the 5th, Senator Ashcroft said the following, "Ronnie White wrote a dissent saying that Missouri v. Kinder was contaminated by a racial bias of the trial judge because that trial judge had indicated that he opposed affirmative action and had switched parties based on that." Would you describe that as a fair reading of your dissent in Kinder?

Ronnie White

No, it's not, Senator, but to get an understanding of my dissent, I think it is proper to read the statement that the trial judge made, and if I may?

Dianne Feinstein

Please do.

Ronnie White

In a pertinent part, the judge said, "The truth is that I have noticed in recent years that the Democratic Party places too much emphasis on representing minorities such as homosexuals, people who don't want to work, and people with a skin that is any color other but white. While minorities needed to be represented, of course, I believe the time has come for us to place much more emphasis and concern on the hard-working taxpayers in this country," and what I said or noted in the opinion was that conduct suggesting racial bias undermines the credibility of the judicial system and opens the integrity of the judicial system to question and I stand by that opinion today.

Dianne Feinstein

I believe my time is up. Thank you, Mr. Chairman.

Patrick Leahy

The Senator from Arizona, Senator Kyl.

Jon Kyl

I was prepared to refer to you as "Justice White." That is the way it is done in my State as well, but, Judge White, it is a pleasure to have you here today.

Jon Kyl

Ronnie White

First of all, I commend you for the success that you have achieved, especially given the humble background that you spoke of. You can rightly be proud of your appointment to the Missouri Supreme Court. I think it says something both about you, and would you also agree about the man who appointed you, the late Governor Mel Carnahan?

Jon Kyl

Ronnie White

Would it not also say anything about the Governor who appointed the first African-American to the Missouri Court of Appeals?

Jon Kyl

Ronnie White

Possible, yes.

Jon Kyl

And, of course, you know that is Governor John Ashcroft, the first Governor in the history of Missouri, most of whom, by the way, were Democrats, to appoint an African- American to a higher court in Missouri.

Jon Kyl

Let me say that I can understand why you are disappointed. I think you have great reason to be disappointed, perhaps even bitterly so, about your defeat in the U.S. Senate, and I personally regret that the vote had to be taken. No one enjoys voting against someone, especially someone who I am sure is trying his or her best to do the best job they can in their office, and I am sure that is precisely what motivates you.

Jon Kyl

I did want to clear up just one thing. Senator Leahy said something about the opposition coming out of the Republican caucus, and, of course, Republicans did vote against your nomination.

Jon Kyl

We ordinarily don't discuss what is said within our caucuses, our policy luncheons, but let me just allude to this one occasion. We usually devote a couple of minutes to business that is going to be coming up in the afternoon or the next day or two, and John Ashcroft rose and made very brief remarks. They were subdued. He said, "I am not asking any of you to follow my lead, but since one of the votes is going to be on a Missouri judge, I felt I should at least explain to you why I will be voting no, so as not to blind-side any of you," and he spoke very briefly, primarily focussing on the impact of many law enforcement people in the State of Missouri who based their opposition on what some of them suggested were decisions that suggested that you were soft on crime. That is an appellation, by the way, that I don't think should be used.

Jon Kyl

No one ever mentioned your race. In fact, I know that many of my colleagues when they voted were not aware of your race until after the vote.

Jon Kyl

I just want to conclude by saying I think your record can be fairly debated. I am very troubled by some of the things that you have written, but I assure you that I do not believe that you ever intended to misapply the law and I believe that is Senator Ashcroft's belief as well.

Ronnie White

I understand the Senator from Wisconsin does not have questions.

Patrick Leahy

Patrick Leahy

Then we will go to the senior Senator from New York.

Chuck Schumer

Thank you, Mr. Chairman, and thank you, Judge White.

Chuck Schumer

You are obviously a soft-spoken man, a man of judicious temperament. You can see by your statement and the way you offered it. You are not trying to make points here. You are just telling what happened. You don't even really seem like a politician.

Chuck Schumer

So I would like to just ask you how you felt when for the first time you heard that your nomination was being called into question because you were called soft on crime, pro-criminal.

Ronnie White

I was obviously disappointed and upset about the labeling and the name-calling, but what troubled me the most was the lack of opportunity to come in and at least talk with the Senators about my record and about the cases that were called into question and have the kind of discussion that we are having here this morning where I would be given a chance to speak and you would be given a chance to ask me questions. That was the most troubling aspect of that.

Chuck Schumer

During your career in Missouri, had that been a common charge used against you when you ran for judge, when you ran for other offices in Missouri?

Ronnie White

No, Senator, that was not. I had never heard the term "pro-criminal," "criminal bent," until I heard them on the floor of the Senate on August of -- on October 4, 1999.

Chuck Schumer

Let me ask you to comment on something I feel very strongly about here. I don't believe Senator Ashcroft is a racist, and he has appointed African-American judges and things like that, but I do feel this. I feel that given America's long and tortured history in terms of race relations that we have to be ever so careful about applying a double standard, a double standard which has been -- well, it was the signature of Jim Crow and everything that has happened since the days of slavery -- it is OK for whites to be treated one way, but blacks are treated a different way, and I don't think this is a philosophical issue. I think every person at this table from the most conservative to the most liberal would agree that America must fight hard to avoid a double standard.

Chuck Schumer

What I find so troubling about your nomination is not that someone would call you soft on crime whether it is true or not. That is a legitimate issue to debate when we debate judges, and my views on criminal justice are decidedly moderate, but rather that a different standard might be used in your nomination than for others who were not of your race. If you look at the number of judges that Senator Ashcroft supported who at least when you talk to some of the people who prepared the documentation for all those judges were clearly more liberal on criminal justice and other issues than you, but who were white, and then were voted for without any raising of any questions, it is extremely troubling. To me, it show real insensitivity to our long and tortured history of racial relations.

Chuck Schumer

Would you care to comment on that thought? Am I off base here? Do you think it applied to you? Tell me what you think.

Ronnie White

Senator, first let me say I don't think Senator Ashcroft is a racist, and I wouldn't attempt to comment on what is in his mind or what is in his heart, but the answer I would give to your question is this. There was a lot of outrage about my nomination being rejected, and particularly in the African-American community, and the reason for that outrage, I believe, is that when you have an African-American judge, African-Americans see that as one more step toward true equality.

Ronnie White

So, when that judge rules, whatever way it is, there shouldn't be any hint of racism or any underhanded dealing because there is a sense that that person gives it their best. So that would be my explanation for the outrage behind my rejection.

Chuck Schumer

Do you think there was a feeling that a double standard was used in opposing your nomination?

Ronnie White

One final question because this whole episode is terribly difficult, I think, for so many of us on both sides of the aisle here. Over the past few days, Senator Ashcroft has spoken at length about his concern for civil rights and his sensitivity to issues of race. Does anything he has said in the last few days here at this hearing give you reassurance?

Chuck Schumer

Ronnie White

Senator, I have not really watched his -- his testimony, but I would just say to you again, I do believe he seriously distorted my record and I am here this morning to attempt to try to set that record straight.

Chuck Schumer

Patrick Leahy

The senior Senator from Ohio, Senator DeWine.

Patrick Leahy

Michael DeWine

Mr. Chairman, thank you very much.

Michael DeWine

Judge White, thank you very much for coming in. We very much appreciate your testimony, and, Mr. Chairman, I do not have any questions.

Ronnie White

Patrick Leahy

Let's see. The Senator from Wisconsin, Senator Feingold, was at another hearing, I believe, and he is now here. We will turn to the Senator from Wisconsin.

Patrick Leahy

Russell Feingold

Mr. Chairman, let me just apologize to the witness. I had to introduce the Governor of the State of Wisconsin to the Finance Committee, as did Senator Kohl, and I recognize the tremendous importance of your testimony which I will read and then perhaps ask questions later.

Patrick Leahy

I have noted for the record that a number of Senators, both Republicans and Democrats, are at a series of confirmation hearings. That is why they are not here.

Patrick Leahy

Patrick Leahy

We would then go to the senior Senator from Illinois, Senator Durbin.

Dick Durbin

Thank you very much, Mr. Chairman, and, Judge White, thank you for joining us.

Dick Durbin

I only wish that every member of the Senate could hear your testimony. I only wish that they could hear your life story, even those who voted against you, and reflect on the decision that they made. I hope that they would ask themselves whether the person that they would be listening to is the same person that was described by John Ashcroft on the floor of the U.S. Senate.

Dick Durbin

We have been asked by President-elect Bush to look into the hearts of his nominees, and during the last 2 days, we have entered the testimony of Senator John Ashcroft about what is really in his heart.

Dick Durbin

Over and over again, Senator Ashcroft told us that as Attorney General, he would be results-oriented. He would not be results-oriented. He would be law-oriented. In your case, he was clearly results-oriented and not law-oriented because, had he looked at the law and how you applied it, he never would have said the words he did about you on the floor of the U.S. Senate.

Dick Durbin

I live in Illinois, a neighbor of Missouri, and those of us who followed the Senatorial race know what was going on there in this situation. There was a result that Senator Ashcroft was seeking. He was trying to create a death penalty issue in the Missouri Senatorial campaign. Why? Because the late Governor Mel Carnahan had spared a man in death row after a personal appeal by the Pope when he had visited St. Louis, and you, Judge White, were the victim of this political calculation. Your hard work through a lifetime, your good name, and your reputation were cast aside after the political calculation was made.

Dick Durbin

That, to me, is a reflection on the heart of the man who wants to be our Attorney General. This position in the Cabinet, more than any other, is entrusted with the testimony of protecting the civil rights of Americans. We count on the law not only being there, but people who will implement and enforce the law with a good heart.

Dick Durbin

We have a President who will be sworn in, in a few hours, who has pledged to unite us and not divide us, and as we listen to your testimony and as Senator after Senator apologizes for what happened to you and your good name, is there any doubt that what happened was divisive, divisive for you and your family and for America?

Dick Durbin

Yesterday, when I asked Senator Ashcroft about this, he said, well, the law enforcement organizations were against Ronnie White, soft on crime, not strong on the death penalty. Judge White, when it came to the support of law enforcement organizations for your appointment to the Federal district court, what is the record?

Ronnie White

That is not true that I was opposed to law enforcement.

Ronnie White

Senator Durbin, I have a brother-in-law who is a police officer in St. Louis. I have a cousin who is a police officer in St. Louis. I have served on boards and commissions with police officers in the St. Louis community, and I also, when I was city counselor for the city of St. Louis, was the lawyer for the St. Louis City Police Department and we defended police officers. As a judge, all I have tried to do is to apply the law as best I could and the way I saw it.

Dick Durbin

Judge White, I have noted with interest during the course of this hearing that even though the grizzly details of the Johnson case and the Kinder case were brought out yesterday, nobody has mentioned them while you are sitting here. No one from the other side has brought them up. Those are grizzly details in the Johnson case, and I want you to explain why you dissented in that case.

Dick Durbin

This man brutally murdered -- apparently murdered four or five people, including a sheriff in execution style, and you dissented in the question of whether or not the death penalty should have been imposed. Please explain.

Ronnie White

The details in any murder case are grizzly. Death in a normal consequence is really bad, but the cornerstone of our criminal justice system is a right to a fair trial, and all I was trying to get to in the Johnson case was the lawyers' ineffective assistance to the defendant possibly affected the jury's determination in guilt and sentencing.

Ronnie White

I did not say that these facts were not awful. I did not say that family didn't suffer. All I was trying to do was to ensure that Johnson had a fair trial, and in my mind, the only way you can have that is to have competent counsel and then I think the consequences will flow from there.

Dick Durbin

Did you call for his release in your dissent?

Ronnie White

No, I did not. I just urged a retrial, but I think that impression was created that since I voted to reverse in the case that Johnson would be released, and if I might say further, when we rule on a death case in Missouri, that case goes to the Federal court system for a review. And in writing my dissenting opinion, I was writing to the next level of review to say, look, there is a difference of opinion on my court about how to apply the standard in Strickland v. Washington, help us, tell us who is right, am I right or are they right, and that was all I was trying to get to.

Dick Durbin

Let me close by saying this. I am very sorry for what Senator Ashcroft did to you and your reputation, and I join with my colleagues in apologizing for what happened to you before the U.S. Senate.

Ronnie White

Dick Durbin

The Senator from Alabama, Senator Sessions.

Patrick Leahy

Jeff Sessions

Thank you, Mr. Chairman, and, Judge White, we are glad to have you here. I think it is good for this Committee to allow you to share your thoughts and concerns about the way the process was for you.

Jeff Sessions

I agree with you that this gaggle of blowhards sitting in this Senate are not particularly good at making their decisions. I have seen a lot of decisions come out of this Committee that I haven't been happy with, but it is a system and they do vote and that is it and we have to live with it, and you are blessed, I think, with the ability to remain as the Justice of the Supreme Court of Missouri, a great and august position. I hope that you will enjoy it, and I hope that you would not succumb to, as some suggested, bitterness or ill feelings. You look like you are not.

Ronnie White

No, Senator Sessions, I am not bitter at all.

Jeff Sessions

You have got a great career. You have had a good career, and we validate that.

Jeff Sessions

I have been a prosecutor for 15-plus years. I feel strongly about those issues. John Ashcroft was Attorney General for quite a number of years. John was Attorney General and I was a prosecutor during the time this country began to refigure what we were doing about criminal justice.

Jeff Sessions

It seemed more and more that the law schools were teaching that this was almost like a game. A judge was sort of like an umpire or a referee, and he threw the flag for minor or insignificant offenses by the police calling for retrial so defendants could be released.

Jeff Sessions

There is some intellectual support still alive today for that. People still believe in that, that we are insufficiently protective today since we have changed. I don't. I believe firmly that we need to focus on guilt and innocence, and we ought not to be so focussed on errors that had little or no impact on the outcome of the trial, and for a lot of reasons, I think that was -- and I have looked at a number of your opinions, and I think your views may be consistent with quite a body of intellectual and liberal thought on crime in America. It is not what I would want.

Jeff Sessions

John Ashcroft voted for 26 of 27 judges that were African- American that President Clinton put up. His problem was you were his judge, and his sheriffs, 77 of them, had opposed you. A chiefs of police association opposed you, prosecutors.

Jeff Sessions

I feel an obligation. Implicit in my election was that I would watch to make sure that the Federal judges that are appointed were going to be fair to the police officers and sheriffs and prosecutors I served with. Do you think you could understand John's approach that may have been a factor in his thinking?

Ronnie White

I can understand his approach, but I can't understand his distortion of my record.

Jeff Sessions

Well, you know, it is a difference of opinion. Like in the Kinder case that was alleged here, this judge made some insensitive, maybe at best, remarks. Perhaps this judge may have even been subject to censure. Was he ever censured to your knowledge, subject to censure?

Ronnie White

No, he was not censured.

Jeff Sessions

But what troubled me was you reversed his decision in saying that actual fairness of the trial was not sufficient, that even though there was no showing that he made a single error that biased against the defendant, you voted to reverse his case. That troubled me.

Jeff Sessions

Would you like to comment on that?

Ronnie White

Yes, Senator, because in my mind his comments created a sense of judicial bias from the outset. When he made these statements about 5 or 6 days before trial, then he goes into court and says I can be a fair and impartial judge, and I will say to you, as you know, a judge is a judge all the time, and you don't stop being a judge in once instance and being a judge in the next.

Jeff Sessions

Well, I would disagree. I believe that if the judge conducted a fair trial, there was not one hint that he did anything to bias that case, the case should not be reversed.

Jeff Sessions

I was aware of some of the programs that were set up. They were set up, put up a sign, "Drug dealers going to be stopped ahead," and what they found was drug dealers would stop and make U-turns in the street and things like that and police would stop them, and they wouldn't just search their car based on that. They would make inquiries and sometimes ask the occupant of the car if they could search the car.

Jeff Sessions

You dissented, I believe, that procedure was unfair because the highway traveller would be tricked. That troubled me.

Jeff Sessions

Well, I see my time is up. I will not get into the Johnson case except to say those were, would you not agree, some skilled attorneys that were defending him? Those were retained attorneys with Mr. Eng who had 10 years, was a leader in the criminal -- 10 years of practice, teachers criminal law. Another lawyer, Mr. Bly, was an active litigator with having won awards and done some teaching. It was a pretty good group of retained attorneys, was it not?

Ronnie White

Well, one of the lawyers was basically a solo lawyer, and I think that the public defenders in Missouri have substantial experience, probably more experience than private attorneys in handling death penalty cases because they handle many more.

Jeff Sessions

Well, Mr. Eng teaches criminal practice skill courses for the Criminal Law Section of the Missouri Bar Association. He received an award from the Criminal Defense Bar, the Host Award from the Missouri Association of Criminal Defense Lawyers. He was a member of the Association of Criminal Defense Lawyers for 14 years, sat on the board of directors, internally served as vice president of the Missouri Association of Criminal Defense Lawyers. This was a quality civil attorney. He was a good partner, I would suggest, plus a third attorney, Christine Carpenter, who apparently has good skills.

Patrick Leahy

Could I --

Jeff Sessions

I don't think they were --

Ronnie White

And that is why these errors don't make any sense. I mean, you had all that skill and record there when all he had to do was pick up the phone, contact the witnesses, and try to figure it out.

Jeff Sessions

My view was they just simply put on a defense that was proven unfounded, and the jury found --

Patrick Leahy

I don't mean to -- we have gone considerably over time, and I am trying, again, at the request of Senators on both sides -- I have been trying to keep on time.

Patrick Leahy

The Senator from Wisconsin, Senator Feingold.

Russell Feingold

Justice White, again, thanks for being here. I now have had an opportunity to read your statement. I am told by my colleagues that hearing it is even more moving than certainly simply reading it is, and I want to join Senator Durbin in the apology.

Russell Feingold

Ronnie White

The rejection of your nomination was unjustified, and I particularly regret that it was an entirely partisan vote. I think we were all shocked, and the more I, of course, read about some of the facts, it is a regrettable moment in the Senate, and at a minimum, I am glad that you have an opportunity here to get the record straight on some of these points.

Russell Feingold

Russell Feingold

In fact, just as a brief response to Senator Sessions' characterization of the comments of the trial judge in the Kinder case, the notion that these remarks here are insensitive at best is something I would take issue with. A direct contrasting of minorities with the hardworking taxpayers in this country to me is beyond insensitive, and I simply wish to make on the record the remark I think that these were shocking remarks for a trial judge to make.

Jeff Sessions

Mr. Chairman, may I correct myself?

Patrick Leahy

I think insensitive -- I meant to say insensitive at worst. They were very bad comments that --

Jeff Sessions

Russell Feingold

Excuse me. I should have said -- I stand corrected.

Jeff Sessions

-- Were subject to possible censure, and I did misspeak.

Russell Feingold

You said they were insensitive at worst. I think they go --

Jeff Sessions

I didn't say that, and I apologize --

Russell Feingold

I think they go well beyond that.

Jeff Sessions

-- For being inaccurate.

Russell Feingold

Patrick Leahy

My apology for getting that wrong.

Russell Feingold

Russell Feingold

I find it hard to imagine these words simply being called insensitive at worst. The hardworking people of Wisconsin found them to be far beyond insensitive.

Russell Feingold

Mr. Chairman, one item that I assume you would like to set the record straight on is that in opposing your nomination to the Federal bench, Senator Ashcroft was highly critical of your dissent in a case called State v. DeMass. This was a Fourth Amendment case that the Missouri Supreme Court decided in 1996, and you authored the dissenting opinion. The case addressed the constitutionality of drug interdiction checkpoints in two Missouri counties. Police officers dressed in camouflage were stopping motorists in the dark of the night at the end of a lonely exit ramp and looking for evidence to allow them to search the vehicles for drugs.

Russell Feingold

The majority of the Missouri Supreme Court decided that these stops were constitutional, but you dissented. You agreed with you and your colleagues that trafficking in illegal drugs is a national problem of the most severe kind, and you agreed that traffic stops such as these could be conducted in a reasonable way, but you found that these particular checkpoint operations were not conducted in a reasonable way and were, therefore, unconstitutional.

Russell Feingold

Then, just a few months ago, a case with facts very similar to the Missouri case made its way to the United States Supreme Court. In the City of Indianapolis v. Edmond, the U.S. Supreme Court found that drug interdiction checkpoints like the ones that were upheld by the Missouri Supreme Court are unconstitutional. The Edmond case makes clear that the police may not set up roadblocks in the hope of interdicting drugs or detecting some other criminal wrongdoing.

Russell Feingold

In fact, the United States went even farther in protecting the rights of motorists than you were prepared to go in your dissent, but I don't think anybody really considers the Rehnquist court to be pro-criminal.

Russell Feingold

In light of the recent U.S. Supreme Court decision, would you agree that the majority decision in DeMass would now be considered bad law?

Ronnie White

That is correct, Senator. In fact, I was vindicated by the United States Supreme Court by their decision when they said those kind of checkpoints were unconstitutional.

Russell Feingold

Thank you again, and thank you, Mr. Chairman.

Patrick Leahy

Thank you, Senator Feingold.

Patrick Leahy

The Senator from Kansas, Senator Brownback.

Sam Brownback

Thank you, Mr. Chairman, and welcome, Justice White. We are delighted to have you here at the Committee.

Sam Brownback

I heard your opening statement. I was watching it, and it was very powerful, a real success story of pulling yourself up by the bootstraps in very difficult circumstances and conditions, and I applaud that. I applaud what you have attained and what you are doing and what you continue to do. I appreciate as well your willingness to come here and testify in a difficult circumstance and condition that we have got as we are trying to review and to look at one of the former members of our body making a move from a legislative branch to an executive branch position from one that makes decisions voting on judges to one on enforcing the law, and there are different qualifications and criteria that people look at in those sorts of shifts.

Sam Brownback

John Ashcroft was in your State and was Attorney General for two terms in your State. There are no allegations that he didn't enforce the law and bring it forth with equal justice, head of the Attorneys General Association, National Attorneys General Association in enforcing the law. So, while there are points, I think, that have been validly made, I think we are looking at now what would a person do in enforcing the law and would they do that equally and fairly.

Sam Brownback

While I think you raised legitimate points about your confirmation, there were also concerns that were being raised at that time about support for you from the law enforcement community, or lack of support, really, thereof. Here is a key area where the law enforcement community needed to have comfort as well in your abilities as a judge in that particular condition.

Sam Brownback

So I appreciate very much your background of words and the information you bring in front of us. There were challenges, legitimate ones, I think at that time, ones that can be questioned, but when you look at a lifetime appointment to the bench, you really weigh those carefully and look at them cautiously when considering that lifetime appointment, and I have no doubt that you are going to continue in a great role in public service, and the difficult circumstances. After today, we will all move on forward, and you will serve well and serve with distinction. But those questions being raised at that time on a lifetime appointment, I think, caused a number of people pause.

Sam Brownback

Thank you for being here today.

Sam Brownback

Mr. Chairman, I have no questions.

Patrick Leahy

I will put into the record an editorial in the St. Louis Post Dispatch in which they quote Charles Blackmark, a retired Supreme Court judge who called Senator Ashcroft's attack on Judge White "tampering with the judiciary."

Patrick Leahy

Patrick Leahy

I will put in the record from the National Journal an article by Stuart Taylor in which he says that Senator Ashcroft smeared Judge Ronnie White for his own partisan political purposes.

Patrick Leahy

I will also put into the record a strong letter of endorsement from the Chief of Police of the St. Louis Metropolitan Police Department for Judge White, during his confirmation.

Patrick Leahy

I will also put a letter in the record from the Missouri State Lodge of the Fraternal Order of Police which indicated on behalf of 4,500 law enforcement officers in Missouri, that they view Justice White's record as "one of a jurist whose record on the death penalty has been far more supportive of the rights of victims than the rights of criminals."

Patrick Leahy

Judge White, I listened to the Senators here. I feel, as Senator Durbin and Senator Kennedy and so many others have said, that this was not a question of your rulings on cases, rulings which appear to be well in the mainstream. In fact, your ruling in one case presupposed or predated a similar ruling made by the conservative U.S. Supreme Court, the Rehnquist court. Rather, you became a political pawn.

Patrick Leahy

Now, I disagreed with Senator Ashcroft on the floor of the Senate when this happened. I disagreed with him in our personal meetings, and I have disagreed with him in these hearings. I won't go into that further, but I still disagree with him even more so, having heard you.

Patrick Leahy

You have sterling credentials. You have had a career that is exemplary by any standards and one that so many people, white or black, would want to emulate, but I think your career was besmirched. I believe your career was besmirched not on a question of your legal abilities because your legal abilities are golden. They have been proven. But they were besmirched to aid Senator Ashcroft's political fortunes. That, sir, is wrong. I am sorry to have seen that happen. It will be an issue in his confirmation, as will others, but as a U.S. Senator, it disturbs me greatly.

Ronnie White

If I could just add one comment myself.

Orrin G. Hatch

Orrin G. Hatch

Judge White, I called you "Justice White." As far as I am concerned, that is good enough.

Ronnie White

That is fine.

Orrin G. Hatch

Both are good.

Orrin G. Hatch

But let me just say I think you have been more gracious here toward Senator Ashcroft than some of our colleagues, and I just want to compliment you for it --

Ronnie White

-- And let you know that I respect you for it, and I appreciate you being here and accept your testimony.

Orrin G. Hatch

Orrin G. Hatch

That is it.

Ronnie White

Thank you, Senator Hatch.

Patrick Leahy

There are no further questions. The Committee will --

Arlen Specter

Are we going to have a second round?

Patrick Leahy

I'm sorry.

Arlen Specter

Patrick Leahy

I just asked the ranking member, and he said he did not want any more.

Patrick Leahy

If there are no further questions, the Committee will stand in recess for a few minutes to allow the staff to set up the tables for the next panel.

Patrick Leahy

I do not want to start until the ranking member is here. So we will also use this time as a chance for the Committee room to get in order.

Patrick Leahy

Patrick Leahy

I should note while we are waiting for Senator Hatch to come that I had a good discussion this morning with Congressman Hulshof and cleared up any misunderstanding I might have had about his letter to me, and I appreciate the letter. I don't know if the Congressman is here right now, but I appreciate that conversation. It was very helpful.

Patrick Leahy

Now that Senator Hatch is here, we will begin. We have a large and distinguished panel. We have Hon. Edward "Chip" Robertson, a lawyer and former Justice of the Missouri Supreme Court; Ms. Harriet Woods, whom I know, the former Lieutenant Governor of Missouri; Jerry Hunter, a lawyer and former Labor Secretary of Missouri; Mr. Frank Susman, a lawyer from Gallop, Johnson, and Neuman, in St. Louis; Ms. Kate Michelman who is the president of NARAL here in Washington; Ms. Gloria Feldt who is the president of Planned Parenthood Federation of America; Ms. Marcia Greenberger who is the co-president of the National Women's Law Center, Washington, D.C.; Ms. Collene Campbell, member of Memory of Victims Everywhere, from one of the prettiest areas there is, San Juan Capistrano, California. If I have misstated the names of the organizations, trust me, we will get it right before the day is over.

Patrick Leahy

What I am going to do, each witness will testify. Because there are so many, we are going to have to run the clock pretty strictly. Your whole statement, of course, will be part of the record. In my experience, if there is something you really want us to remember the most, you may want to emphasize that, but I will leave it any way you want to go.

Patrick Leahy

So, Judge Robertson, we will start with you and move from my right to the left.

Edward Robertson, Jr.

Mr. Chairman and members of the Committee, my name is Edward D. Robertson, Jr. I am a partner in the law firm of Bartimus, Frickleton, Robertson & Obetz, and we have offices in Kansas City and Jefferson City, Missouri.

Edward Robertson, Jr.

Edward Robertson, Jr.

I appear before you today to speak on behalf of John Ashcroft's nomination to become Attorney General of the United States.

Patrick Leahy

Would you pull the microphone just a little bit closer, please, Mr. Robertson?

Edward Robertson, Jr.

I do so from the vantage point of one who served as the Deputy Attorney General of Missouri from 1981 until 1985 at a time when John Ashcroft was Attorney General.

Edward Robertson, Jr.

Edward Robertson, Jr.

On March 4, 1801, Thomas Jefferson addressed the people of the United States in his first inaugural address. He acknowledged the rancor that marked his election, but he stated every difference of opinion is not a difference of principle.

Edward Robertson, Jr.

If press accounts are accurate, it appears that some of the members of the Senate may disagree with John Ashcroft's opinions. I trust, however, that none of you disagrees with the principle upon which he will found every decision he makes as Attorney General of the United States, should you confirm him. That principle requires that the rule of law established by Congress and interpreted by courts will prevail, must prevail, as he carries out his duties as Attorney General.

Edward Robertson, Jr.

As Attorney General of Missouri, John Ashcroft issued official opinions, concluding, for example, that evangelical religious materials could not be distributed at public school buildings in Missouri, and you have heard a number of those opinions discussed previously in this hearing, and I will not list them for you now.

Edward Robertson, Jr.

If one believes Senator Ashcroft's critics, each of these opinions should have reached a different result, but they did not for one overriding reason. Then-Attorney General Ashcroft let settled law control the directives and advice he gave Missouri government.

Edward Robertson, Jr.

Now, I do not intend to take much more of the Committee's time with these prepared remarks as there are so many of us, and I am sure you have questions for all of us.

Edward Robertson, Jr.

I have known John Ashcroft for nearly a quarter of a century. If we could boil him down to one single essence, we would find a man for whom his word is both a symbol and a revelation of his deepest values. This means one thing to me, one thing to which nearly a quarter of a century has failed to provide a single contrary example. When John Ashcroft gives his word, he will do what he says, period.

Edward Robertson, Jr.

Those who are with me at this table have opinions, some of them, that differ from Senator Ashcroft's opinions, but they, like the members of this Committee, of the Senate, and every American, can count on John Ashcroft's word. When he tells you that he will follow the settled law, he will follow the law.

Edward Robertson, Jr.

I appear before you today to speak on behalf of John Ashcroft's nomination to become Attorney General of the United States. I do so from vantage point of one who served as the Deputy Attorney General of Missouri from 1981 until 1985, when John Ashcroft was Attorney General.

Edward Robertson, Jr.

Edward Robertson, Jr.

On March 4, 1801, Thomas Jefferson addressed the people of the United States in his first inaugural address. Acknowledging the rancor that marked his election, Jefferson reminded the American people that "every difference of opinion is not a difference of principal."

Edward Robertson, Jr.

If press accounts are accurate, it appears that some of the members of the Senate may disagree with John Ashcroft's opinions. I trust, however, that none of you disagrees with the principal upon which he will found every decision he makes as Attorney General of the United States. That principal requires that the rule of law established by the Congress and interpreted by the courts will prevail, must prevail, as he carries out his duties as Attorney General.

Edward Robertson, Jr.

How do I speak so confidently? I have had the privilege of sitting with John Ashcroft as decisions were made regarding legal policy for the state of Missouri. He never -- I repeat never -- allowed his opinions about what the law ought to be to overrule what the law was as he gave direction to Missouri government.

Edward Robertson, Jr.

As Attorney General of Missouri John Ashcroft issued official opinions concluding that evangelical religious materials could not be distributed at public school buildings in Missouri; that public funds could not be used solely for the purpose of transporting pupils from parochial schools to the public school; that Missouri law prohibited public school personnel from teaching children at sectarian schools; that the strict separation of church and state mandated by the Missouri constitution prohibited public school districts in Missouri from using federal funds available to them under the Elementary and Secondary Education Act of 1965 to provide services to a parochial schools; that hospital records relating to abortion procedures remain closed.

Edward Robertson, Jr.

If one believes Senator Ashcroft's critics, each of these opinions should have reached a different result. But they did not for one overriding reason. Then-Attorney General Ashcroft let settled law control the directives and advice he gave Missouri government.

Edward Robertson, Jr.

I do not intend to take much more of the Committee's time with these prepared remarks.

Edward Robertson, Jr.

I have known John Ashcroft for nearly a quarter of a century. If we could boil John down to a single essence, we would find a man for whom his word is both a symbol and revelation of his deepest values. This means one thing to me -- one thing to which nearly a quarter of a century has failed to provide a single contrary example -- when John Ashcroft gives his word, he will do what he says. Period.

Edward Robertson, Jr.

Those who are with me at this table have opinions that differ from Senator Ashcroft's opinions -- but they, like the members of this Committee, of the Senate and every American, can count on his word. When he says he will follow the settled law, he will follow the law.

Patrick Leahy

Mr. Chairman, Senator Hatch, members of the Committee, I am here to provide information I hope will help you to decide whether to confirm John Ashcroft as Attorney General, and I have to say, "Which John Ashcroft?"

Patrick Leahy

Ms. Woods?

Harriet Woods

Harriet Woods

I have listened to these hearings and heard him say that he will conform to Roe v. Wade, he will support mandatory trigger locks.

Harriet Woods

You understand that in Missouri, over and over, he has shown an absolute dedication to the overturn of Roe v. Wade, campaigned for concealed weapons. I will try to sample in my very brief remarks a number of cases where I feel that he has pushed particular agenda or ideological values rather than administer justice in an evenhanded manner, but I also have to ask is this -- in his testimony, he was proud of having set records for appointing women and minorities. He had an abysmal record in appointing women, so much so that he was cited for having the lowest number of executive appointments of any Governor in this country, one, and he never reached any more in his whole term.

Harriet Woods

He appointed exactly 10 women out of 121 judicial appointments and didn't appoint the first one until he was more than halfway through his first term as a result of really heavy publicity, even on the front page of the newspapers, condemning him in the record of Missouri.

Harriet Woods

For the minority appointments, I am sure other people will talk about them, but when he says he created a record, I have to point out that the two previous Governors -- one had appointed no black judges, and the other, three. So that he set a record of eight, I really applaud, but the next administration appointed 30. So we have to put this all in perspective.

Harriet Woods

Governors love to say, well, he could only appoint people as they were presented by the panels. They never say that the Governors appoint the members of the commission, at least two out of the five, and in at least one case, Governor Ashcroft appointed a minister on the commission in Kansas City who was quoted in the newspaper as saying he didn't believe women belonged on the bench. You would not be surprised that not many women applied. So this is a lot more complicated.

Harriet Woods

You know, I respect Governor Ashcroft -- Senator Ashcroft. He has lifted his hand and said he swears to uphold the law. He swore to uphold the law in Missouri, also.

Harriet Woods

In 1985, when both of us were sworn in, one as Governor and one as Lieutenant Governor, the odd couple, of course -- I am a Democrat, he is a Republican -- he said to me, "I could find useful things for you to do, but in return, you will have to give up the authority to serve as the Governor in my absence when I leave the State." I was really stunned. I said, "Well, why? I certainly would do nothing in any way to misuse that power. I want to cooperate with you. I have every motive to cooperate with you. I can't unilaterally give up a constitutional duty." He said, "That's not the way I read the law," and he left the State without notifying me or the Secretary of State.

Harriet Woods

He didn't at that time contest this in the courts. He didn't say let's get this law changed. Ultimately, it was ridiculous, and the only recourse I had was clearly to go to the press, and I said so. Finally, they slipped a note under my door that he was leaving the State, and we had no further problem, but he raised the same thing with my successor, Mel Carnahan, poisoning the atmosphere with him, ultimately did go to court. The court said his authority did extend when he was outside the State, but the judge added he really ought to work with the Lieutenant Governor to better serve the people of the State.

Harriet Woods

I am sure you will hear about a 1978 case in which he chose to under the antitrust laws to prosecute the National Organization of Women who were conducting boycotts of the State for failing to ratify the ERA. He was turned down at the district court. He was turned down at the appellate court. The Supreme Court rejected it. It is very unclear to me whether the fact that he opposed the ERA was more a motivation than whether he was really properly using the laws of the State to uphold the law.

Harriet Woods

In 1989, very quickly, after the Webster decision, he appointed a task force on women's health care and children in which he named only people who were opposed to abortion. The leaders of the legislature were so outraged that they said they wouldn't participate, how could this reflect all the interests of the State, and this was not the only case where he had done something like this.

Harriet Woods

In 1999, distinguished Republican, a former Supreme Court Justice, Charles Blackmark, who said in a footnote in a law journal article about Senator Ashcroft's hearings on judicial activism, "I wrote Senator Ashcroft several times requesting information on the hearings and offering to testify to provide a written statement. I received no reply. The witness list seemed to consist of individuals whose views harmonized with those of the Senator."

Harriet Woods

The case has been cited that he followed the law in not having Bibles distributed in the public schools. What they do not say is that Missouri became, I think, the final State that provided no licensing for church-run day care centers, even when they very carefully amended it to say we will not interfere with what is said there, but there has to be some minimum health and safety for children. John Ashcroft was protecting those church-run schools and said that to the very end.

Harriet Woods

I have obviously no more time. I hope that if there are any questions particularly about the myths about why the 2001 election -- or overriding that, the racial issues in Missouri, which I think are so important, I would be glad to respond.

Harriet Woods

Many Missourians were shocked and dismayed when they learned of the nomination of Senator John Ashcroft for U. S. Attorney General. Americans elsewhere, including some former Senate colleagues, probably know him less well than we do. They need to be informed about instances where he used public office to push particular ideological views rather than administer justice in an evenhanded manner. They need to learn more about his temperament and values.

Harriet Woods

I observed Senator Ashcroft fairly closely as a state senator and as lieutenant governor for four of the eight years John Ashcroft served as Missouri's governor. (We were the "odd couple" -- a liberal Democrat and a conservative Republican.) President-Elect Bush described him as "a man of deep conviction" who would be dedicated to"the impartial administration of justice." He is indeed a man of deep conviction, but in Missouri, he increasingly has been seen as an extremist who can be ruthless for political ends. Former U. S. Senator Tom Eagleton reacted to the nomination by saying: "John Danforth would have been my first choice. John Ashcroft would have been my last choice."

Harriet Woods

I'm constantly asked to give any example when he administered the law differently because of ideology. In 1989, the Supreme Court decision in the case of Webster v. Reproductive Health opened up regulation of abortion to the states. Governor Ashcroft immediately named a "Task Force for Mothers and Unborn Children" to come up with recommendations. He was quoted in the press as setting for his ultimate goal prohibiting all abortions. He named only the most dedicated pro- life advocates. The Speaker and Senate Pro Tern of the General Assembly -- both of whom had voted pro-life -- publicly protested. They said the task force would be "slanted to one side" and would not provide "the necessary balance that reflects the feelings of the state" nor all necessary expertise to look at health issues for mothers and children. They refused to participate because the governor insisted that all task force members oppose abortion. The proposal turned into controversy. Whatever benefit a task force might have had was lost and the group produced little that was usable.

Harriet Woods

This kind of insistence on rigid conformity to preset values may please his supporters, but it makes Missourians very uncomfortable. It should concern the U.S. Senate. It was under Governor Ashcrofts watch in 1989 that state troopers were deployed to prevent a father from removing his daughter to another state for further medical opinions on whether to maintain her on life support. The father had a court order in hand issued by a judge after a full hearing that included supportive testimony from doctors and a Catholic ethicist. Yet he was denied the right even to visit his child alone. "Right to Life" forces had pressed the state to keep the young woman alive even though doctors described her as being in a vegetative state. They insisted the state enforce their views on the family.

Harriet Woods

Missouri obliged. The family was dragged through emotional hell for years until the 1992 election brought in a new administration that declared the state should stop interfering.

Harriet Woods

Governor Ashcroft also was willing to flout the law when he didn't like its interpretation. In 1985, shortly after Senator Ashcroft and I were separately elected to the top two statewide offices, he called me to a private meeting and said he would be glad to give me useful things to do, but in exchange I must agree not to serve as interim governor in his absence from the state. This struck me as political paranoia. It suggested I was not to be trusted. I assured him I had no intention of misusing executive power in his absence and wanted very much to work with him. But I could not accede to his unilateral decision. The Missouri constitution was very clear. Not only does it provide that the lieutenant governor assumes office upon death or disability of the governor, but a separate provision provides for the lieutenant governor to act as governor on the governor's "absence from the state."

Harriet Woods

Governor Ashcroft said he did not accept that interpretation; he withdrew his offer to include me in state activities, and shortly afterward left the state without notifying either my office or that of the Secretary of State as always had been customary. The situation was ridiculous; if he thought the provision no longer necessary, the proper course would be to propose a change in the law, or seek a court ruling. As tension increased, we hired our own counsel, warning that we would go to the media if necessary. At the last minute before his next trip, a proper notice was slipped under our door, and there were no further problems. But he renewed the confrontation with Mel Carnahan, who succeeded me as lieutenant governor, poisoning the relationship. This time, he did seek the opinion of the state courts. The judge affirmed the governor's powers, but recommended that he should use his discretion to work with the lieutenant governor to keep state business running smoothly. That didn't happen until he left office.

Harriet Woods

That story may seem far removed from weighty issues of civil rights, abortion and church-state relationships that will be debated in this nomination, but Senator Ashcroft's behavior raises worrisome questions about his temperament as the leader of a department that inevitably is going to be involved in controversy. What will be his willingness to follow a law he considers wrong, or one that he says he is following but interprets differently than prevailing view?

Harriet Woods

In 1978, when John Ashcroft was Missouri Attorney General, he sued the National Organization for Women because it conducted a boycott of Missouri (and other states) for falling to ratify the Equal Rights Amendment. What was notable about this use of the anti-trust laws to control speech was his persistence in appealing all the way to the Supreme Court, using major state resources, even when he lost in the federal district court and the 8 th U. S. Circuit Court of Appeals, and even though legal scholars discouraged the effort. His spokesperson denied he acted because of his personal opposition to the Equal Rights Amendment, but it must be noted that in 1977, Janet Ashcroft appeared to testify against ratification of the ERA at a hearing in the Missouri Senate, a very conspicuous action for the wife of the attorney general of the state.

Harriet Woods

Senator Ashcroft views government and public service as vehicles for achieving certain ideologically shaped goals. He is a man of deep convictions. I respect him for that. But conviction that fails to respect the convictions of others can be dangerous. He has stated that "You can legislate morality." This is not a majority viewpoint in Missouri. Missourians expressed concern in 1999 when Senator Ashcroft gave the commencement speech and received an honorary degree at Bob Jones University. Many were embarassed when he compounded the problem by denying he was aware of certain intolerant positions of that institution. His 1999 Christmas card listed the Bob Jones appearance as a highlight of his year. Other politicians have spoken at this university, but it is difficult to conceive that someone bragging about such a connection would be named to head the Justice Department. Especially not when nerves are so raw over alleged voting irregularities involving minorities.

Harriet Woods

In 1988, while he was governor, John Ashcroft was one of only two members of a 40 member federal commission studying the plight of minorities in America who refused to sign the panel's final report. Members included former Presidents Carter and Ford and Coretta Scott King. Ashcroft was quoted as saying he believed the findings were too negative. I cannot judge his reasons for abstaining, but his action in isolating himself from majority opinion is bound to set off alarms among those most likely to need a Justice Department ready to intervene on their behalf. It's not enough to say that one will enforce the letter of the law; the spirit can be a major determinant of whether anything really happens.

Harriet Woods

Governor Ashcroft and I were two of the three members of Missouri's Board of Public Buildings which approves construction contracts. It was obvious in dealing with the proposals that minority and female contractors were not getting an adequate share of business from the state, despite existence of many small contractors seeking to participate. It seemed worthwhile to look for ways to improve the situation. Governor Ashcroft was not interested. So long as we met minimum requirements, he was satisfied. The lieutenant governor's office finally acted on its own, refusing to sign one contract that had bundled together many small jobs until the contractor agreed to institute a minority training effort.

Harriet Woods

It sometimes seems, listening to conflicting testimony, that there are two John Ashcrofts. I understand this. Senator Ashcroft was unfailingly polite in our personal exchanges. He maintained an amiable, open countenance with the public and his peers, but he could be fierce when angered and had a reputation for "getting even" with those who crossed him. A sense of righteousness and ordained destiny can make it hard to brook criticism; On at least one occasion. the governor lashed out with such anger at a critic that he had to be dragged away. I mention this not to engage in personal attack, but because this temperament spilled over into his conduct when opposing presidential nominees. The senators surely are aware that too often this turned into unnecessary vilification and petty picking at minor items, rather than focusing on issues of competence. (Judge Margaret Morrow, Dr. David Satcher, James Hormel, Dr. Henry Foster, Clarence Sundram, among others).

Harriet Woods

It is unfortunate that Governor Ashcroft has antagonized a majority of African-Americans and women. Despite recent claims, Governor Ashcroft did not have an outstanding appointment record in this area. In eight years, out of 121 judicial appointments, he appointed 12 women, or 10%, and 8 African-Americans, or 6.6%. His successor would triple those percentages in short order. It must also be noted that Governor Ashcroft did not appoint his first woman to the appellate court until September 1987, more than halfway through his first term, and only then after a major onslaught of negative publicity about his poor record. As for women in appointed executive positions, in 1986 Governor Ashcroft tied with George Wallace of Alabama in having the fewest women in his cabinet -- just one. He never increased that number.

Harriet Woods

The issue isn't just appointments. Women and minorities have been disproportionately at odds with Senator Ashcroft because those rising from their midst often have policy differences with him, which shouldn't be surprising given that their life experiences are so different. He is wedded to the values of the Assembly of God church and has little tolerance for these differences. He is not a racist in the usual sense. It's just that he is so locked into the rightness of his views that he sees spokespersons for those who differ as enemies to be destroyed rather than opponents to be debated. Senator Ashcroft is constantly described as a man of integrity, but what does that mean if it leaves him free to use government office to destroy the reputation of others for political expedience.

Harriet Woods

That is what many Missourians believe he did to Ronnie White. It wasn't just African-Americans who were offended. He blocked a highly respected Missouri Supreme Court judge from a federal position through deliberate misrepresentation and character assassination in order to create a law and order issue for his race against Mel Carnahan. He played the race card with court-ordered desegregation to advance his prospects to become governor. Someone rooted in religious values should set an example. Instead, his actions worsened race relations in a state that continues to struggle to improve interracial understanding. They diminished respect for justice and the courts at a time when more than ever we need to restore confidence in the law and the courts. They lowered the tone of debate between candidates and political parties. John Ashcroft polarized Missourians; his appointment will do the same for the country.

Harriet Woods

Missourians gave Senator Ashcroft a majority of their votes many times. Clearly he was a popular politician. Attitudes began to change in the past couple of years as he moved farther and farther out of the mainstream. The common wisdom about the 2000 senatorial race in Missouri is that it turned on a sympathy vote for a dead governor. Not so simple. Mel Carnahan won because Senator Ashcroft had alienated moderate Republicans and independents long before the tragedy occurred. They rejected views and actions they considered to be increasingly extreme. There was a clear choice between Carnahan values and Ashcroft positions. He had lost the support of Missourians.

Harriet Woods

So it boils down to this. What does it really mean when a nominee with this record promises to enforce the law? In 1999, Senator Ashcroft campaigned in Missouri for a losing statewide initiative to permit carrying of concealed weapons. He told us over and over that he wants to make abortion a crime even in the case of rape and incest. He did his utmost to impede family planning and availability of contraceptives. He has blocked confirmation of qualified moderate judges. What priorities will he choose, what court cases will he support; what judicial nominees will he promote? Will he fairly serve all of us in this most important position? Senator Ashcroft says he will. His record in Missouri suggests otherwise.

Harriet Woods

Senator Ashcroft has a long record of service in public office. It would be appropriate for the new administration to make use of his abilities. But not as attorney general of the United States.

Patrick Leahy

Mr. Chairman, Senator Leahy, Ranking Member Senator Hatch, and members of the Senate Judiciary Committee, it is indeed a pleasure and honor for me to be here today to testify in support of President-elect George W. Bush's nomination of John Ashcroft to be Attorney General of the United States.

Patrick Leahy

Mr. Hunter?

Jerry Hunter

Jerry Hunter

Based upon my personal knowledge and relationship with Senator Ashcroft, I believe he is immanently qualified to hold the position of Attorney General. I have known Senator Ashcroft since 1983, and I have had the pleasure to work with him as an advisor, a subordinate during the period I was director of the Missouri Department of Labor from 1986 to 1989, and as a friend and supporter.

Jerry Hunter

During that period that I have known Senator Ashcroft, I have always known him to be a person of the utmost integrity and an individual who is concerned about others. Contrary to statements which you have just recently heard and will hear from others during this hearing, I do not believe Senator Ashcroft is insensitive to minorities in this society, and I think the record which has been laid out by Senator Ashcroft clearly contradicts these allegations.

Jerry Hunter

Like President-elect George W. Bush, Senator Ashcroft followed a policy of affirmative access and inclusiveness during his service to the State of Missouri as Attorney General, his two terms as Governor, and his one term in the U.S. Senate.

Jerry Hunter

During the 8 years that Senator Ashcroft was Attorney General for the State of Missouri, he recruited and hired minority lawyers. During his tenure as Governor, he appointed blacks to numerous boards and commissions, and my good friend, Ms. Woods, referred to that, but I would say to you on a personal note, Senator Ashcroft went out of his way to find African-Americans to consider for appointments.

Jerry Hunter

In fact, it was shortly after then-Governor Ashcroft took office in January 1985 that I received a call from one of the Governor's aides who advised me that the Governor wanted me to help him to locate minorities that he could consider for appointments to various State boards and commissions and positions in State government.

Jerry Hunter

At the time, I was employed in private industry in St. Louis as a corporate attorney. I certainly was pleased that the Governor had asked me to assist his administration in helping him to locate and recruit African-Americans that he could consider for appointments.

Jerry Hunter

During his tenure as Governor, John Ashcroft appointed a record number of minorities to State boards and commissions, including many boards and commissions which had previously had no minority representation. Governor Ashcroft also appointed eight African-Americans to State court judgeships during his tenure, including the first African-American to serve on a State appellate court in the State of Missouri and the first African-American to serve as a State court judge in St. Louis County.

Jerry Hunter

Governor Ashcroft did not stop with these appointments. He approved the appointment of the first African-Americans to serve as administrative law judges for the Missouri Division of Worker's Compensation in St. Louis City, St. Louis County, and Kansas City.

Jerry Hunter

When Governor Ashcroft's term ended in 1993, January 1993, he had appointed more African-Americans to State court judgeships than any previous Governor in the history of the State of Missouri.

Jerry Hunter

Governor Ashcroft was also bipartisan in his appointment of State court judges. He appointed Republicans, Democrats, and Independents. One of Governor Ashcroft's black appointees in St. Louis was appointed notwithstanding the fact that he was not a Republican and that he was on a panel with a well-known white Republican.

Jerry Hunter

Of the nine panels of nominees for State court judgeships which included at least one African-American, Governor Ashcroft appointed eight black judges from those panels, and in appointing African-Americans to the State court bench, Governor Ashcroft did not have any litmus test and none of his appointees to the State court bench, be they black or white, his or her position on abortion or any other specific issue, and I know this because I talked to many of the black nominees prior to their interview and talked to many of the black nominees after their interview.

Jerry Hunter

Governor Ashcroft's appointment, in fact, of the first black to serve on the bench in St. Louis County was so well received that the Mound City Bar Association of St. Louis, one of the oldest black bar associations in this country, sent him a letter commending him.

Jerry Hunter

As an individual who was personally involved in advising Governor Ashcroft on appointments from 1985 through 1992 and as one who served as the director of the Missouri Department of Labor under Governor Ashcroft from 1986 through 1989, I can unequivocally state that the regard which he was held in the minority community during his tenure as Governor was the highest regard.

Jerry Hunter

Mr. Ashcroft's record of affirmative access and inclusiveness also includes his support of and the later signing of legislation to establish a State holiday in honor of Dr. Martin Luther King during 1986. Since 15 years have passed since the passage of the legislation in Missouri which created the holiday in honor of Dr. King, many individuals here today probably have forgotten the opposition which existed in the legislature to the establishment of Dr. King's birthday as a State holiday. The King bill had been introduced in the legislature for numerous years, and many of those years the bill never got out of Committee. In most years, it never -- it certainly didn't pass either house of the legislature. It was not until 1986, after then-Governor Ashcroft announced his support for the King holiday bill, that the legislation sailed through the legislature and was ultimately signed by Ashcroft. And following the conclusion of the ceremony where Governor Ashcroft signed the King holiday bill, I went into the Governor's office and privately thanked him for signing the bill. And Governor Ashcroft responded to me by saying, "Jerry, you do not have to thank me; it was the right thing to do."

Jerry Hunter

Because of his sensitivity to the need for role models from the minority community, then-Governor Ashcroft established an award in honor of African-American educator George Washington Carver. He also signed legislation making ragtime composer Scott Joplin's house the first historic site honoring an African-American in the State of Missouri.

Jerry Hunter

Mr. Chairman, I see my time is up. I would like to make one final point and would be happy to respond to any questions.

Jerry Hunter

When Governor Ashcroft sought re-election in the State of Missouri as Governor during 1988, he was endorsed by the Kansas City Call newspaper, which is a well-respected black weekly newspaper in the State of Missouri. And in that election, he received over 64 percent of the vote in his re-election campaign for Governor.

Jerry Hunter

Thank you, Mr. Chairman, and I would be happy to respond to any questions.

Jerry Hunter

Statement of Jerry M. Hunter, Esq., Former Labor Secretary of Missouri, St. Louis, Missouri Mr. Chairman, Senator Leahy, Ranking Member, Senator Hatch, and Members of the Senate Judiciary Committee, it is a pleasure and indeed an honor for me to be here today to testify in support of President- elect George W. Bush's nomination of John David Ashcroft to be Attorney General of the United States. Based upon my personal knowledge of and relationship with Senator Ashcroft, I believe that he is eminently qualified to hold the position of Attorney General. I have known Senator Ashcroft since 1983 and I have had the pleasure to work with him as an advisor, a subordinate during the period that I was Director of the Missouri Department of Labor from 1986 to 1989, and as a friend and supporter. During the time that I have known Senator Ashcroft, I have always known him to be a person of the utmost integrity and an individual who is very concerned about others. Contrary to statements which you have heard or may hear during these hearings that Senator Ashcroft is somehow insensitive to the involvement of African-Americans and other minorities in the American political process and our society, I can state to you that there is no support for any such contentions. In fact, the evidence is totally to the contrary. affirmative access

Jerry Hunter

Like President-elect George W. Bush, Mr. Ashcroft followed a policy of affirmative access and inclusiveness during his service to the State of Missouri as an elected official which included two terms as Attorney General, two terms as Governor, and one six year term as United States Senator. During the eight years that Mr. Ashcroft was Attorney General for the State of Missouri, he recruited and hired minority lawyers including lawyers of African-American descent. Mr. Ashcroft continued his practice of affirmative access and inclusiveness after he was elected Governor of the State of Missouri during 1984. Unlike Mr. Ashcroft's critics who rely upon hearsay, innuendo, and unsubstantiated allegations to the effect that he is somehow insensitive to minorities, I rely upon personal knowledge which I gained as a result of working directly with then Governor Ashcroft to help him recruit minorities including African-Americans for possible appointment to positions in state government. The fact that Mr. Ashcroft took affirmative steps to seek out African-Americans for positions in state government make the charges that he is insensitive to racial matters that more outrageous.

Jerry Hunter

It was shortly after Governor Ashcroft took office in January, 1985 that I received a call from one of the Governor's aides who advised me that the Governor wanted me to help him to locate qualified minorities that he could consider for appointment to various state boards and commissions and positions in state government. At the time, I was employed in private industry in St. Louis as a corporate attorney. I certainly was pleased that the Governor had asked me to assist his administration in helping him to locate and recruit African-Americans that he could consider for appointments. During his tenure as Governor, former Governor Ashcroft appointed a record number of minorities to state boards and commissions including many boards and commissions which previously had no minority representation. Governor Ashcroft also appointed eight African-Americans to state court judgeships during his tenure as Governor including Fernando Gaitan who was appointed as a Judge on the Missouri Court of Appeals for the Western District of Missouri. Mr. Gaitan was the first African-American to serve on an Appellate Court in the State of Missouri. Governor Ashcroft also appointed Sandra Farragut-Hemphill as a Judge on the St. Louis County Circuit Court. Judge Hemphill was the first African-American to serve as a state court Judge in St. Louis County. Governor Ashcroft did not stop with these appointments. He approved the appointment of the first African-Americans to serve as Administrative Law Judges for the Missouri Division of Worker's Compensation in St. Louis City, St. Louis County and Kansas City. When Governor Ashcroft's second term as Governor ended in January, 1993, he had appointed more African- Americans as state court Judges than any previous Governor in the history of the State of Missouri. Governor Ashcroft was also bipartisan in his appointment of state court Judges. He appointed Republicans, Democrats and Independents. One of Governor Ashcroft's black appointees, Judge Charles Shaw, was appointed notwithstanding the fact that he was on a panel of nominees which included a well-known white Republican. Of the nine panels of nominees for state court judgeships which included at least one African-American, Governor Ashcroft appointed eight black Judges from those panels. And in appointing African-Americans to the state court bench, Governor Ashcroft did not have any litmus test and none of his appointees to the state court bench, white or black, were asked his or her position on abortion or any other specific issue.

Jerry Hunter

Governor Ashcroft's record of appointing African-Americans to state court judgeship was so outstanding that the Mound City Bar Association of St. Louis, one of the oldest African-American Bar Associations in the country, commended him in a letter dated April 1, 1991 as follows: "Your appointment of [African-American] attorney Hemphill demonstrated your sensitivity, not only to professional qualifications, but also to the genuine need to have a bench that is as diverse as the population it serves. . . .

Jerry Hunter

As an individual who was personally involved in advising Governor Ashcroft on appointments from 1985 through 1992 and as one who served as the Director of the Missouri Department of Labor under Governor Ashcroft from 1986 through 1989, I can unequivocally state that the letter sent to then Governor Ashcroft by the Mound City Bar during April, 1991 reflects the high regard that he was viewed by the minority community during his two terms as Governor.

Jerry Hunter

Mr. Ashcroft's record of affirmative access and inclusiveness also includes his support of and the later signing of legislation to establish a State Holiday in honor of Dr. Martin Luther King during 1986. Since fifteen years have passed since the passage of the legislation in Missouri which created a Holiday in honor of Dr. King, many individuals have forgotten the opposition which existed in the legislature to the establishment of a King Holiday in Missouri prior to 1986. The King Holiday bill had been introduced in the Missouri legislature for the previous ten years or more. In many of these years, the legislation never got out of committee. Prior to 1986, the King Holiday bill did not pass either house of the legislature. It was only in 1986 after then Governor Ashcroft announced that he supported the King Holiday bill that the legislation sailed through the legislature and was ultimately signed by Ashcroft. Following the conclusion of the ceremony where Governor Ashcroft signed the King Holiday bill, I went into the Governor's office and privately thanked him for supporting and signing the legislation. Governor Ashcroft responded to me by saying "Jerry, you do not have to thank me; it was the right thing to do."

Jerry Hunter

Because of his sensitivity to the need for role models from the minority community, then Governor Ashcroft established an award in honor of African-American educator George Washington Carver. He also signed the legislation establishing ragtime composer Scott Joplin's house as Missouri's first and only historic site honoring an African- American. And when Lincoln University, a historically black University which was founded by African-American Union soldiers after the Civil War, became financially-strapped as a result of mismanagement, Governor Ashcroft led the fight to save Lincoln University and he opposed efforts to close the University or merge it with the University of Missouri system which efforts involved many influential individuals in central Missouri including a significant number of members of the Missouri legislature.

Jerry Hunter

As Governor, Mr. Ashcroft also signed Missouri's first hate crimes bill and fought to protect victims' rights. He also made education reform a priority during his tenure as Governor. Mr. Ashcroft also consulted and met with members of the black clergy in St. Louis and Kansas City. I attended these meetings with Governor Ashcroft where he sought to obtain the input of the black clergy on the policies and programs of state government which impacted the community as a whole and the black community specifically.

Jerry Hunter

As Senator, Mr. Ashcroft supported 26 of the 28 African-Americans nominated to the Federal Courts by President Clinton. All 26 nominees that Senator Ashcroft supported were confirmed by the United States Senate. Of the two nominees that Senator Ashcroft did not support, one nomination was withdrawn and the other was defeated by the Senate.

Jerry Hunter

When he sought reelection as Governor during 1988, Mr. Ashcroft was endorsed by the Kansas City Call, a well respected black weekly newspaper in Kansas City, Missouri. Mr. Ashcroft went on to win reelection as Governor with 64% of the vote. a case of revisionism

Jerry Hunter

Many of those who now denounce Senator Ashcroft as allegedly being insensitive to racial issues expressed no such view during Senator Ashcroft's tenure as Missouri Governor. It is not Senator Ashcroft who has changed his views; it is his critics who have done so. And in spite of his record of having appointed an unprecedented number of African- Americans to positions in state government and having supported legislation at the state and federal levels to recognize achievement by citizens of African-American descent, he is being unfairly labeled as being insensitive to racial issues without any support for such allegation. By placing such a label on Senator Ashcroft, his opponents hope to attack the very character traits which qualify him to be Attorney General and to somehow place him outside of the mainstream of American political thought. It is indeed sad and unfortunate that Senator Ashcroft's critics have decided that they would rather destroy his reputation as being a person of the highest integrity and someone who is honest and fair minded rather than having an intelligent discussion on the issues which they disagree with him including the size and the role of the federal government in issuing mandates to the states and the American people in the areas of education, civil rights, crime prevention and many other facets of American life. As Mr. Ashcroft's record during his years as Missouri Governor clearly shows, he is not only not insensitive to matters of race, he appointed more blacks to positions in Missouri state government than any of his democratic predecessors.

Jerry Hunter

As far as the issue of Senator Ashcroft's willingness and commitment to enforcing the law is concerned, during the period that I was Director of the Missouri Department of Labor and Industrial Relations, Governor Ashcroft not only did not discourage our efforts to enforce the various laws which came under the jurisdiction of the Department, but rather he encouraged reasonable enforcement of the laws which included the prohibition against employment discrimination, the wage and hour laws, and health and safety requirements. Shortly before I assumed the position of Director of the Department of Labor, Governor Ashcroft removed several managers in the Division of Labor Standards because they failed to process requests for wage determinations in an expeditious fashion and failed to set the prevailing wages in a number of counties, which resulted in the delay of the commencement of construction on numerous publicly funded projects.

Jerry Hunter

During my tenure with the Department, Governor Ashcroft's budget usually included a request for increased funding for each of the Divisions within the Department including the Missouri Commission on Human Rights, which responsibility included enforcing Missouri laws prohibiting employment and housing discrimination.

Jerry Hunter

As an African-American who has had the opportunity to know and work with Senator Ashcroft, I certainly hope that this Committee will take the time to learn firsthand about Mr. Ashcroft's commitment to affirmative access and inclusion of African-Americans and other minorities in all facets of American life. If this Committee and the United States Senate give him the opportunity, I believe Senator Ashcroft will do an outstanding job as Attorney General and will enforce the laws of the United States without regard to his personal beliefs.

Patrick Leahy

Thank you, Mr. Hunter, and you are correct, you did go over time. I am trying to be as flexible as I can, but there are a lot of other witnesses, and we hope that by late tomorrow night we might have this hearing finished.

Orrin G. Hatch

We are hoping by late tonight to get this hearing over, and there is no reason --

Patrick Leahy

I think they told all Federal employees to go home at 2 o'clock this afternoon because President-elect Bush and Ricky Martin are having a party down the Mall.

Orrin G. Hatch

We know how hard you work, Senator, and we know you are willing to --

Patrick Leahy

But I don't want to interfere with the President-elect and Ricky Martin.

Orrin G. Hatch

Well, I do if it is going to put us into tomorrow --

Patrick Leahy

You think the show here is better than Ricky?

Orrin G. Hatch

This is a good show.

Patrick Leahy

All right. Mr. Susman, please go ahead.

Frank Susman

If you would be kind enough to reset the clock, I will --

Patrick Leahy

I am looking at the clock myself, and I am saying -- here we go. Well, it is almost there. Go ahead.

Patrick Leahy

STATEMENT OF FRANK SUSMAN, ESQ., ATTORNEY, GALLOP, JOHNSON, AND

Frank Susman

Mr. Chairman, Senator Hatch, members of the Committee, I appreciate your invitation and this opportunity to share my thoughts on the pending nomination of John Ashcroft as Attorney General of the United States.

Frank Susman

Up front, let me state I strongly oppose this nomination. I am a practicing attorney in Missouri, with a long history of handling matters involving health care, particularly as they relate to women, contraception, and abortion.

Frank Susman

Although a minor part of my law practice, I have been counsel in at least six cases involving these issues before the United States Supreme Court, three additional cases before the Missouri Supreme Court, as well as numerous other cases in courts throughout the United States.

Frank Susman

Domestically, the Cabinet position of Attorney General is the most powerful of any. The Attorney General has the ability to shape the future of the Federal judiciary through his or her involvement in judicial appointments to the 641 district court positions, the 179 circuit courts of appeal positions, and the nine Supreme Court positions.

Frank Susman

The Attorney General does much more than merely enforce the laws of this land. The Attorney General is able to influence legislation merely by the persuasive powers of the office. It is myopic to believe that the office possesses no discretion in interpreting the laws of the land, particularly on legal issues neither previously nor clearly decided by the Supreme Court. The Attorney General has the discretion to select which laws are to be given priority in enforcement through control of the purse and the assignment of other resources.

Frank Susman

Based upon the nominee's consistent public statements and public actions over many years, I have no doubt that he would use the powers of the office to shape the judiciary and the law to his own personal agenda at the great expense of women, minorities, and our current body of constitutional and statutory law.

Frank Susman

History is, indeed, a reliable precursor of the future.

Frank Susman

While Missouri's Attorney General, the nominee issued a legal opinion seeking to undermine the State's Nursing Practice Act. He opined that the taking of medical histories, the giving of information about, and the dispensing of condoms, IUDs, and oral contraceptives, the performance of breast exams, pelvic exams, and Pap smears, the testing for sexually transmitted diseases, and the providing of counseling and community education by nurse practitioners constituted the criminal act of the unauthorized practice of medicine.

Frank Susman

Each of these services were at the time routine health care practices provided by Missouri nurses for many years and, in fact, were being provided by nurses within the State's own county health departments.

Frank Susman

This opinion by the nominee provided the impetus for the State's Board of Registration for the Healing Arts to threaten the plaintiff physicians and nurses with a show-cause order as to why criminal charges should not be brought against them.

Frank Susman

Implementation of the nominee's opinion would have eliminated the cost-effective and readily available delivery of these essential services to indigent women who often utilize county health departments as their primary health care provider and would have shut and bolted the door to all poor women who relied upon these services as their only means to control their fertility.

Frank Susman

In Sermchief, a unanimous Missouri Supreme Court struck down the nominee's interpretation of the Nursing Practice Act.

Frank Susman

During the nominee's term as Governor of Missouri, family planning funding was limited to the lowest amount necessary to achieve matching Federal Medicaid funds. And during this same period of time, teenage pregnancies in Missouri increased.

Frank Susman

The nominee vigorously opposed the Snowe-Reid amendment to the Federal Health Benefits Plan, seeking to extend Federal health care coverage to include contraceptives.

Frank Susman

The nominee cosponsored unsuccessful Congressional legislation seeking to impose upon all Americans a Congressional finding that "life begins at conception," which would have eliminated the availability of many common forms of contraception and legislation requiring parental consent for minors to receive contraception.

Frank Susman

Throughout his political career and at every opportunity, the nominee has sought to limit access to and require parental consent for not only abortion but for contraception as well, although parental consent has never been suggested as a prerequisite for a minor to engage in sexual intercourse or to bear children. Although the nominee has continually sought to give these decisional rights of a minor to her parents, he has never suggested that these same parents have any financial or other responsibility for the minor's child once born.

Frank Susman

The nominee's involvement with Bob Jones University, with the nominations of Dr. Henry Foster and of Dr. David Satcher as Surgeon General, with the nominations of Ronnie White as Federal district court judge, his tireless opposition to court- ordered desegregation plans, his support of school vouchers and of school prayer, all portray a person of deep personal convictions -- an admirable quality in other contexts.

Frank Susman

But when these convictions are starkly at odds with existing law and public sentiment in this country, then a person with such convictions should not be asked to ignore them in an effort to carry out faithfully the oath of office. Nor should we ever place any nominee in such an untenable dilemma.

Frank Susman

In conclusion, I implore you to send a message to our President-elect: to submit to this Committee a nominee for Attorney General in whom an overwhelming majority of our citizens can admire, take comfort, and have confidence in to administer the office of Attorney General in a fair and just manner for all Americans, rather than an individual who has devoted his political career opposing the laws of this land on a wide variety of issues affecting the everyday lives and the will of the people.

Frank Susman

Statement of Frank Susman, Esq., Gallop, Johnson, and Neuman, L.C., St. Louis, Missouri Mr. Chairman and members of the committee. I appreciate your invitation and this opportunity to share my thoughts on the pending nomination of John Ashcroft as Attorney General of the United States.

Frank Susman

Frank Susman

Although a minor part of my law practice, I have been counsel in at least six cases involving these issues before the United States Supreme Court, three additional cases before .the Missouri Supreme Court, as well as numerous other cases in courts throughout the United States.

Frank Susman

Domestically, the cabinet position of attorney general is the most powerful of any. The Attorney General has the ability to shape the future of the federal judiciary through his or her involvement in judicial appointments to the 641 District Court positions, the 179 Circuit Courts of Appeal positions and the nine Supreme Court positions.

Frank Susman

The Attorney General does much more than merely enforce the laws of the land. The Attorney General is able to influence legislation merely by the persuasive powers of the office. It is myopic to believe that the office possesses no discretion in interpreting the laws of this land, particularly on legal issues neither previously nor clearly decided by the Supreme Court. The Attorney General has the discretion to select which laws are to be given priority in enforcement, through control of the purse and the assignment of other resources.

Frank Susman

Based upon the nominee's consistent public statements and public actions over many years, I have no doubts that he would use the powers of the office to shape the judiciary and the law to his own personal agenda, at the great expense of women, minorities and our current body of constitutional and statutory law.

Frank Susman

History is, indeed, a reliable precursor of the future.

Frank Susman

While Missouri's Attorney General, the nominee issued a legal opinion seeking to undermine the state's nursing practice act. (No. 32, Jan. 2, 1980). He opined that the taking of medical histories, the giving of information about and the dispensing of condoms, LuAs and oral contraceptives, the performance of breast exams, pelvic exams and pap smears, the testing for sexually transmitted diseases and the providing of counseling and community education, by nurse practitioners, constituted the criminal act of the unauthorized practice of medicine.

Frank Susman

This Opinion by the nominee provided the impetus for the State's Board of Registration for the Healing Arts to threaten the plaintiff physicians and nurses with a show cause order as to why criminal charges should not be brought against them.

Frank Susman

Implementation of the nominee's Opinion would have eliminated the cost-effective and readily available delivery of these essential services to indigent women, who often utilize county health departments as their primary health care provider, and would have shut and bolted the door to poor women who relied upon these services as their only means to control their fertility.

Frank Susman

In Sermchief, an unanimous Missouri Supreme Court struck down the nominee's interpretation of the Nursing Practice Act.

Frank Susman

During the nominee's term as Governor of Missouri, family planning funding was limited to the lowest amount necessary to achieve matching federal Medicaid funds. During this same period, teenage pregnancies in Missouri increased.

Frank Susman

The nominee vigorously opposed the Snowe/Reid amendment to the federal health benefits plan, seeking to extend federal health care coverage to include contraceptives.

Frank Susman

The nominee co-sponsored unsuccessful congressional legislation seeking to impose upon all Americans a congressional finding that "life begins at conception," which would have eliminated the availability of many common forms of contraception and legislation requiring parental consent for minors to receive contraception.

Frank Susman

Throughout his political career and at every opportunity, the nominee has sought to limit access to and to require parental consent for not only abortion, but for contraception, as well; although parental consent has never been suggested as a prerequisite for a minor to engage in sexual intercourse or to bear children. Although the nominee has continually sought to give these decisional rights of a minor to her parents, he has never suggested that these same parents have any financial or other responsibility for the minor's child once born.

Frank Susman

The nominee's involvement with Bob Jones University, with the nominations of Dr. Henry Foster and of Dr. David Sacher as Surgeon General, with the nomination of Ronnie White as Federal District Court Judge, his tireless opposition to court ordered desegregation plans, his support of school vouchers and of school prayer, all portray a person of deep personal convictions -- an admirable quality in other contexts.

Frank Susman

But when those convictions are starkly at odds with existing law and public sentiment in this country, then a person with such convictions should not be asked to ignore them in an effort to carry out faithfully the oath of office. Nor should we ever place any nominee in such an untenable dilemma.

Frank Susman

I implore you to send a message to our president-elect -- to submit to this committee a nominee for Attorney General, in whom an overwhelming majority of our citizens can admire, take comfort and have confidence in to administer the office of Attorney General in a fair and just manner for all Americans; rather than an individual who has devoted his political career opposing the laws of this land on a wide variety of issues affecting the everyday lives and will of the people.

Patrick Leahy

Ms. Michelman, we welcome you to this Committee. You have been a witness here before, and we appreciate having you here today.

Patrick Leahy

STATEMENT OF KATE MICHELMAN, PRESIDENT, NARAL, WASHINGTON, D.C.

Kate Michelman

Thank you, Mr. Chairman, Senator Hatch, and members of the Committee. I appreciate the invitation to testify --

Patrick Leahy

Pull the microphone just a little bit closer, would you, please?

Kate Michelman

Sorry.

Kate Michelman

A decade ago, I spoke here of my experience as a struggling young mother of three, again pregnant by the husband who had abandoned my daughters and me, as a woman forced to endure humiliating interrogation by a hospital Committee, confronted with laws that made abortion a crime.

Kate Michelman

Since then I have met thousands and thousands of women who depend on this Nation's right to choose and the survivors of those women who died because they did not have that right.

Kate Michelman

I have also spoken to women facing legal hurdles today. Desperate women call NARAL to ask whether the laws that restrict and stigmatize abortion forbid them from obtaining the services they need. Women without the money to diaper their children; women who cannot travel for hours to get an abortion; young women who fear they will be battered if they tell their parents they are pregnant.

Kate Michelman

The right to safe, legal abortion hangs by a slender thread. That threat could be cut by just one Supreme Court Justice or by an Attorney General not committed to its protection. The women NARAL represents all across this country cannot afford to have that thread severed.

Kate Michelman

I will discuss our opposition to this nomination in the context of three dominant themes:

Kate Michelman

First, Senators must choose between John Ashcroft's unmitigated quarter-century attack on a women's right to choose and his promise to this Committee to preserve Roe v. Wade, the basis of the right he has long sought to undermine.

Kate Michelman

Second, this nomination is so far outside the bounds of our National consensus regarding fundamental civil rights that it must be rejected, notwithstanding the President's prerogatives and senatorial courtesy.

Kate Michelman

And, third, John Ashcroft's record speaks volumes. It shows that he would use the vast powers of the Department of Justice to bend the law and undermine the very freedoms it took American women a century to secure. His promise to enforce existing law is obvious and necessary, but is woefully insufficient.

Kate Michelman

John Ashcroft's record includes the following, and I will note some of those that have already been mentioned:

Kate Michelman

He cosponsored the Human Life Act which would have virtually outlawed all abortions and common contraceptive methods like birth control pills.

Kate Michelman

In his support for banning abortion procedures, he has called preserving the woman's life "rhetorical nonsense."

Kate Michelman

As Attorney General, he tried to stop nurses from providing contraceptive services, an effort the State Supreme Court unanimously rejected.

Kate Michelman

As Governor, he supported a bill outlawing abortion for 18 different reasons, almost all abortions, and women would have had to have signed an affidavit revealing the most intimate details of their personal lives.

Kate Michelman

As Attorney General, Ashcroft testified in favor of Federal legislation declaring that life begins at conception, which would have allowed States to prosecute abortion as murder. Throughout his career, Ashcroft had worked to undermine, not respect, existing law.

Kate Michelman

Senator Ashcroft's goal has been to criminalize abortion, even in the cases of incest and rape, and to limit the availability of contraceptives. He has used every single tool of public office to attack women's reproductive rights. Merely committing not to roll back our constitutional freedoms is not enough. To be confirmed, his record and his goals should be consistent with this commitment.

Kate Michelman

Senator Ashcroft's convenient conversion on the road to confirmation is simply implausible. His conversion has been timely, but it will be too late for millions of American women if he does not live up to his surprising promise to protect their right to choose.

Kate Michelman

Now, I know that when a colleague sits before you, the confirmation process is particularly sensitive. And within reasonable bounds, a President indeed should be able to pick his closest advisers. But those bounds have been exceeded here. It would be unthinkable to confirm an Attorney General who built a career on dismantling Brown v. Board of Education. By the same standard, by the very same standard, a person should be disqualified if he has sought over decades and by repeated official acts to annul the rights of women. A career built on attempts to repeal established constitutional rights is not only sufficient reason to vote against John Ashcroft's nomination, it should compel rejection.

Kate Michelman

John Ashcroft has told you that he will enforce the law. I did not expect him to say anything different. Remember, though, the duties of the Attorney General are far greater. He will advise the President on new legal initiatives. He will be charge with interpreting the law. He will be a strong voice in the appointment of every United States attorney and Federal judge. The Solicitor General will work under his discretion, and I believe that Senator Ashcroft will have a very keen eye to the opportunities new cases and new statutes present.

Kate Michelman

May I say that NARAL expected the President to nominate a conservative, but John Ashcroft's record is indeed uncompromising. Millions of women who stand with me cannot afford the risk of your giving John Ashcroft the awesome powers of the Attorney General.

Kate Michelman

I have spent the decade since that testimony fighting for the rights of women, traveling around our country. I have spent these years meeting thousands of women who depend on this nation's constitutional protection for a woman's right to choose and the survivors of those women who lost their lives because they didn't have that right.

Kate Michelman

Kate Michelman

I have also spoken to women facing legal hurdles today. Desperate women call NARAL to ask whether the laws that restrict and stigmatize abortion forbid them from obtaining the services they need. Women without the money to diaper their children; women who cannot travel for hours to get an abortion; young women who fear they'll be battered or thrown out of the house if they tell their parents they are pregnant; women pregnant by abusive relatives.

Kate Michelman

The right to safe, legal abortion is not secure. The Supreme Court has recognized that the right to choose is fundamental to women's equality, our dignity, and our freedom. Yet that right hangs by a thread. That thread could be cut by just one Supreme Court justice, or by an Attorney General uncommitted to its protection. The women NARAL represents cannot afford to have that thread severed. Their futures, their families, and sometimes their very lives, depend upon the right.

Kate Michelman

I will discuss our opposition to the nomination of John Ashcroft in the context of three dominant themes relating to this nomination: First, Senators must choose between John Ashcroft's unmitigated quartercentury attack on a woman's right to choose versus his initial remarks before this Committee, in which he vowed to preserve Roe v. Wade, the very case he has long sought to undermine. Second, this nomination is so far outside the bounds of our national consensus regarding fundamental civil rights and civil liberties that it must be rejected, notwithstanding the President's prerogatives and Senatorial courtesy; and Third, John Ashcroft's obvious and necessary promise to enforce existing law is woefully insufficient to warrant his confirmation. His record speaks volumes. That record indicates that John Ashcroft would indeed use the full panoply of powers available to the Attorney General to shape the law, to rescind the freedoms it took American women a century to secure. John Ashcroft's record, spelled out in more detail in my written submission, includes the following: He cosponsored the Human Life Act of 1998, which declared that life begins at fertilization. If enacted, this Act would have the effect of banning common contraceptive methods like birth control pills that millions of women rely upon. In his support of abortion procedure bans, he has called preserving the woman's life "rhetorical nonsense." He likened safe, common forms of contraception to abortion in opposing insurance coverage of contraception. As Attorney General of Missouri, he took action to limit nurses from providing vital contraceptive services. Fortunately, the Missouri Supreme Court unanimously rejected that effort. As Governor, he supported a bill in Missouri that would have outlawed abortion for 18 different reasons, encompassing almost all abortions. Women seeking reproductive health services would have had to sign an affidavit, revealing the most intimate details of their personal decision. In 1981 as Attorney General, Ashcroft came to Washington to testify in favor of the Helms/Hyde bill declaring that life begins at conception, thus allowing states to prosecute abortion as murder. The legislation was flagrantly unconstitutional but Ashcroft testified that he wanted to present a challenge to the courts, rather than having Congress respect established law. These and other actions John Ashcroft has taken as a public servant to criminalize abortion -- even in cases of rape and incest -- and to limit the availability of contraceptives demonstrate that he uses every tool of every public office to attack women's rights. The Attorney General- designate must commit not to take any action to roll back our constitutionally protected rights. But that's not all. His or her experience must demonstrate that such a commitment can be trusted, and John Ashcroft's late conversion on the road to confirmation is implausible. For the women whose lives, health and futures depend upon reproductive rights, it will be too late if Senator Ashcroft does not live up to his surprising promises to protect the right to choose.

Kate Michelman

Many say the President is entitled to have his nominees confirmed, short of some violation of the law or an ethical lapse. And I know that when a colleague sits in front of you, the confirmation process is particularly sensitive and difficult. Within reasonable bounds, a President should be able to pick his closest advisors. But those reasonable bounds have been exceeded with this appointment. It would be unthinkable for the Senate to confirm an Attorney General who built a career on dismantling Brown v. Board of Education. By the same token, a person should be disqualified from being Attorney General if he has sought, over decades and by repeated official acts, to annul women's rights, as John Ashcroft has. A career built on attempts to repeal established constitutional rights is not only sufficient reason to vote against his nomination; it should compel rejection.

Kate Michelman

Integrity of course demands that the Senate not sacrifice women's rights for the friendship of a colleague. The Reverend Dr. Martin Luther King, Jr. said, "The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy." If you understand that women's equality hinges on the right to choose, you must vote against the confirmation of John Ashcroft.

Kate Michelman

John Ashcroft has told you that he will enforce the law. What else would he or any nominee say? Remember, though, that the official duties of the Attorney General go far beyond enforcing the clear and specific dictates of existing law. And through every one of those duties and powers, including as the President's legal advisor as to what the law should be, John Ashcroft poses a threat to women's reproductive rights and equality. No case will ever present the same facts as decided cases such as Roe, Casey, or Stenberg. John Ashcroft will have a keen eye for the small differences new cases and new statutes present, and he will argue that these differences fall outside the protections of the established law he has newly promised to uphold. For example, would the Department argue in the Supreme Court that requiring parental consent for contraceptives is unconstitutional? Roe v. Wade, which was always more than just a legal case, has been hollowed out already. John Ashcroft's long record suggests that he would maintain only those protections the Court has already explicitly said cannot be taken away.

Kate Michelman

NARAL did not expect the President-elect to nominate anyone other than a conservative to be Attorney General. But John Ashcroft -- notwithstanding the remarkable assurances he has offered over the past two days -- is far beyond the margin of tolerance. Millions of women who stand with me cannot afford the risk of confirming John Ashcroft to the awesome position of Attorney General. NARAL Reprodudive Freedom & Choice john ashcroft: a chronology of assaults on women's reproductive rights

Kate Michelman

The designee to be the next Attorney General is a man whose record demonstrates a commitment to roll back established constitutional rights, a man who opposes abortion even in cases of rape and incest, a man who would legislate against common forms of contraception.

Kate Michelman

In the quotes and acts cited below, John Ashcroft declares that Roe v. Wade, the case that guarantees a woman's right to choose, was built "on the quicksand of judicial imagination." He ennobles the drive to end legal abortion by likening it to the civil rights movement of the 1960's. He declares that fetuses should be protected fully by the 14th Amendment, a position that would effectively criminalize as murder all abortions except those to preserve the woman's life. This record illustrates that John Ashcroft is so far out of step with the views of Americans -- and such a threat to established constitutional rights -- that he should not be confirmed as Attorney General. Ashcroft's Public Career 1973-1975 State Auditor of Missouri 1975-1976 Assistant Attorney General of Missouri 1976-1985 Attorney General of Missouri 1985-1992 Governor of Missouri 1995-2000 U.S. Senator from Missouri

Kate Michelman

1979 -- Attorney General Ashcroft defended a Missouri regulation that prohibited poor women from obtaining public funds to pay for medically necessary abortions to reserve their health. He appealed the case all the way to the U.S. Supreme Court.\1\ -

Kate Michelman

1980 Ashcroft participated in an anti-abortion rally entitled "Pilgrimage for Life" in St. Louis, Missouri.\4\ -

Kate Michelman

1981 Ashcroft testified before Congress alongside anti-choice activist John Willke, in support of a bill sponsored by Senator Helms and Representative Hyde that stated that life begins at conception and that would have allowed states to prosecute abortion as murder. Ashcroft stated, "I would regard this bill as an important but insufficient step in the protection of human life. I personally have an opinion and belief that the human life amendment would remain necessary." He also called Roe v. Wade an "error-ridden decision" and said, "I have devoted considerable time and significant resources to defending the right of the State to limit the dangerous impacts of Roe v. Wade, a case in which a handful of men on the Supreme Court arbitrarily amended the Constitution and overturned the laws of 50 states relating to abortions." \5\ -

Kate Michelman

1983 In Planned Parenthood v. Ashcroft, Ashcroft defended an anti-abortion Missouri law before the U.S. Supreme Court. Commenting on the Court's decision to uphold a provision of the law requiring a second physician to be present during post-viability abortions, Ashcroft said this was "a victory for Missouri's law." In response to the Court's decision to invalidate a part of the law that would have required all abortions after 12 weeks to be performed in a hospital, Ashcroft stated that Missouri may need more stringent abortion clinic regulations as a results.\6\ -

Kate Michelman

1985 -- Governor Ashcroft designated the 1985 anniversary of Roe v. Wade a "day in memoriam" for aborted fetuses and issued a proclamation that stated, "the people of Missouri and their elected official respect God's gift of life." \10\ -

Kate Michelman

1986 1Ashcroft signed a bill that, among other things: stated that life begins at fertilization, prohibited abortions at publicly funded facilities and prohibited public employees from performing or counseling about abortions. Ashcroft said, "This bill makes an important statement of moral principle and provides a framework to deter abortion wherever possible." The bill was challenged all the way to the U.S. Supreme Court in Webster v. Reproductive Health Services.\11\ -

Kate Michelman

1989 Ashcroft issued a proclamation declaring the 16th anniversary of Roe v. Wade "a day in memoriam" for aborted fetuses, stating, "the protection of the Constitution of the United States ought to apply to all human beings . . . including unborn children at every state of their biological development." \12\ -

Kate Michelman

Governor Ashcroft described abortion as "an atrocity against the future." \14\ -

Kate Michelman

1990 Ashcroft urged legislators to prohibit women from obtaining more than one abortion in their lifetimes." \17\ He stated, "History someday is going to say, 'This butchering of women and children is the wrong way to manage family size.' . . . A vast, overwhelming majority of Missourians -- even if they do not all feel the same about all abortions -- feels strongly that the use of abortions has gone much too far and that many abortions are now performed for reasons that are unacceptable." \18\ -

Kate Michelman

1991 At a Clergy for Life Dinner, Ashcroft boasted of Missouri, "No state has had more abortion related cases that reached the United States Supreme Court and be decided by the Supreme Court." \21\ -

Kate Michelman

The bill, which carried criminal penalties, would have required the physician to obtain an affidavit from the woman stating the reasons she is seeking an abortion. Ashcroft called state Senator Marvin Singleton, the swing vote on the committee considering the bill, to urge him to support it, but Singleton voted against the legislation because it lacked an exception for cases of rape and incest.\22\ -

Kate Michelman

1992 Ashcroft refused to appropriate funds for family planning services in Missouri beyond those required by federal law.\23\ -

Kate Michelman

1994 Missouri Right to Life praised Ashcroft for help[ing] Missouri become one of the premier states in the battle for the sanctity of life.\24\ -

Kate Michelman

1995-Senator During Senate debates on banning so-called "partial- birth" abortion, Ashcroft called talk of preserving the woman's life "rhetorical" nonsense.\25\ -

Kate Michelman

1996 Ashcroft stated, "Does my religious belief affect the way I do politics and government? It affects virtually everything I do, I hope.\28\ -

Kate Michelman

1997 As in 1995, Ashcroft again cosponsored legislation to criminalize safe abortion procedures used prior to fetal viability.\29\ -

Kate Michelman

1998 When asked, ". . .[O]ne choice, cut taxes or outlaw abortion-what would you do?" Ashcroft replied, "Outlaw abortion." \34\ -

Kate Michelman

1999 Ashcroft voted in favor of overturning Roe v. Wade and denying a constitutional right to safe and legal abortion services.\50\ -

Kate Michelman

2000 In response to Ashcroft's nomination for Attorney General, Jim Sedlack, director of public policy for the American Life League (ALL), commented, "We are very pleased . . . . He is one of the people who consistently supports our positions." ALL calls the Freedom of Access to Clinic Entrances Act "preposterous" and believes birth control pills are abortifacients, calling them "baby pesticides." \54\ -

Kate Michelman

2001 Over 100 conservative organizations endorsed Ashcroft for U.S. Attorney General, including: American Conservative Union, Americans United for the Unity of Church and State, Center for Reclaiming America, Christian Coalition, Citizens for Traditional Values, Concerned Women for America, Eagle Forum, Family Research Council, Focus on the Family, Human Life Alliance, and Young America's Foundation.\55\ -

Patrick Leahy

Thank you, Ms. Michelman.

Patrick Leahy

Ms. Feldt, you are one not unaccustomed to testifying before the Congress. Good to have you here.

Gloria Feldt

Thank you very much, Chairman Leahy and Senator Hatch, and all Senators. I am really honored to be here, particularly to follow upon the testimony of Ronnie White, I must say, very relevant to what we are talking about now.

Gloria Feldt

I also have a little confession to make. Yesterday, Mr. Ashcroft disclosed to you that he and I -- yes, I was the one who had talked with him about armadillos and skunks.

Gloria Feldt

The real point of that exchange, however, was to say that I agree with him that it is very important to act upon your convictions. And he and I have both spent over 25 years of our lives acting upon our convictions. But can you just wash away 25 years of passionate activism? I know I certainly could not.

Gloria Feldt

I want to believe Mr. Ashcroft when he says he accepts Roe v. Wade as the law of the land, but his career stands in sharp contrast to his statements this week. Since past behavior is the best predictor of future performance, I am very worried.

Gloria Feldt

John Ashcroft's beliefs are his own private business, but what he does about his beliefs are everybody's business. His career in government is noteworthy for his crusade to enact into law his belief that personhood begins at fertilization. This belief defies medical science.

Gloria Feldt

As a U.S. Senator, you know that he sponsored the most extreme version of the anti-choice human life amendment which would have written his belief into the Constitution. As Governor of Missouri, he signed the legislation declaring his belief to be the policy of the State. And he opposed contraceptive coverage for Federal employees because some of the contraceptives would have acted or could have acted after fertilization. Indeed, he never voted to support family planning at all.

Gloria Feldt

The fundamental right to choose declared in Roe stands on the earlier Griswold v. Connecticut decision, which protected the right to contraception. Both are based on the fundamental human and civil right to privacy in making child-bearing decisions.

Gloria Feldt

Mr. Ashcroft's crusade would not only outlaw abortion but most common methods of contraception as well, and unless Mr. Ashcroft is prepared to walk away from the keystone of his entire political career, then as Attorney General he would be in a unique position to impose his definition of personhood as fertilization. This could not only strike at the right to abortion but also contraception. An anti-choice President plus John Ashcroft plus a Supreme Court they help shape equals a recipe for disaster.

Gloria Feldt

You have asked whether Mr. Ashcroft would enforce the Freedom of Access to Clinic Entrances Act. He says that he will enforce the law, and that is necessary but not sufficient. It takes leadership and prevention, and here is the difference: In the late 1980's, hordes of demonstrators repeatedly stepped over the lines of legal protest at our centers. I personally received a long series of telephone death threats, both at home and at work. Our doctors were stopped day and night. Our health centers received numerous bomb threats. I went to the chief of police, and he said, "Close the clinic."

Gloria Feldt

There was a sea change after FACE, and with an Attorney General committed to vigorous enforcement. It is not just about enforcing the law after violence has occurred, you see, because all around the country U.S. attorneys brought together various law enforcement agencies. Collaboration and cooperation became expectation. U.S. Marshals not only answered our phone calls, they started calling us to ask if they could help with preventive measures. Murders and violent acts nationwide were cut in half as a result.

Gloria Feldt

Paula Gianino, CEO of our St. Louis Planning Parenthood affiliate, tells me that in John Ashcroft's tenure as the Attorney General and as the Governor of Missouri, he did not once take a public leadership stand against clinic violence. Her staff could not find in the media nor any individual who remembers Mr. Ashcroft speaking out on clinic violence, even when Reproductive Health Services was firebombed, causing $100,000 worth of damage in 1986.

Gloria Feldt

Senator Ashcroft has said that he is proud Missouri brought more anti-abortion cases to the Supreme Court than any State. He said that outlawing abortion is more important to him than cutting taxes and that if he could only pass one law, it would be to outlaw abortion. How can he turn that spigot off? And if he can, what does that say?

Gloria Feldt

I want to close by talking to you not as Senators but as men and women -- none of the women are here today, I am sorry to say -- who care deeply about the Nation and its people. This nomination represents something bigger than Presidential discretion, bigger than senatorial courtesy, bigger even than your personal friendships. This is about a fundamental human and civil right, to determine whether you believe women have the moral authority to run their own lives, to make their own child-bearing decisions. So I ask you to listen to your inner voices and think about what you will say to your daughters and your granddaughters.

Gloria Feldt

How will you explain to future generations if John Ashcroft uses the power of his office to deny the women you know and love reproductive the choices, the right to our own lives?

Gloria Feldt

Planned Parenthood is widely recognized as one of the country's major providers of abortion services, including both surgical and medical abortion, and we are proud of the important role we play in making abortion accessible to the women who need it in settings that are dignified and compassionate. However, as our name indicates, at the core of Planned Parenthood is family planning, comprising more than 90% of the services we provide.\2\ By family planning, I mean contraception and accompanying health care, including annual physicals and cancer screenings, and counseling and information that give people the means to make their own responsible choices. Each year, we prevent an estimated half-million unintended pregnancies through these services, and it should go without saying that preventing unintended pregnancies also prevents abortions.\3\ And remember, that number just represents Planned Parenthood. Nationwide, family planning services prevent millions of unintended pregnancies a year \4\, and also help prevent sexually transmitted infections and a wide range of other health problems. Taken together, family planning services have a profound positive effect on the lives and health not only of the women of this country, but their families, their children. . .in fact, just about every one of us. -

Gloria Feldt

Gloria Feldt

For a woman to be able to determine her own destiny requires that she be able to control the timing and extent of her childbearing and the integrity of her own body. The ability to make these decisions without government interference and regardless of geography, economic circumstance, or political considerations, is the most fundamental civil and human right. That's why Planned Parenthood is so deeply concerned about Senator Ashcroft's record of attempts to interfere with the right of Americans to make these decisions, and by the genuine threat his confirmation as attorney general would represent to the rights of all Americans.

Gloria Feldt

As a senator, John Ashcroft failed to cast a single vote in favor of family planning services.\5\ And remember, I'm not talking about abortion here; I'm talking about preventive care. More significantly, his actions and statements over time with regard to choice and family planning represent no mere commentary on policy decisions of the day, but rather illustrate deeply held beliefs that put him at odds with the overwhelming majority of Americans who want and need reproductive health and family planning services free from government interference. -

Gloria Feldt

Taking one of the most extreme positions among those who oppose a woman's right to make her own reproductive choices, John Ashcroft actually believes that personhood begins before pregnancy, at the moment that sperm meets egg, the moment of fertilization. He holds this belief in spite of the fact that it contradicts the medically accepted definition of pregnancy as the time when a fertilized egg is implanted in the uterine wall -- the moment of conception.\6\ -

Gloria Feldt

Hughes, E. (1972). Obstetric-Gynecologic Terminology with Neonatology And Glossary of Congenital Anomalies. Philadelphia, PA: F. A. Davis Company. -

Gloria Feldt

Planned Parenthood does not oppose Senator Ashcroft's appointment because of his personal beliefs; we oppose him because of his record of using his positions of governmental authority to enact his views into law, and thereby to impose those views on all citizens. Cases in point: John Ashcroft has sponsored the most extreme version of the so-called "Human Life Amendment," \7\ which would have given his personal ideology based definition of pregnancy the force of law by declaring that life begins at fertilization. When he was governor of Missouri, he signed into law legislation declaring that it is the policy of Missouri that life begins at fertilization.\8\ And he was one of eight senators to sign a "dear colleague" letter opposing a Senate amendment requiring that federal employees get the same coverage for contraceptive drugs and devices that they receive for other prescription drugs and devices. In the letter, they said, "We are concerned with what appears to be a loophole in the legislation regarding contraceptives that, upon failing to prevent fertilization, act de facto as abortifacients." \9\ -

Gloria Feldt

The practical, and intended, result of these and similar efforts would be not only the criminalization of abortion as we know it, but also of some of the most commonly used and effective methods of contraception, such as the birth control pill, which frequently acts to prevent implantation of the fertilized ovum.

Gloria Feldt

You will hear testimony today about the fear that, as attorney general, Senator Ashcroft would try and perhaps succeed in turning back the clock on Americans' reproductive rights by eliminating the right to choose abortion. Let us not forget that the fundamental right to abortion declared and protected by Roe and Casey stands on the earlier Griswold v. Connecticut decision, which protected the closely linked and equally fundamental right to contraception.\10\ Both are based on the fundamental right to privacy in making childbearing decisions. Senator Ashcroft's record demonstrates that he will use the power of government to impose on citizens his view that personhood begins at fertilization. To the extent that he is able to do so, he will not only strike at the right to abortion, he will strike at the right to contraception. The attorney general has an unparalleled ability, by virtue of his roles as legal advisor to the U.S. president and head of the Department of Justice, to influence the legislative agenda of the nation. I am truly hard pressed to understand how anyone would voluntarily grant that level of power and influence to an individual who has so single-mindedly pursued a personal ideological agenda, while ignoring not only medical facts but also the rights and health of millions of Americans in the process. -

Gloria Feldt

Yes, I am deeply concerned by what Senator Ashcroft might do as attorney general to change laws that now keep family planning and reproductive health services available to the majority of Americans who want and need them. He has demonstrated throughout his career his willingness to go to great lengths to push for laws and court decisions that reflect his personal ideological and religious views even when his views would override the deeply held views of the majority. I respect his right to hold those views, and I would fight for his right to hold them. But he has no right to impose them on the rest of us in this pluralistic democracy.

Gloria Feldt

As concerned as I am about some of the things an Attorney General Ashcroft might do, I am equally concerned about some of the things he might not do.

Gloria Feldt

As the nation's chief law enforcement officer, the attorney general has the ability and the responsibility to vigorously enforce laws designed to protect both providers and recipients of reproductive health services, while deterring and punishing those who employ criminal means to prevent access to those services.\11\ Chief among these laws is the Freedom of Access to Clinic Entrances Act, which prohibits persons from using force, threat of force, or physical obstruction to intentionally injure, intimidate, or interfere with persons because they are obtaining or providing reproductive health services. The law also bars persons from intentionally damaging or destroying the property of a facility because the facility provides reproductive health services. -

Gloria Feldt

NARAL -- National Abortion and Reproduction Action League. (Accessed January 16, 2001). "Freedom ofAccess to Clinic entrances (FACE)." [Online] http://www.naral.org/mediasources/fact/freedom/html -

Gloria Feldt

When the law act was passed in 1994, it came not a moment too soon. Those of us involved in the provision of reproductive health services are a hardy lot; we've had to be. But there's a limit to what anyone can or should have to endure, and the stunning litany of violent assaults, arson incidents, bombings and attempted bombings, vandalism, stalking, and physical intimidations that went on before the law was enacted would be enough to petrify the bravest of battle-tested warriors, never mind the innocent young men and women both seeking and providing these services across the country. Make no mistake; the opponents of reproductive choice take their business seriously. Individuals have been threatened; people have been injured; people have been killed -- many of them employees and volunteers at Planned Parenthood health center and at other providers throughout the country.

Gloria Feldt

The good news is that passage of the Freedom of Access to Clinic Entrances act in 1994 was rewarded by a precipitous fall in the major categories of criminal violence outside health centers compared to the five years previous: the number of murders of medical staff dropped by 40%; attempted murders fell by 45%; arson dropped by 62%; and attempted arson and bombings fell by 48%. Incidents of harassment, disruption, and blockades also showed a decline.\12\ -

Gloria Feldt

The critical factor in the reduction in violence against health care providers was the active and vigorous pursuit and enforcement of the law by the Department of Justice, under the leadership of the attorney general, in cooperation with local law enforcement. By committing the necessary resources and support essential to apprehending and prosecuting perpetrators, the department sent a zero- tolerance message to would-be arsonists, bombers, and murderers.

Gloria Feldt

To be sure, the most violent incidents, especially those involving the loss of life, are the ones that have garnered the most attention and still stand out in our hearts and minds. We must never forget the names of those who sacrificed their very lives at the hands of extremists -- names like Dr. David Gunn, Dr. John Bayard Britton and his volunteer escort, James H. Barrett, Shannon Lowney and Leanne Nichols, two beautiful young women who worked as receptionists; Officer Robert Sanderson, an off-duty police officer killed during the first fatal bombing of a U.S. abortion clinic; and Dr. Barnett Slepian, killed by a sniper's bullet fired through a window of his home in 1998.

Gloria Feldt

We remember each and every one of those individuals, and we remember their families and what they have lost. But it would be a mistake to think that it's just those who commit the most violent of acts who must be pursued using every resource and legal avenue. For the reality is that in almost every case, the perpetrators of arson, bombings, and similar acts of violence and destruction had, at an earlier time, been involved in threats, harassments, and other acts of intimidation, and only later did they "graduate" to the more infamous violent crimes whose victims we now must sadly mourn.

Gloria Feldt

James Charles Kopp, the killer of Dr. Barnett Slepian, is a case in point. Prior to murdering Dr. Slepian in 1998, he was arrested eight times in as many parts of the country for blocking entrances to clinics. And just as Senator Ashcroft has not differentiated between family planning and abortion, "family planning-only" clinics and places where abortions are also performed as targets for his legislative and other activist efforts, neither have the perpetrators of violence. Family planning clinics have been the targets of threats, vandalism, and bombings, too.

Gloria Feldt

And let's be perfectly clear: the law may say that access to family planning and reproductive health services is a basic right; it may say that the provision of these services is legal and protected; and the law may even specify that it is illegal to interfere with access to family planning and reproductive health services. But if those laws are not vigorously enforced by the Department of Justice; and if providers are too scared for their lives to offer the services; and if Americans are too afraid to access them, then all of the laws will be nothing but empty vessels.

Gloria Feldt

As leaders in the public eye, I'm sure you know more than a little bit about what it means to be out there in a world where there's always someone who doesn't agree with you on something, and occasionally that someone has a scary way of telling you so. Like you, I get letters from average Americans on a daily basis expressing their views on our issues. Fortunately, the vast majority of them take a calm tone. In fact, most of the letters we receive are thank-you notes, expressing gratitude for ways in which Planned Parenthood improved the authors' lives through services we provided. Then there are the other letters. I'll readjust a few lines of one.

Gloria Feldt

"You people will pay personally for what you are doing . . .I will support every terrorist possible to end the bloodshed that you have and are bringing upon the white race . . .I won't be as dramatic and sloppy as a Tim McVeigh . . .your money has not prevented those pigs from being killed . . .neither did the laws, or the pig-cops who protect you. . ."

Gloria Feldt

A Department of Justice investigation revealed that John Kelley, the man who wrote the letter I just quoted from, had a past history of both of protesting at clinics and stalking women.\13\ The FBI moved aggressively to identify and arrest him, and in September 1999, he pled guilty to sending threatening e-mail messages to reproductive health care providers in New York and Georgia and was sentenced to 16 months in prison. Believe me when I tell you that I can't help but wonder what he might try next time, and whether he'll be pursued as vigorously as the last time. And there are so many other John Kelleys out there, waiting for their chance, watching what we do. . .watching what you do. -

Gloria Feldt

That's why the role of attorney general is so critical in vigorously enforcing the law and pursuing the John Kelleys of this country, and why the possibility of a John Ashcroft as attorney general has me and so many others afraid, not just for our rights, but for our very lives.

Gloria Feldt

The best way to predict how John Ashcroft would act as U.S. attorney general is to look at his performance in Missouri when he held office there. During the time that John Ashcroft was attorney general and then governor of Missouri, he failed to respond to the increase in anti-choice intimidation, harassment, and violence at Missouri reproductive health clinics. A particular example was his reaction to the devastation by arson of a clinic operated by Reproductive Health Services, now part of Planned Parenthood, in June 1986 in Manchester, Missouri. Despite our best efforts to find a single public statement from him at that time, it appears that he said absolutely nothing.

Gloria Feldt

Throughout his career, John Ashcroft has fought hard for the things he believes in. By itself, that is a quality each one of us can and should admire. But he has taken his fight to the point of using his power and positions to impose his beliefs on every one of us, and that we should not and must not accept. He also has failed to fight for the rights of those with whom he disagrees, especially when the disagreement concerns the very nature of human and civil rights. That, too, we should not and must not accept. As attorney general, John Ashcroft would have the responsibility to put aside his personal beliefs and use every resource at his disposal to vigorously enforce the laws that protect the rights, the health, and the very lives of all Americans. Based on his record, we simply do not believe he will do that, and that is why we hope he will not be confirmed. Thank you. Planned Parenthood Appointments Watch Name: Former Sen. John Ashcroft Position: Attorney General PPFA Position: AGAINST key areas of concern The Attorney General plays a critical role in the selection of federal judicial nominees. The Justice Department is responsible for selecting, screening and recommending judicial nominees for appointment to federal district and appellate courts throughout the country as well as for the Supreme Court. Given the large number of vacancies on the federal bench, at both the district and appellate level, the Attorney General can have a significant impact on the federal court system for many years. As our country's lead prosecutor, the Attorney General is responsible for the enforcement of federal laws protecting women's reproductive freedom, including the Freedom of Access to Clinic Entrances Act (FACE). Besides criminal enforcement of FACE, the Attorney General, along with State Attorneys General, may initiate civil FACE actions resulting in injunctive relief and monetary penalties. The Attorney General is the legal advisor to the President and all the executive branches of government. In particular, the Justice Department provides legal advice to the executive branch on all constitutional questions. The Justice Department also reviews pending Congressional legislation for constitutionality. Given Mr. Ashcroft's opposition to Roe v. Wade, it is possible that a Justice Department under his direction might consider nearly any ban or restriction on abortion to be constitutional. The Attorney General will also represent the Bush Administration's position on issues within the courts -- including the Supreme Court. Through the Office of the Solicitor General, the Attorney General represents the United States in the Supreme Court.

Gloria Feldt

ashcroft's legislative record demonstrates his extreme positions

Gloria Feldt

John Ashcroft was one of the fiercest opponents of abortion rights during his tenure in the U.S. Senate. As a Senator, he supported the Hyde Amendment, which prohibits the use of federal funds for abortion services as well as laws that might have banned common and safe forms of birth control. He was one of the few elected public officials to defend and accept an award from the American Life League, a radical right-wing group opposed to all abortions for any reason.

Gloria Feldt

Planned Parenthood Action Fund gave Ashcroft a 100% anti-choice rating while he was in office. He is extreme, and his positions are out of line with mainstream America. Ashcroft has a clear history of anti- choice positions that demonstrate why he should not be Attorney General:

Gloria Feldt

Ashcroft Opposed Roe v. Wade -- As recently as October 1999, Ashcroft voted against an amendment restating the principles of Roe v. Wade and declaring that the Roe decision was appropriate, Constitutional, and should not be overturned or narrowed. (Roe v. Wade Resolution 10/21/99)

Gloria Feldt

Ashcroft Sponsored the Human Life Amendment -- In 1998, Ashcroft sponsored S.J. Res. 49, the so-called "Human Life Amendment," and S. 2135, the so-called "Human Life Act," which stated that a fetus is a human being from the moment of fertilization and banned abortions (even in cases of rape and incest) "as long as [the law authorizing such procedures] requires every reasonable effort be made to preserve the lives of both of them." (Human Life Act of 1998)

Gloria Feldt

Ashcroft Sponsored Legislation Potentially Banning the Birth Control Pill -- The definition of life as beginning at "fertilization" as used in the "Human Life Amendment" raised the prospect that such a law or amendment would bar the use of many of the most effective and popular means of birth control. The position that birth control pills and IUDs are abortifacients is a primary tenet of the American Life League, an organization from which Ashcroft received an award for his anti-choice activities. (Human Life Act of 1998)

Gloria Feldt

Ashcroft Opposed Legislation Guarantying That Clinic Violators Pay Their Fines -- Ashcroft voted against an amendment that would have prevented perpetrators of violence or harassment at reproductive health care clinics from declaring bankruptcy to avoid paying the damages and court fines levied against them as a result of their illegal activities. (Amendment to Bankruptcy legislation (S. 625), in committee)

Gloria Feldt

Ashcroft Opposed Medically Accurate Sex Education -- Instead of supporting responsible, medically accurate sexual education programs that provide information about all options relating to reproductive health, including abstinence, so that teens may make informed decisions, Ashcroft voted to earmark $75 million in fund for abstinence only education. (Vote to allow $75 million to be earmarked for abstinence only education 7/23/96) role in legislation

Gloria Feldt

The Justice Department reviews pending Congressional legislation for constitutionality. Examples of legislation proposed in the 106`" Congress that the Justice Department might have reviewed include the so-called partial birth abortion ban, the Unborn Victims of Violence Act, the Child Custody Protection Act as well as appropriations riders, including bans on research relating to mifepristone, whether women can use their own money on military bases to get abortions, and whether women in prison can use their own money to get abortions. conclusion: ashcroft puts women's constitutionally protected rights in jeopardy

Gloria Feldt

One only has to understand the scope of the Attorney General's office to understand why Planned Parenthood Federation of America is opposed to the nomination of John Ashcroft. Planned Parenthood's nationwide network of more than 500,000 activists is mobilizing to oppose his nomination.

Patrick Leahy

Thank you, Ms. Feldt.

Patrick Leahy

Ms. Greenberger, good to have you here again, and please go ahead. And we are having some difficulties with some of the sound system, so bring the microphone close.

Patrick Leahy

STATEMENT OF MARCIA GREENBERGER, CO-PRESIDENT, NATIONAL WOMEN'S

Marcia Greenberger

Thank you. Thank you, Senator Leahy and other members of this Committee, for the invitation to testify today. I am Co-President of the National Women's Law Center which, since 1972, has been in the forefront of virtually every major effort to secure women's legal rights. My testimony today is presented on behalf of the center as well as the National Partnership for Women and Families, which, since its founding in 1971 as the Women's Legal Defense Fund, has also been a preeminent advocate for women's legal rights in Washington and nationally.

Marcia Greenberger

We are here today to oppose the nomination of John Ashcroft to serve as Attorney General of the United States, and we do so because the Attorney General of the United States, very simply, is responsible for protecting and enforcing the fundamental principles and laws that have advanced and safeguarded women's progress for more than three decades and because, as has been stated here, Senator Ashcroft's record demonstrates that entrusting him with this heavy responsibility would put these precious gains for women at far too great a risk to ask them to bear.

Marcia Greenberger

Mr. Ashcroft has testified that he would accept responsibility to execute the laws as they are and not as he might wish them to be. But we have not been reassured by his testimony. The extreme positions that have been a driving and overriding theme of his long public career have repeatedly led him to misread what the laws are, and then to zealously use his public offices to advance his mistaken views.

Marcia Greenberger

His assurances in his testimony were too often general in nature, subject to many caveats, and must be considered within the context of the way in which he did discharge his obligations when he was also obligated to enforce and also interpret the laws. I want to mention briefly some of the areas beyond choice and abortion and contraception, so important, and what has been discussed so far this morning, to raise some other issues as well.

Marcia Greenberger

We have heard about his opposition to the equal rights amendment which would have given women the highest legal protection against sex discrimination in all areas of life by the government. This stands in stark contrast to his support of other amendments to the Constitution, extraordinary support to so many other amendments. And we know about his vigorous support, or pursuit, rather, of the National Organization for Women, and we know of only one other Attorney General who even mentions support of that kind of suit out of the 15 States that were subject to boycott at that time.

Marcia Greenberger

He used his veto power not just in not supporting laws important to women, but actually vetoing laws, including a maternity leave law in 1980 that he vetoed that was far more limited in scope than the Federal Family and Medical Leave Act that he would be charged with upholding, including enforcing as Attorney General. He twice vetoed bills that would have established a State minimum wage in Missouri. Women are the majority of minimum wage earners. And at that time, Missouri was only one of six States without a State minimum wage law.

Marcia Greenberger

He twice used his line-item veto in 1991 and again the following year to seek out and strike even small sums of money for domestic violence programs, prompting a local domestic violence advocate to denounce the action as reprehensible in light of the fact that the programs in question were literally struggling to stay afloat.

Marcia Greenberger

One of the most critical responsibilities of an AG in administering the Department of Justice programs dealing with violence against women is determining the financial resources that will be committed to that very program.

Marcia Greenberger

As a Senator, Mr. Ashcroft's record on issues important to women has been no better, and my written testimony explains why. I will mention two points briefly.

Marcia Greenberger

First, as Senator, he repeatedly blocked the confirmation of highly qualified women to the Federal bench. Not one of us sitting here today could have failed but be moved by the extraordinary testimony of Judge Ronnie White, and I want to point out how struck I was by the important notes of criticism that were articulated by members of this Committee about the process that was followed in the Judge Ronnie White case. There have been similar problems with other women nominees. Senator Specter, you identified those problems this morning.

Marcia Greenberger

Senator Ashcroft would be screening and evaluating judges, a major responsibility. He would be responsible for setting up and implementing the process he would use to screen and refer judges to the President. He would be doing this behind closed doors. This Senate has seen how he has operated in the open. To give him that vast authority, as I say, behind closed doors is unthinkable.

Marcia Greenberger

I want to also say that his promise to enforce the law as it is has not been borne out in practice when he has disagreed with the law as it has been. He has not been able to do so. And I am not questioning his motives. I am for the conviction with which he made the promise to this Committee and to the American public. What I am questioning is his ability to dispassionately, despite his intentions to do so otherwise, but his ability to actually read the law fairly and accurately.

Marcia Greenberger

We have heard about what happened with the nurses' case. I want to briefly mention one other case involving -- when he was Attorney General of Missouri, where he supported in court going -- trying to go all the way up to the Supreme Court, a law that would have automatically terminated parental rights to a child born after an attempted abortion and then making automatically the child a ward of the State.

Marcia Greenberger

Judge William Webster, then a judge on the Eighth Circuit, described the provision, and these are in his words in a concurring opinion, as offensive, totally lacking in due process, and patently unconstitutional. We cannot ask the American public to rely upon the promises of Senator Ashcroft that his view of what is constitutional will become the view that then is argued to the Supreme Court, is the subject of advice for discrimination laws across the country and the like.

Marcia Greenberger

Statement of Marcia D. Greenberger, Co-President, National Women's Law Center My name is Marcia Greenberger, and I appreciate your invitation to testify today. I am Co-President of the National Women's Law Center, which since 1972 has been at the forefront of virtually every major effort to secure women's legal rights. My testimony today is presented on behalf of the Center as well as the National Partnership for Women & Families, which, since its founding in 1971 as the Women's Legal Defense Fund, also has been a preeminent advocate for women's legal rights in Washington and nationally.

Marcia Greenberger

Marcia Greenberger

I am here to oppose the nomination of John Ashcroft to serve as Attorney General of the United States. I would like to emphasize that this is a step that we do not take lightly. We do so in the case of this nomination because the Attorney General of the United States is responsible for protecting and enforcing the fundamental principles and laws that have advanced and safeguarded women's progress for three decades, and Mr. Ashcroft's record demonstrates that entrusting him with this heavy responsibility would put these precious gains for women at substantial risk -- a risk too great to ask women of this country to bear.

Marcia Greenberger

The Attorney General, as head of the U.S. Department of Justice, is directly responsible for carrying out the President's constitutional charge to "take care" that the laws of the United States are faithfully executed. While Mr. Ashcroft may understand that his responsibility would be to execute the laws as they are, and not as he might wish them to be, the extreme positions that have been a driving and overriding theme of his long public career have repeatedly led him to misread what the laws are and zealously use the public offices he has held to advance his firmly-held views. His record demonstrates that he would use the vast powers of Attorney General to endanger the constitutional guarantees and hard-won federal laws that form the core legal protections for women in this country today. The Ashcroft Record is One of Hostility to Laws and Constitutional Protections of Central Importance to Women

Marcia Greenberger

Much has been said about the fact that Mr. Ashcroft believes Roe v. Wade should be overturned, and about his unrelenting pursuit of that goal throughout his public career. Less has been said about the sweeping way he would seek to overturn Roe. He would include, in his definition of abortion, commonly-used forms of the birth control pill, IUD's and other methods of contraception.\1\ He would make no exception for cases of rape, incest or the very health of a woman.\2\ In overturning Roe v. Wade, he would not even leave it up to each state to determine what it would allow women within its borders to choose. Rather, he takes the position that every state -- from New York to California, from Maine to Florida -- should be restricted, by federal statute and by constitutional amendment, in its ability to preserve women's right to choose.\3\ He has even supported legislation that would bar women from challenging the constitutionality of state restrictions in federal district courts and courts of appeal.\4\ -

Marcia Greenberger

Mr. Ashcroft has made no secret of the central role that his opposition to Roe v. Wade has played in his public life. In 1983, he told the Missouri Citizens for Life annual convention that he "would not stop until an amendment outlawing abortion is added to the U.S. constitution." \5\ More recently he said, "If I had the opportunity to pass but a single law, I would fully recognize the constitutional right of life of every unborn child, and ban every abortion except those medically necessary to save the life of the mother." \6\ As he told Human Events, "Throughout my life, my personal conviction and public record is that the unborn child has a fundamental individual right to life which cannot be infringed and should be protected fully by the 14th Amendment. "(emphasis added).\7\ -

Marcia Greenberger

Mr. Ashcroft has stated that he will not compromise on the abortion issue, and has chastised fellow Republicans who took the position that the Republican party should be more accepting of other opinions: "To the so-called leaders who say abortion is `too politically divisive' let me be clear. Confronting our cultural crises is the true test of our courage and true measure of our leadership. It is time for us to reacquaint our party with the politics of principle. We must not seek the deal, we seek the ideal." \8\ Mr. Ashcroft said that he was the only Senator to oppose the Republican National Committee's decision to continue to fund Republican candidates who support abortion rights and oppose the ban, ultimately struck down as unconstitutional, on so- called "partial birth" abortion. "I think there are certain things we simply don't fund and stand for and that's one of the things we don't," he said.\9\ -

Marcia Greenberger

Not only has Mr. Ashcroft argued that his party should not financially support candidates in favor of abortion rights, he also has used a rigid abortion rights test in judging Clinton administration nominees. As he stated on his web site, "life and death decisions are often made by non-elected officials -- judges, the surgeon general, etc. Those who devalue life must not be placed in authority over policies affecting our most vulnerable. I have repeatedly, and in many instances alone, fought President Clinton's anti-life nominations and appointments including activist federal judges and Surgeon General nominees Henry Foster and David Satcher." \10\ -

Marcia Greenberger

It is hard to imagine that John Ashcroft, who throughout his career has pledged to ban abortions and overturn Roe v. Wade, has used every public service position that he has held to advance that cause, has attacked the legitimacy of the Roe decision in the strongest of terms, has decried any compromise on the issue and chastised his colleagues in the Republican party for a "big tent" approach, would protect Roe v. Wade as the Attorney General of the United States.

Marcia Greenberger

In addition, Mr. Ashcroft has amassed a record of opposition to other core constitutional and legal rights of women, and programs to ensure their health and safety, and has a dismal record of appointing women to high-level government positions and the judiciary. The President of the St. Louis area chapter of the National Women's Political Caucus said, "Ashcroft's record on appointments reflects his administration's general insensitivity and unresponsiveness to women's issues, such as domestic violence, quality child care, education, reproductive rights and equal rights." \11\ -

Marcia Greenberger

While Mr. Ashcroft has been ardent in his support for a string of constitutional amendments on a variety of subjects, as Attorney General of Missouri he opposed ratification of the Equal Rights Amendment to the U.S. Constitution, which would have given women the strongest level of protection against government-based sex discrimination.\12\ Indeed, thenAttorney General Ashcroft went to extreme lengths to sue the National Organization for Women (NOW) under the antitrust laws for its efforts to persuade the remaining 15 states to ratify the ERA by encouraging an economic boycott. He pursued this litigation all the way to the Supreme Court, even though he was unsuccessful every step of the way, as the courts held that NOW's activities were protected by the First Amendment.\13\ -

Marcia Greenberger

As Governor of Missouri, Mr. Ashcroft also demonstrated his antipathy to key concerns of women through his repeated use of his veto power to thwart the will of the Missouri legislature on issues of particular importance to women. In 1990, he vetoed a maternity leave law that was far more limited in scope than the federal Family and Medical Leave Act he would be charged with defending as Attorney General.\14\ He twice vetoed bills that would have established a state minimum wage in Missouri, despite the fact that Missouri was one of only six states without a state minimum wage law at the time; women comprise the majority of minimum wage earners.\15\ He twice used the line-item veto, in 1991 and again the following year, to seek out and strike even small sums of money for domestic violence programs, prompting a local domestic violence advocate to denounce the action as "reprehensible" in light of the fact that the programs in question were "literally struggling to stay afloat." \16\ And he vetoed legislation creating 700 new slots of subsidized child care and reportedly killed bills that would have required church-based child care to meet basic fire, safety, and sanitation standards.\17\ -

Marcia Greenberger

Reinforcing, and perhaps even partly explaining, his poor record of support for laws protecting women during his eight years as Governor, John Ashcroft had a dismal record on appointments of women to the highest levels of his government and to the courts. In 1989, a survey by the National Women's Political Caucus revealed that Mr. Ashcroft was the only governor in the country with an appointed cabinet that did not include any women.\18\ After serving as Governor for seven years, John Ashcroft had appointed only one woman to his cabinet. -

Marcia Greenberger

A separate study of Governor Ashcroft's judicial appointments in his first term showed that only three of his 60 appointments were women.\19\ The Women's Lawyers Association's judiciary committee in St. Louis charged that questions posed to judicial applicants had the potential for adverse impact on women candidates. Inappropriate question topics included: marital status, number and ages of children, pregnancies and family planning.\20\ -

Marcia Greenberger

As a U.S. Senator, Mr. Ashcroft's record on issues important to women is no better. He has been a vigorous opponent of one of the tools that are most effective in remedying discrimination and expanding opportunities for women -- affirmative action -- and he went to great lengths to attempt to severely weaken it. He voted to abolish a program that ensures that women business owners have a fair chance to compete for business in federally funded highway and transit projects, and mischaracterized the program as one involving quotas and set-asides even though it was not.\21\ He worked to block Senate confirmation of Bill Lann Lee for the position of Assistant Attorney General for Civil Rights on the ground that Mr. Lee supported affirmative action, even though Mr. Lee supported only constitutional forms of affirmative action that are of great importance to women's progress.\22\ He also voted against the Hate Crimes Prevention Act, which would add gender- based hate crimes -- along with crimes based on sexual orientation or disability -- to the categories of heinous crimes prohibited by the federal civil rights laws.\23\ -

Marcia Greenberger

As a Senator, he also repeatedly blocked the confirmation of highly qualified women to the federal bench. It is well known that women nominated to the federal bench by President Clinton were subjected to a disproportionate share of delays and opposition by certain senators. Senator Ashcroft featured prominently among them. A leading example is the nomination of Margaret Morrow, a respected Los Angeles corporate attorney, to the federal district court in California. Senator Ashcroft leveled unsubstantiated charges against her (seriously distorting a speech she gave about women in the legal profession) and blocked consideration of her nomination with a secret "hold" he later acknowledged.\24\ She had strong bipartisan support (from Senator Hatch, among many others), and ultimately was approved twice by this Committee and overwhelmingly by the full Senate, but only after Senator Ashcroft's obstructionist tactics delayed her confirmation for nearly two years.\25\ -

Marcia Greenberger

A major factor in assessing John Ashcroft's fitness to be Attorney General is his ability, as the nation's chief legal officer, to carry out his duties based on a fair and impartial reading of the law, and to put aside his extreme positions and his use of extreme tactics to advance those positions. His record shows that he has not been able to do so in the past, and therefore he should not be entrusted to do so in the future, as Attorney General. His reading of the law has been so colored by his strongly held beliefs that he has been either unable or unwilling to see what the law requires, and he has repeatedly used the public offices he has held to attempt to subvert legal rights and constitutional protections for women.

Marcia Greenberger

Senator Ashcroft's blatant misreading of Judge Ronnie White's legal opinions is a prime example of his failing to read the law fairly and impartially. Senator Ashcroft, for example, told the Senate that Judge White's "only basis" for recommending a new trial for a defendant in State of Missouri v. Kinder, 942 S.W.2d. 313 (Mo. 1996), on the ground that the trial judge was biased, was that the trial judge opposed affirmative action.\26\ But Judge White's dissent actually said the opposite -- that the trial judge's criticism of affirmative action was "irrelevant" to the issue of the judge's bias.\27\ Senator Ashcroft was either unwilling or unable to interpret this opinion correctly. -

Marcia Greenberger

In no area has Mr. Ashcroft been more flawed in his reading of the law than in the area of women's reproductive and other legal rights. For example, as Attorney General of Missouri, he defended a law automatically terminating parental rights to a child born after an attempted abortion and making the child award of the state. Judge William Webster, then a judge on the Eighth Circuit, described this provision in a concurring opinion as "offensive," "totally lacking in due process," and "patently unconstitutional." \28\ Judge Webster's opinion was quoted with approval by a unanimous Eighth Circuit panel, which struck down the law.\29\ Yet Mr. Ashcroft sought review by the Supreme Court, which summarily affirmed the Eighth Circuit.\30\ When Mr. Ashcroft, as state Attorney General, intervened to support a challenge to the ability of nurses under the State Nurse Protection Law to provide contraception and other basic health services to women, his legal position was rejected by a unanimous Missouri Supreme Court -- which noted that the Attorney General and other representatives of Missouri could not cite a single case elsewhere challenging the authority of nurses to perform these services even though at least 40 states had similar nursing practice laws.\31\ There are some who say that as Missouri Attorney General he was required to defend these statutes, but it is well established that no Attorney General is compelled to defend statutes that are patently unconstitutional, or intervene in cases without merit, let alone persist in appeals all the way to the Supreme Court. -

Marcia Greenberger

Moreover, Mr. Ashcroft has not only defended seriously flawed state statutes, he also has gone out of his way to seize other opportunities to undermine women's legal rights. He used the powers of his office as state Attorney General to pursue a meritless antitrust case against NOW all the way to the Supreme Court. As Missouri Attorney General he also chose to come to Washington to testify in the U.S. Senate in support of an extreme "human life" bill.\32\ Introduced in 1981, the bill would require states to treat fertilized eggs as human beings under the law, with full due process rights, and would assign states a "compelling interest" in their protection.\33\ The bill prompted widespread opposition from medical and religious groups, who called the bill scientifically unsound and potentially damaging to the health of American women, and its patent unconstitutionality under Roe v. Wade was decried." \34\ In contrast, then-Missouri Attorney General Ashcroft testified in strong support of this clearly unconstitutional bill and stated that "there's more than ample precedential legal and policy support for the Courts to uphold this bill.\35\ The bill was not enacted. As Governor he introduced another patently unconstitutional bill that would have prohibited a woman from ever having a second abortion, except to protect her health. It died quickly, even in the strongly anti-choice Missouri legislature.\36\ And he supported yet another clearly unconstitutional bill that would have banned abortions in 18 specific circumstances, with no exception for rape or incest. It, too, was unable to garner needed support from anti-choice legislators.\37\ -

Marcia Greenberger

In short, John Ashcroft has been driven by a set of rigid and radical views, he has read the law through glasses heavily tinted by his own agenda, and he has used his public offices to relentlessly pursue that agenda. Mr. Ashcroft's Past Performance and Use of Public Office Demonstrates That as Attorney General He Would Use His Vast Powers to Subvert Women's Legal Rights

Marcia Greenberger

The Attorney General of the United States has a vast array of powers at his disposal. These include advising the President, the executive branch departments, and Congress on questions of constitutional and statutory law; representing the United States and its interests before the Supreme Court, with a degree of influence that is second to none on what cases the Court hears and how it decides them; enforcing a broad range of federal statutes, including the federal civil rights laws, as well as administering and initiating numerous programs related to law enforcement and the administration of justice; and advising and assisting the President on the selection of nominees to serve on the federal courts, including on the Supreme Court. All of these powers are exercised, in some cases largely outside the light of public or judicial scrutiny, and history has shown that they can be used to subvert the office in the service of an extreme agenda. Based on John Ashcroft's record, there is ample reason to fear that if given the opportunity, he will use the powers of the Attorney General to further his extreme agenda in ways that would have devastating consequences to people across the country -- and to women in particular -- for years to come.

Marcia Greenberger

a. Opinions and Advice. The Attorney General is charged with the duty to give "advice and opinion upon questions of law" throughout the entire Executive Branch when requested by the President or any executive department.\38\ This includes rendering advice on the constitutionality of proposed legislation and the legality of executive branch actions. The "advice and opinion" function is widely regarded as quasi-judicial,\39\ and often it is rendered behind the scenes without any public scrutiny or oversight. Yet the outcome of major policy debates may turn on the Attorney General's advice -- that advice can determine whether a bill introduced in Congress receives the backing of the Administration; whether a bill Congress has passed is signed into law or vetoed; or whether a proposed Executive Order is a valid exercise of the President's power, or an executive department's actions are legal. The stakes are large, and the public must have confidence that the Attorney General's advice is honest and balanced and based on a reasonable reading of the law. -

Marcia Greenberger

b. Representing the United States in the Supreme Court. The representation of the United States and its interests before the Supreme Court is a critical duty of the Attorney General, and one that has a huge impact. Historically, the Justice Department has been the most frequent and successful litigator before the Supreme Court.\40\ The Justice Department's institutional standing before the Court allows the Attorney General to influence the Supreme Court in a way that no other litigant can. Issues that appear on the agenda of the Attorney General will, more often that not, be heard by the Supreme Court.\41\ So great is the Department's influence in setting the Court's agenda that one Solicitor General wrote, "The power of the Supreme Court is limited to deciding the cases brought before it. It is the Attorney General who decides what the Supreme Court will decide -- at least in the area of public issues.\42\ And of the cases decided on the merits, more often than not the Court adopts the position advanced by the Attorney General." \43\ -

Marcia Greenberger

c. Enforcing the Law and Administering and Initiating DOJ Programs. The Attorney General has the responsibility to enforce a wide range of laws, and administer and initiate a broad array of programs, including many that are central to guaranteeing equal rights and opportunities for women. These responsibilities include enforcing the civil rights laws prohibiting sex discrimination in employment, education, and in many other spheres of life. They include defending constitutional affirmative action programs that are critical to breaking down barriers to opportunity for women business owners and other women in the workplace. They also include administering Justice Department programs and dispensing millions of dollars in grants to address the continuing problem of violence against women through the Violence Against Women Office. And they include enforcing the Freedom of Access to Clinic Entrances Act (FACE), the federal law that has proven highly effective in diminishing acts of violence and obstruction targeted at health care providers that offer reproductive health services to women.\44\ -

Marcia Greenberger

d. Screeniniz and Evaluating Supreme Court Justices and Other Federal Judges. The Attorney General carries the major responsibility for screening and evaluating nominees to serve as federal judges at every level, including on the Supreme Court. This role includes identifying potential judicial candidates, thoroughly screening and evaluating all those under consideration, and preparing candidates for appointments.\45\ Before the names of candidates ever surface in the public eye or come before the Senate for confirmation, they have passed through the Attorney General's vetting process. This responsibility could not be weightier, given that judicial appointments last for a lifetime. -

Marcia Greenberger

Many of the powers and responsibilities summarized above are exercised in ways that escape public, Congressional, or judicial scrutiny. For example, decisions not to bring enforcement actions are made out of the public eye, and they generally escape judicial review, as the courts are reluctant to second-guess prosecutorial decisions. That means that an Attorney General who has misgivings about a law, or who misreads what is necessary to support an enforcement action, has almost a free hand in deciding whether or when to bring suit, what precise charges to make, or whether to dismiss a proceeding once it has been brought.\46\ The Justice Department can also refuse to authorize litigation by other Government departments and agencies.\47\ This kind of non-enforcement strategy can prevent policies that an Administration disfavors from ever reaching the courts.\48\ Another form of dangerous non-enforcement occurs when the Department refuses to defend, or decides to attack, a statute passed by Congress that has been challenged in the courts. The Attorney General has, as well, virtually unchecked discretion in the manner in which he renders his opinions and advice on legal questions, in the decisions he makes in the course of representing the United States in the Supreme Court, and in his selection of judicial nominees. -

Marcia Greenberger

History has shown that, given the scope of the Attorney General's powers, and the large degree of unfettered discretion the Attorney General has in exercising them, there is ample opportunity for an Attorney General to misuse the office if disposed to do so. We saw this all too clearly when William Bradford Reynolds was put in charge of the Civil Rights Division of the Justice Department in 1981. The number of suits brought to enforce disability discrimination, school desegregation, fair housing, and voting rights laws, for example, all plummeted. Disability discrimination suits dropped from 29 in 1980 to zero in 1981, the first year of his tenure, and to only three during the entire next three years.\49\ Voting rights cases dropped from 12 in 1980 to two during the next four years.\50\ -

Marcia Greenberger

In light of Mr. Ashcroft's long record of hostility to laws and protections of central importance to women, and his record of aggressive actions consistent with that hostility, there is good cause to fear that if he becomes Attorney General, he will use the many powers at his disposal to weaken and roll back advances in the law that women have fought long and hard to secure. To further his anti-choice, anti-family planning agenda, he could, for example, ask the Supreme Court to overturn Roe v. Wade (as the Reagan and Bush Administrations did no fewer than five times) \51\; give opinions in favor of the constitutionality of legislation or executive actions that would severely limit abortion or access to contraceptives; refrain from vigorous enforcement of clinic access and clinic violence cases under FACE; curtail the efforts of the Justice Department's Clinic Violence Task Force to guarantee the safety of abortion providers and the unimpeded access of women to reproductive health clinics where abortions are performed; select nominees to the federal courts, including the Supreme Court, that satisfy his litmus test of placing on the bench only those who firmly oppose Roe v. Wade; and make appointments to the Department of Justice of individuals who are similarly committed to these actions. Indeed, it is hard to question that Mr. Ashcroft will do exactly these things if he is entrusted with the powers of the office of Attorney General. The concern about Supreme Court appointments is particularly grave in light of the prospect of Supreme Court vacancies during the next four years. -

Marcia Greenberger

Mr. Ashcroft's track record on issues of importance to women other than Roe v. Wade and the right to choose raises equally profound concerns -- from his opposition to the ERA and pursuit of NOW in court; to his vetoes of legislation like maternity leave, minimum wage, domestic violence, and child care laws; to his abysmal record on the appointment of women; to his votes in Congress against affirmative action and other civil rights laws; to his obstruction of the confirmation of qualified women to the federal bench. With this record, women of this country simply cannot have confidence that Mr. Ashcroft will support, rather than starve, Justice Department programs in the Violence Against Women Office that protect women from violence in their homes and on the streets; that he will defend valuable affirmative action programs that meet constitutional standards of scrutiny; that he will evaluate women for nomination to the federal judiciary based on a fair reading of their records and qualifications; or that he will strongly enforce the federal civil rights laws that are essential to eliminating discrimination in the workplace, in our nation's schools, in housing, in credit, and in so many other critical areas of life. Conclusion

Marcia Greenberger

At stake in this confirmation debate is not only the interpretation and enforcement of fundamental constitutional rights and statutory protections, and not only the selection of judges and Supreme Court justices -- as vitally important as those issues are to the future of this country. At stake, as well, in this nomination, is the very ability of the public to have confidence in our system of justice, as embodied in all three branches of government. It is essential, of course, to have confidence that the Justice Department will fairly interpret and enforce the law on behalf of the entire Executive Branch, and to have confidence that the judiciary, including the Supreme Court, is comprised of individuals selected for their capacity to review and apply the law in a fair and reasoned manner. But it is also essential for the public to have confidence that the Senate will carry out its constitutional duty to give advice and consent with as much seriousness of purpose as a position such as this one demands, even when a former colleague's nomination is at issue. In exercising this solemn duty, we urge you to oppose the confirmation of this nominee, for we believe that if John Ashcroft becomes Attorney General of the United States, women of this country will see their core legal rights and constitutional protections stripped away. Thank you.

Patrick Leahy

Thank you, Ms. Greenberger.

Patrick Leahy

Ms. Campbell, as always, it is good to have you here. Please go ahead with your testimony.

Collene Campbell

Thank you, honorable Senators. This is a tough one for me, but I'm going to get through it.

Collene Campbell

My only son is dead. He's been murdered because of a flawed justice system. A weak system allowed the release of a lifer from prison. Yes, the inmate was given another chance, that one more chance, and that opportunity was given to kill my son. We need an Attorney General who will strongly uphold the intent of the law and our Constitution, and help protect the people from crime.

Collene Campbell

My name is Collene Thompson Campbell. Just last month I completed my second term as mayor in the beautiful city of San Juan Capistrano in California. I am a former chairman of POST; that's the Peace Officer Standards and Training Commission. I also serve on the California Commission on Criminal Justice. I did not buy in to ever being a victim of crime.

Collene Campbell

Today I have been asked to represent and speak for many people, including my friend, and great crime fighter, John Walsh of "America's Most Wanted." He badly wanted to be here today. I've been requested to represent and speak on behalf of 12 major California crime victims' organizations, and the hundreds of thousands of crime victims that those organizations represent. We strongly and unequivocally support the confirmation of John Ashcroft as the next Attorney General of the United States of America. Throughout his long career he has shown great heart, and he has worked hard to lessen the devastation which victims are forced to endure.

Collene Campbell

My own journey into hell began with the murder of our only son, Scott. Because we were only the mom and dad, we had no rights. We were forced to sit outside the courtroom on a bench in the hall, like dogs with fleas, and during the 7 years encompassing the three trials of our son's murderers, that's where we sat. We were excluded while the defendants' families were allowed to be inside and follow the trial and give support to the killers.

Collene Campbell

The murder of our son was brutal, and our treatment at the hands of the justice system was inhumane, cruel and barbaric. Nothing in our life had prepared us for such injustice.

Collene Campbell

Long ago John Ashcroft realized the need for balanced justice and has worked toward that end. He understands the victims in our country must no longer suffer the indignities that many have been forced to endure. John Ashcroft stands for fairness, law, order and justice. He stands for balancing the rights of the accused with the rights of the victims and the law abiding. He stands for constitutional rights for crime victims.

Collene Campbell

Throughout this great country we need unselfish courage. We need John Ashcroft's strong conviction in the fight against crime, and we need him to further victims' rights. Victims, God bless them, deserve notice, just like the criminal, the right to be present, and the right to be heard at critical stages of their case. They deserve respect and concern for their safety. They deserve a speedy trial, every bit as much of the defendant. Victims deserve, at the very least, equal rights to the criminal.

Collene Campbell

My only sibling, my brother, Mickey Thompson, and his wife were also murdered. This case is being actively pursued, and I have great faith that this case will soon be brought to trial. I only hope that our family can endure the justice system again.

Collene Campbell

John Ashcroft will fight for legal rights and true remedies for crime victims. We urge you to support John Ashcroft's confirmation. No one knows who is going to be a victim.

Collene Campbell

And with your -- and if you'll permit me, my words today are dedicated to the memory of Brian Campbell, my 17-year-old grandson who died 9 days ago. And it is really tough to be here, and if this wasn't so darn important, I wouldn't be here. But together Brian and I believed, as long as we have courage, today will be beautiful; as long as we have memories, yesterday will remain; as long as we have purpose, tomorrow will improve.

Collene Campbell

Thank you, Senators, for allowing me to speak, and I'm sorry I choke up.

Collene Campbell

My only son is dead, murdered, because of a flawed justice system. A weak justice system released a lifer from prison. Yes, the inmate was given "one more" chance, and an opportunity to kill our son. We need an Attorney General who will strongly uphold the intent of the law and our constitution in this ever escalating cycle of violence.

Collene Campbell

My name is Collene Thompson Campbell. Just last month, I completed my second term as Mayor of the City of San Juan Capistrano in California. I am a former Chairman of POST, (Peace Officer Standards and Training Commission), and I also serve on the California Commission on Criminal Justice.

Collene Campbell

Today, I have been asked to represent and speak for many people, including my friend and great crime fighter, John Walsh, host of "America's Most Wanted," who wanted to be here today. I have been requested to represent and speak on behalf of the twelve major California crime victims organizations and the hundreds of thousands of crime victims they represent. We strongly and unequivocally support the confirmation of John Ashcroft as the next Attorney General of the United States of America. Throughout his long career; he has worked to reduce the devastation which victims are forced to endure.

Collene Campbell

My own journey into hell began with the murder of our only son, Scott. Because, we were "only" the Mom and Dad, we had no rights. We were forced to sit outside the courtroom on a bench in the hall all during the seven years, encompassing three trials for our son's murderers. We were excluded, while the defendants' family was allowed inside to follow the trial and give support to the killers. The murder of our son was brutal. Our treatment at the hands of the justice system was inhuman, cruel and barbaric. Nothing in our life had prepared us for such injustice.

Collene Campbell

Long ago, John Ashcroft realized the need for balanced justice and has worked toward that end. He understands the victims in our country must no longer suffer the indignities that many have been forced to endure. John Ashcroft stands for fairness, law, order and justice. He stands for balancing the rights of the accused with the rights for the victims and the law-abiding. He stands for constitutional rights for crime victims.

Collene Campbell

My very good friend, John Gilles, a former police lieutenant, a black man, would have liked to have been here with me today. His daughter was also murdered. The two of us wanted to "point out" that our gender, nor our race, made a difference in this hearing, which should be about justice and fair treatment to all. We victims, feel the hearing should not be about politics and party rhetoric. To be truthful, when one has lost so very much, it hurts to witness that type of behavior at this very important confirmation.

Collene Campbell

Throughout this great country, we need unselfish courage. We need John Ashcroft's strong conviction in the fight against crime and to further victims' rights. Victims deserve notice, the right to be present and the right to be heard at critical stages of their case. They deserve respect and concern for their safety; they deserve a speedy trial, every bit as much as the defendant. Victims deserve, at the very least, equal rights to the criminal.

Collene Campbell

My only sibling, my Brother, Mickey Thompson and his wife, Trudy, were also murdered. That case is being actively pursued and I have faith that the case will soon be brought to trial. . .I only hope that our family can again endure the justice system.

Collene Campbell

John Ashcroft will fight for legal rights and true remedies for crime victims. We urge you to support John Ashcroft's confirmation.

Collene Campbell

If you will permit me, my words today are dedicated to the memory of Brian Campbell, my seventeen-year-old Grandson who died just nine days ago. Together we believed: As long as we have courage, today will be beautiful, As long as we have memories, yesterday will remain, As long as we have purpose, tomorrow will improve.

Patrick Leahy

Ms. Campbell, you have no need to apologize for being choked up. A former Senator and mentor of mine when I came here said a person who has no tears, has no heart.

Collene Campbell

They must think I have a lot of tears. They got me the whole box. Thank you for saying that.

Patrick Leahy

And so --

Collene Campbell

Patrick Leahy

Well, those of us who have been prosecutors have some sense of what victims go through, and it is a terrible thing. I don't think anybody who has been -- who has not either been a victim or been intimately involved in the criminal justice system knows how the victims get victimized over and over and over again.

Patrick Leahy

At the request of Senator Hatch, and then following the normal courtesy, he has advised me that Congressman Watts and Congressman Hulshof -- I know Congressman Hulshof is here because I spoke to him earlier -- are here. This was the panel that was going to be on last night, and because of some miscommunication, some members were able to be here and some were not. And now the further miscommunication, the last member of that panel is not here, but following the normal tradition in the Congress, of putting Members of Congress on as they are available, I am going to ask the panel here to step down, rejoin us after lunch, and we will go back to your questions.

Patrick Leahy

And we will call Congressman Watts and Congressman Hulshof now. When Congressman Clyburn gets back, we will have him, but we will go back to questions after lunch.

Patrick Leahy

We have a very large room here, and I know that there are some people who are leaving and some people coming in.

Patrick Leahy

We have two distinguished members of the House of Representatives who deserve to be heard. We will hear first from Congressman Watts, who is a member of the Republican leadership, Majority leadership in the House of Representatives.

Patrick Leahy

As I mentioned earlier, I have received a letter from Congressman Hulshof. While I did not agree to his basic request, I think I misunderstood the tone of the request. I state that not only for the Congressman, but for any member of his family who may be watching, that in 26 years here, I have tried -- I believe I have a reputation of always trying to extend whatever courtesy is possible to all members of both the House and the Senate of either party.

Patrick Leahy

Congressman Watts, I understand we will begin with you as a member of the Republican leadership.

Patrick Leahy

STATEMENT OF HON. J.C. WATTS, JR., A REPRESENTATIVE IN CONGRESS

a Watts

Chairman Leahy, Ranking Member Hatch, Senators of the Judiciary Committee, thank you for affording me an opportunity to address the nomination of Senator John Ashcroft to be the next Attorney General of the United States.

a Watts

Let me say here at the outset that, as I have observed these hearings from time to time over the last two and a half days, that any man or woman, Republican or Democrat, liberal or conservative, who would sit through this process for 3 days and have bombs thrown at him, should be confirmed for whatever.

a Watts

And, Mr. Chairman, John Ashcroft is a man of the highest integrity. I have worked with him over the last five and a half years in the renewal alliance, putting together legislation targeting poor and under-served communities, the home ownership, savings, job creation, and capital formation. And by the way, President Clinton signed that legislation into law about a month and a half ago, the most comprehensive piece of poverty legislation ever to go through the House and the Senate.

a Watts

I have campaigned with Senator Ashcroft in St. Louis. I've known him for the past 6 years, and I have never known Senator Ashcroft to be a racist, nor have I ever detected anything but dignity and respect for one's skin color from John Ashcroft.

a Watts

He's a man of principle. He has been scrupulously put through an inquisition of mammoth proportion, and it is safe to say that this Committee has looked into everything dealing with the career and character of John Ashcroft. We all know that no one is going to please all of you all the time, but John Ashcroft takes defending and upholding the law seriously, and I believe that's what matters the most.

a Watts

The responsibility of the Attorney General is to defend and uphold the law, not to make the law. It is the responsibility of us, the Congress of the United States, to make the law.

a Watts

As I said earlier, I have watched bits and pieces of these hearings during the last two and a half days. I haven't watched them all. Believe it or not, Little League, soccer and junior varsity basketball games continue in spite of these very important hearings.

a Watts

There is not a lot I can say today that hasn't already been said during these proceedings. However, I will say I am delighted that outside groups aren't making the determination on Senator Ashcroft.

a Watts

I heard Senator Biden say yesterday afternoon that he did not trust many of the interest groups that's gotten involved, and if Senator Biden was here today, I would say to him, "I agree with you. Neither do I." I've been blind-sided by them before, and so many of these groups totally disregard the facts. Not only do they want their own opinion, they want their own facts. So, again, if Senator Biden was here, I would say to him that I can relate to what he was talking about yesterday.

a Watts

I am delighted that people who know Senator Ashcroft best will make the call on this confirmation, and in your deliberations, I would ask you to consider his qualities, his qualifications and his integrity.

a Watts

Last Monday, on January 15th, after observing Dr. King's birthday, my 11-year-old daughter and I were watching the Disney movie, "The Fox and the Hound." And I watched the movie for about an hour, and then the movie watched me as I went to sleep on it. However, I've seen it 23 times, and it's must, must-see viewing for everybody.

a Watts

The story is Copper, the hound puppy, and Tod, the orphaned fox, they became the best of friends. They did everything together. They laughed and they played together to no end. Then 1 day Copper the hound and Tod the fox found themselves all grown up. Tod wanted to get together with Copper to have some more fun and relive the good old days, and Copper's heart seemed to skip a beat when he had to say to Tod, "I can't play with you any more. I'm a hunting dog now." In other words, "I can't be your friend any more. Forget we were the best of friends. Forget we laughed together and played together. Forget all those great times together and all those other things. Forget about all of that. I'm a hunting dog now."

a Watts

Well, I notice that any time we have a confirmation, the hunting dogs come out. We have them on the Republican side, we have them on the Democrat side. Members of the Committee, I'm not saying that John Ashcroft has been best of friends with all of you. However, over the last 6 years, you've seen his heart. You know him. You've observed him up close and personal. You know he's not a racist as some would suggest. You know he's not anti-woman, as some would suggest.

a Watts

Yes, you know that just like Senator Lieberman, John Ashcroft's faith is very important to him. They both never want their faith to be offensive to anyone, yet they never apologize for it.

a Watts

You have observed Senator Ashcroft to be a man of compassion, strength and integrity. He is extremely qualified. He is eminently qualified to be the next Attorney General of the greatest nation in all the world.

a Watts

Obviously, this decision will rest with you, the Senators, but I encourage your support for Senator John Ashcroft as the next Attorney General to uphold the laws and the Constitution of the United States, so help him God. Thank you very much, Chairman Leahy.

a Watts

Statement of Hon. J.C. Watts, Jr. a Representative in Congress from the State of Oklahoma Chairman Leahy, Ranking Member Hatch, senators of the Judiciary Committee, thank you for affording me the opportunity to address the nomination of Senator John Ashcroft to be attorney general of the United States.

a Watts

Let me say here at the outset that any man or woman, Republican or Democrat, liberal or conservative, that would sit through this process for three days and have bombs thrown at him should be confirmed for whatever.

a Watts

Mr. Chairman, John Ashcroft is a man of the highest integrity. I have worked with him in the renewal alliance, putting together legislation targeting poor and underserved communities for homeownership, savings, job creation and capital formation. (The president signed this legislation into law about a month ago.)

a Watts

I have campaigned with him in Saint Louis and have known him for six years. I have never known him to be a racist nor have I ever detected anything but dignity and respect for one's skin color from John Ashcroft.

a Watts

He is a man of principle. He has been scrupulously put through an inquisition of mammoth proportion and it is safe to say this committee has looked into everything dealing with the career and character of John Ashcroft. We all know that no one is going to please all of you all of the time. But John Ashcroft takes defending and upholding the law seriously, and that is what matters most.

a Watts

The responsibility of the attorney general is to defend and uphold the law -- not to make the law. It is the responsibility of Congress to make law.

a Watts

I have watched bits and pieces of these hearings during the last two, two-and-a-half days. I haven't watched all of them -- believe it or not, Little League, soccer and junior varsity basketball games go on in spite of these very important hearings.

a Watts

There is not a lot I can say today that hasn't already been said during these proceedings. However, I will say I am delighted that outside groups aren't making the determination on Senator Ashcroft. I heard Senator Biden say yesterday that he did not trust many of the interest groups. Senator Biden, I agree with you. Neither do I. I have been blind-sided by them before and so many of these groups totally disregard facts. Not only do they want their own opinion, they want their own facts. So, Senator Biden, I can relate to what you said yesterday.

a Watts

I am delighted that people who know Senator Ashcroft best will make the call on his confirmation, and in your deliberations I would ask you to consider his qualities, his qualifications and his integrity.

a Watts

Last Monday, after observing Doctor King's birthday, my elevenyear- old daughter and I were watching the Disney movie, "The Fox and the Hound." I watched the movie for about an hour -- and then the movie watched me as I went to sleep on it. However, I've seen it twenty-three times. This is a must-see movie.

a Watts

The story is: Copper (Hound Puppy) and Tod (the orphaned Fox) became the best of friends. `Did everything together. They laughed and played together to no end. Then one day Copper (Hound) and Tod (the Fox) were grown up. Tod wanted to get together with old Copper and Copper's heart missed a beat in having to tell Tod, "I can't play with you anymore, I'm a hunting dog now."

a Watts

In other words, I can't be your friend anymore. Forget we were the best of friends. Forget we laughed together and played together. Forget all those great times together and all those other things.

a Watts

Well, members of the committee, I'm not saying John Ashcroft has been best friends with all of you, however, over the last six years you have seen his heart. You know he is not a racist, as some would suggest.

a Watts

Yes, you know that just like Senator Lieberman, John Ashcroft's faith is important to him. They both never want their faith to be offensive to anyone, yet they never apologize for it.

a Watts

You have observed Senator Ashcroft to be a man of compassion, strength and integrity.

a Watts

He is extremely qualified to be the next attorney general of the greatest nation in the world.

a Watts

Obviously, this decision will rest with the Senate, but I encourage your support for John Ashcroft as the next attorney general to uphold the laws and the Constitution of the United States, so help him God.

a Watts

Thank you, Mr. Watts. I would state parenthetically that I am 60 years old, quite a bit older than you are. Our children came along before we had VCRs as youngsters. By the time we had them, they were old enough that they did not want me around to see what they were watching, so I did not have the chance to memorize these. I now have a soon- to-be 3-year-old grandson. If you would like me to tell you the whole script of "Thomas the Train", every song, I can do it in my sleep, and often have.

Patrick Leahy

Patrick Leahy

Mr. Hulshof.

Kenny Hulshof

Mr. Chairman, thank you. I appreciate very much the invitation to be here, and as you alluded to just a moment ago, I'm sure my dear mother back in Missouri appreciates your kind words today, especially in light of the little brouhaha that occurred last night. I do appreciate the change to be with you.

Patrick Leahy

I assure your mother that you are one of the hardest-working and most valued members of the Congress.

Kenny Hulshof

I appreciate that, Mr. Chairman. That's high praise.

Kenny Hulshof

Members of the Committee, as pleased and honored as I am to be here today with my good friend and colleague, J.C. Watts, my appearance here today is not as a sitting member of the U.S. House of Representatives.

Kenny Hulshof

And, Mr. Chairman, if it is permissible, I would like to have my entire written statement submitted into the record, so that I could perhaps address some of the points that have come before this Committee in the last 2 days.

Patrick Leahy

It will be.

Kenny Hulshof

I sat through and listened very closely to Judge White's testimony today, and I found it very compelling and very sincere, no less compelling and no less sincere than the testimony that you heard from your former colleague, I believe, John Ashcroft over the last 2 days. I do not know Judge White personally. I know him from the pages of the opinions that he has written. I know probably, I presume, that he knows me through the many thousands of pages of court transcripts that I had the occasion to participate in, criminal trials back in Missouri, and I am not here in any respect to cast aspersions. I am a member of good standing in the Missouri bar, and I'm very watchful of my comments toward a sitting member of the Judiciary.

Kenny Hulshof

However, as the co-prosecutor in the James Johnson case, which has received such national attention, and I think it's received national attention, not because of the gruesomeness of the facts of a convicted multiple cop killer, but because, as my friend J.C. has alluded to, these horrendous charges that John Ashcroft's vote against Judge White was based on other than legal grounds. These comments or insinuations, either overtly or not so overtly, of racial motivations, have me, as John's friend and as a Missourian, deeply troubled. And so let me, if I can, as a fact witness, talk a little bit about this particular criminal case.

Kenny Hulshof

I was a special prosecutor for the Missouri Attorney General for a number of years and was assigned to assist the locally elected prosecuting authority, John Kay, in Moniteau County, back in -- when these crimes occurred in 1991. Mr. Chairman, you all have talked at length about those facts, and I set them out in my written statement, but I want to just focus on some things perhaps to give you a sense of gravity about what this case meant to this small rural community.

Kenny Hulshof

In early December 1991 Moniteau County Deputy Les Roark was dispatched to a disturbance call in rural Moniteau County, and as anyone in law enforcement can tell you, those are some of the most difficult cases to respond to because you never know the situation that you are being injected to.

Kenny Hulshof

Well, after Deputy Roark assured himself that this domestic quarrel had ended at the James Johnson residence, and as he turned to retreat to go to his waiting patrol car, James Johnson whipped out a .38 caliber pistol from the waistband of his pants and fired two shots into the back of the retreating officer. Johnson then went back into the home, sat down where he could hear the moans of the officer clinging valiantly to life, laying face down on the gravel driveway outside his home. At that point Johnson then got up from the table, walked outside, pointed his gun over the fallen officer, and pulled the trigger one last time in an execution-style killing.

Kenny Hulshof

And the thing about this particular crime that is particularly offensive, is that as they say in the law enforcement business, the officer, though armed, never cleared leather. His gun remained strapped in his holster.

Kenny Hulshof

Shortly after that James Johnson got into his vehicle and negotiated 10 or 12 miles of winding road, looking for the sheriff of the county, Kenny Jones. He knew where the sheriff lived, and as luck would have it, Sheriff Jones was not at the residence, but the sheriff's wife, Pam was. And again, as fate would have it on that night, Mrs. Jones was leading a group of her church friends in the Christmas program. And if I can try to, Mr. Chairman, paint a visual picture for you. Imagine a normal living room somewhere in America, with a woman seated at the head, and women on folding chairs around her in the living room, with Pam Jones' 8-year-old daughter, Lacy, at her knee. Christmas decorations adorn the living room, and on a table next to the window, brightly wrapped Christmas packages waiting to be exchanged.

Kenny Hulshof

What you cannot see in that picture, however, just outside that window, James Johnson lay in wait with a .,22 caliber rifle, and from his perch shot five times inside the house, killing, gunning down Pam Jones in cold blood in front of her family.

Kenny Hulshof

If the Chairman would permit, he is not here to testify today, but if I might be permitted to single out Pam Jones' husband, who made the trip here today, Sheriff of Moniteau County, Kenny Jones. And may I ask him to stand, Mr. Chairman?

Patrick Leahy

There is a statement that Sheriff Jones has submitted, and perhaps if time permits at the conclusion, there are a couple of excerpts that I might like to exercise, but, please, I hope you would take time to examine the entirety of Sheriff Jones' written testimony, particularly as it points to the dispute about this letter from law enforcement and who was the initiating body in that regard, and I'll move on in the interest of time.

Kenny Hulshof

Patrick Leahy

I direct the staff to make copies for each Senator, and make sure a copy is given to each member of the panel.

Kenny Hulshof

Mr. Chairman, without further delving into the facts because I think, as most of you have indicated through these days, that you have read the Supreme Court opinion where Judge White dissented and he was the sole dissent.

Kenny Hulshof

But what I do want to focus on is the record regarding assistance of counsel, because apparently, as I listened to Judge White this morning, that was his sole basis for voting to overturn and reverse this -- these four death sentences for these four crimes. Actually, there were two other victims who had fallen victim to Mr. Johnson that night, and a fifth officer who was wounded seriously, who miraculously survived. The jury in that county found four counts of first degree murder, with a corresponding death sentence on each of those counts of murder.

Kenny Hulshof

The points I'd like to raise briefly about the qualify of James Johnson's representation is this. He hired counsel of his own choosing. He picked from our area in mid Missouri what we've referred to -- as I refer to as a dream team. And, Senator Sessions, as you pointed out earlier, the resumes of these three individuals who were experienced attorneys in litigation as well as criminal law, attorneys who had tried a capital murder case together. There was a finding by another court that they provide highly skilled representation as they tried to deal with these very unassailable facts, this very strong case that the prosecution had. There was a detailed confession Mr. Johnson had given to local law enforcement officers. There were other incriminating statements that he had made to lay witnesses. We had circumstantial evidence, including firearms identification, a host of other factors.

Kenny Hulshof

And against this backdrop of a very tough prosecution case, these three defense attorneys labored mightily to try to provide an insanity defense, post-traumatic stress disorder, commonly referred to as the Vietnam Flashback Syndrome. And without question -- and again, perhaps with just a further comment, I defended a capital murder as a court-appointed public defender, and then after I switched sides and became, as you, Mr. Chairman, on the side of law enforcement, became a prosecuting attorney, over the course of my career, I think I prosecuted some 16 capital murder cases in Missouri, and I can tell you without question that this team of defense attorneys were very able, and provided very skilled adequate representation as the law would require.

Kenny Hulshof

Finally, regarding the point -- and I know the Chairman's been gracious with my time -- what I would like to do is read just a couple of the excerpts, as Sheriff Jones is here and will not be called as a witness, but particularly again on this point of the letter from law enforcement authorities.

Kenny Hulshof

Says Sheriff Jones: "As you know, much has been said about John Ashcroft and his fitness for this office. I, for one, support his nomination and urge this Committee to support him as well. Last year Senator Ashcroft was unjustly labeled for his opposition to the nomination of Judge Ronnie White to the Federal District Court. This one event has wrongly called into question his honor and integrity. Be assured that Senator John Ashcroft had no other reason that I know about to oppose Judge White except that I asked him to. I opposed Judge White's nomination to the Federal bench, and I asked Senator Ashcroft to join me because of Judge White's opinion on a death penalty case."

Kenny Hulshof

Moving the page 3, again Sheriff Jones: "In his opinion, Judge White urged that Johnson be given a second chance at freedom. I cannot understand his reasoning. I know that the four people Johnson killed were not given a second chance. When I learned that Judge White was picked by President Clinton to sit on the Federal bench, I was outraged", says Sheriff Jones. "Because of Judge White's dissenting opinion in the Johnson case, I felt he was unsuitable to be appointed for life to such an important and powerful position. During the Missouri Sheriffs' Association Annual Conference in 1999, I started a petition drive among the sheriffs to oppose the nomination. The petition simply requested that consideration be given to Judge White's dissenting opinion in the Johnson case as a factor in his appointment to the Federal bench. 77 Missouri sheriffs, both Democrats and Republicans signed the petition, and it was available to anyone who asked."

Kenny Hulshof

"Further, I asked", says Sheriff Jones, "I also asked that the National Sheriffs' Association support us in opposing Judge White's nomination. They willingly did so, and I am grateful that they joined us and wrote a strong letter opposing Judge White's nomination."

Kenny Hulshof

And with that, I appreciate the deference of the Chairman, I would be happy to answer questions about this case or others.

Kenny Hulshof

State of Hon Kenny Hulshof, a Representative in Congress from the State of Missouri I would like to thank Chairman Leahy and Ranking Member Hatch for the opportunity to testify before this committee.

Kenny Hulshof

I fully support President-elect Bush's decision to nominate Senator John Ashcroft to the position of Attorney General. His past service to the people of my home state of Missouri as Attorney General, Governor and Senator give him the experience and knowledge to be an effective agent of justice for all Americans.

Kenny Hulshof

I am not here today as a U.S. Representative from Missouri's Ninth District. My appearance here is to share with you my unique knowledge of the case of State of Missouri v. James Johnson.

Kenny Hulshof

From February of 1989 until January of 1996,1 served as a Special Prosecutor for the Missouri Attorney General's Office. In this capacity, my duties included the prosecution of politically sensitive or difficult murder cases across the State of Missouri. I handled cases in 53 Missouri counties and have tried and convicted violent criminals in more than 60 felony jury trials. In January, 1992, I was assigned as co-counsel in the prosecution of the Johnson case.

Kenny Hulshof

As you know, the Johnson case has taken on national prominence, but not because it involves a convicted cop killer. It has become a focal point in this process due to the strong disagreement that John Ashcroft and some law enforcement groups had with Missouri Supreme Court Judge Ronnie White's sole dissent on the appeal of this case.

Kenny Hulshof

You are measuring John Ashcroft's ability to be the nation's Attorney General by examining his record. In the same manner, John Ashcroft measured Ronnie White's ability to be a federal jurist by scrutinizing his record and published opinions -- not his race as some have charged. John Ashcroft has testified that he had serious reservations about Judge White's opinions regarding law enforcement.

Kenny Hulshof

Let me share with you the facts of the Johnson case:

Kenny Hulshof

In December of 1991, Moniteau County Deputy Sheriff Les Roark responded to a domestic disturbance call at the home of James Johnson in rural Missouri. After assuring himself the domestic quarrel had ended, Deputy Roark turned to return to his waiting patrol car. James Johnson whipped a .38 caliber pistol from his waistband of his pants and fired twice at the retreating officer. Johnson, realizing that Roark was clinging valiantly to life, walked over to the fallen officer and shot him again execution-style.

Kenny Hulshof

He next negotiated the dozen or so miles to the home of Moniteau County Sheriff Kenny Jones. Peering through the window, he saw Pam Jones, the sheriff's wife. She was leading her church women's group in their monthly prayer meeting in her family's living room, her children at her knee. Using a .22 caliber rifle, Johnson fired multiple times through the window, hitting her five times. She was gunned down in cold blood in front of her family.

Kenny Hulshof

I wish I could tell you that the carnage soon ended. Instead, James Johnson proceeded to the home of Deputy Sheriff Russell Borts. Displaying the methodical demeanor of a calculating killer, Johnson shot Deputy Borts four times through a window as Borts was being summoned for duty via telephone. Miraculously, Borts survived. Cooper County Sheriff Charles Smith and Miller County Deputy Sandra Wilson were not as fortunate. They died in a hail of bullets when Johnson ambushed them outside the sheriff's office.

Kenny Hulshof

As a result of Johnson's rampage, three dedicated law enforcement officials were dead, one was severely injured and Pam Jones, a loving wife and mother, had been slaughtered.

Kenny Hulshof

Mr. Chairman, I wish to clarify a few of the points raised during yesterday's hearing regarding the quality of James Johnson's representation at trial. Mr. Johnson hired counsel of his own choosing. He chose a team of three experienced defense attorneys who possessed substantial experience in litigation and criminal law. The three litigants had tried a previous capital case together.

Kenny Hulshof

The record conclusively establishes that counsel launched a wide- ranging investigation in an effort to locate veterans who had served with the accused in Vietnam. Counsel hired and presented three nationally-renowned mental health experts on the relevant issue of posttraumatic stress disorder.

Kenny Hulshof

The evidence of guilt, however, was unassailable. Based on the strength of a detailed confession by the accused to law enforcement officers, incriminating statements to lay witnesses, eyewitness accounts to one of the murders and circumstantial evidence, including firearms identification, James Johnson was convicted by a jury of four counts of murder in the first degree. The jury later unanimously recommended a sentence of death on each of the four counts.

Kenny Hulshof

After a lengthy post-conviction hearing on the adequacy of counsel, Circuit Judge James A. Franklin, Jr. found that Johnson's attorneys devoted a significant period of time and expense to his case, including a substantial attempt to develop and present a mental defense. The court found as a matter of law that James Johnson received skilled representation throughout his trial. The case was then automatically appealed to the Missouri Supreme Court, where the convictions and sentences were upheld 4-1. Judge White's lone dissent focused on inadequate assistance of counsel at trial. As I have stated and the record indicates, this is clearly not the case.

Kenny Hulshof

I have been deeply troubled during these confirmation proceedings by statements insinuating, overtly or otherwise, that John Ashcroft is a racist. More to the point, there have been allegations made that John Ashcroft's rejection of Judge Ronnie White's nomination to the federal district court was racially motivated. As a Missourian, I am offended by these baseless claims.

Kenny Hulshof

It is my belief that members of this distinguished panel and members of the entire Senate take the constitutional role of "advice and consent" very seriously. It is an integral part of our system of checks and balances.

Kenny Hulshof

It is my humble opinion that no individual took that responsibility more seriously than your former colleague, John Ashcroft. As evidence of that fact, I cite to you the October 5, 1999, Congressional Record: [Mr. Ashcroft] Confirming judges is serious business. People we put into these Federal judgeships are there for life, removed only with great difficulty, as evidenced by the fact that removals have been extremely rare. There is enormous power on the Federal bench. Most of us have seen things happen through judges that could never have gotten through the House and Senate. Alexander Hamilton, in Federalist Paper No. 78, put it this way: "If [judges] should be disposed to exercise will instead of judgement, the consequence would equally be the substitution of their pleasure to that of the legislative body." Alexander Hamilton, at the beginning of this Nation, knew just how important it was for us to look carefully at those who would be nominated for and confirmed to serve as judges.

Kenny Hulshof

Former Senator Ashcroft then elaborated on the dissenting opinions by Judge White in a series of criminal cases, including State of Missouri v. James Johnson. He acknowledged an outpouring of criticism levied against Judge White's nomination by respectable law enforcement groups. His ultimate rejection of Judge White's nomination was based on his judgement and legal reasoning. As you know, a majority of the Senate voted to reject the nominee.

Kenny Hulshof

Reasonable minds can differ on John Ashcroft's conclusion regarding Judge White's fitness as a federal jurist. These differences should be vigorously debated and considered. That is the hallmark of our republic. But branding a good man who has devoted his professional life to one of public service with the ugly slur of "racist without justification or cause is intolerable."

Kenny Hulshof

I know John Ashcroft. He is an honorable man of high integrity and morals. His commitment to his family, his state and his country are beyond compare. His experience and public service make him very qualified to be the next Attorney General of the United States. You have his assurance that he will faithfully execute the law in a way consistent with the will of Congress, in accordance with the rulings of our judicial system and in a manner that protects the liberties of all Americans.

Kenny Hulshof

Again, I would like to thank Chairman Leahy, Ranking Member Hatch and this distinguished panel for allowing me testify. Hon. Kenny Hulshof Committee on Ways and Means Washington, DC 20515 Hon. Patrick J. Leahy Chairman U.S. Senate Committee on the Judiciary 223 Hart Building Washington, D.C. 20510-0001 Washington, DC 20510-001 Dear Senator Leahy: As a matter of personal privilege, I respectfully request that I be allowed to testify on the same witness panel as Judge Ronnie White during your confirmation hearings on the nomination of Senator John Ashcroft to be United States Attorney General.

Kenny Hulshof

My appearance before the Judiciary Committee does not come because I am a sitting Member of the U.S. House. My appearance is solely because I was co-counsel in the prosecution of a murder case which became a critical issue during the consideration of Judge White's nomination to the Federal bench. I believe I can provide significant and unique testimony relevant to the State of Missouri vs James Johnson and Judge White's expected testimony.

Kenny Hulshof

Your current invitation to have me testify as part of a panel consisting of interested Members of Congress will not provide the Judiciary Committee with a full, fair and accurate account of the James Johnson case.

Kenny Hulshof

I respectfully request that my appearance occur on the same panel as Judge White. Any other invi ion would reflect a politicization of the hearing process and would be unfair to the Senate, the in coming Administration, and the American people. Sincerely, Kenny Hulshof Member of Congress

Patrick Leahy

I thank you. I thank both members. And I do appreciate Sheriff Jones being here. I repeat part of what I said on the Senate floor about Sheriff Jones on October 21st, 1999. I said I certainly understand and appreciate Sheriff Kenny Jones deciding to write his fellow sheriffs about this nomination. Sheriff Jones' wife was killed in the brutal rampage of James Johnson, and all Senators give their respect and sympathy to Sheriff Jones and his family. The one thing we all agreed upon, Sheriff, was how horrified we were at what happened, and the sympathy we have.

Patrick Leahy

Like a number of others in the Senate, I have prosecuted a number of murder cases. In fact, for 8 years I tried virtually all of the murder cases, tried them personally, that came within our jurisdiction. Some of them are horrific, others were an example of, as anybody in law enforcement knows, what we call and use that terrible expression, "the friendly murder", the family dispute that gets out of hand.

Patrick Leahy

The description of this murder is the most horrible one I have ever heard. That is not a question. Nobody disputes the horrible and terrible nature of this murder. Nobody disputes the right of the State of Missouri to impose whatever penalty they have on the books. Whether somebody is for or against the death penalty, if it is on the books, nobody disputes their right to do that. And everybody subscribes to the right of a fair trial. The question, of course, comes in this, not whether Justice White was saying this person should be freed. As he stated here today, that is not what his ruling was. His ruling was to remand. He was a dissent in that remand for a new trial.

Patrick Leahy

But, Congressman, you have been, as you said yourself, both a prosecutor and a public defender. Before I was a prosecutor, I defended only on an assigned-counsel basis. We didn't start a public defender service until probably through my prosecutor's career. Frankly, I found it easier being the prosecutor.

Patrick Leahy

But you had to help defend a person who was accused of murder, and I would assume that as that defense attorney you zealously worked to acquit him. Would that be right? I mean, that is what you would be required to do.

Kenny Hulshof

Zealously defend the man accused to the best of my ability, and certainly a lesser offense, or to spare the death penalty, I think as any defense attorney is charged to do.

Patrick Leahy

I would assume under Missouri procedure you would have -- once there has been a conviction, you have then a subsequent hearing on the question of penalty. And I assume that you would argue, of course, that even though now he has been convicted of murder, you would then argue that he not get the death penalty.

Kenny Hulshof

That is correct, Mr. Chairman.

Patrick Leahy

And, actually, under the canons of ethics, once having accepted that assignment, you have to do that, do you not?

Kenny Hulshof

Now, there are also requirements on the prosecutor. In the Johnson case, the Missouri Supreme Court had raised questions about the suggestive silence in a deposition and the failure to correct misstatements during a deposition. The majority decision -- now, this is a majority that upheld Johnson's conviction and death penalty -- said, "This court does not condone the conduct of the State in failing to correct the erroneous implication from its own confusion about the perimeter defense."

Patrick Leahy

Patrick Leahy

You have both a defense attorney and a prosecutor. Both are expected to do their best to win their case. Is that a fair statement?

Kenny Hulshof

It is, Mr. Chairman, with some qualification, and I will be happy to state this.

Patrick Leahy

Clearly, the challenge for any defense attorney is to aggressively, zealously, within the bounds of law and the canons of ethics, defend a client. The prosecutor's role is even a bit greater than that, not to be simply out to win the case but to be, I think as the canons say, a minister of justice.

Kenny Hulshof

Patrick Leahy

You presuppose my next question. In this case, the Johnson opinion, if I am correct, was critical of the State, as they said, for failing to correct the erroneous implication from its own confusion about the perimeter evidence. Is that correct?

Kenny Hulshof

I am not sure of the exact -- I have got the opinions, but I would love to be able to explain since I have never had the opportunity to talk about it, and perhaps just to set the record here, the perimeter evidence, as you might expect, when the hue and cry went out to law enforcement that there had been this crime spree, this rampage over a period of time, roughly between 7:30 in the evening until 1:20 the next morning, hundreds -- in fact, as we learn later, probably over a hundred officers responded and participated in this manhunt. The defendant, James Johnson, actually concealed himself in the home of an 82-year-old woman.

Patrick Leahy

The call of "officer down" galvanizes all law enforcement.

Kenny Hulshof

Absolutely.

Patrick Leahy

I have been there. I know what that is like.

Kenny Hulshof

And at some point, after Mr. Johnson had been taken into custody and the tedious process of the collection of evidence began, it was determined there was this crude alarm system, as the court calls it, perimeter evidence, of a rope with some tin cans, and inside those tin cans pieces of gravel, so that if a person were to trip it, you would hear this noise. It was collected by the officers, but there was no report as to who had collected it, who had put it there. There was also some evidence that the vehicle that Mr. Johnson had abandoned had four flat tires and no one was quite sure -- at least there were no police reports indicating who had flattened those tires. And so, really, it was not a relevant trail for the prosecution to go down, and we did not know, Mr. Chairman, as we walked into court on the day that the trial began, who had set the perimeter evidence, who had disabled the car. And, quite frankly, our theory of the case was focusing on these nationally renowned mental experts that the defense had hired to bring in on post-traumatic stress disorder. We were clearly focusing on other matters, thinking this perimeter evidence to be a curiosity.

Patrick Leahy

The testimony here has been that in 95 percent of the death penalty cases in which Judge White participated, he voted with at least one and usually more of the judges appointed by then-Governor Ashcroft. Would that be fair to characterize that record as pro-criminal or a bent toward criminal activity?

Kenny Hulshof

Judge -- excuse me, Mr. Chairman. I have already put you on the Federal bench. Mr. Chairman, I --

Patrick Leahy

I only get the chairmanship for a few days, so I will take the bench, if you want to throw that in while we are at it. Go ahead.

Kenny Hulshof

Again, I want to be very cautious as far as my response of articulating a position on Judge Ronnie White. But what I am here to say is that, as you all have debated and as I have watched with fascination, Senator Ashcroft was here telling the Senate, as he did on the Senate floor to his colleagues, that it wasn't for any other reason, certainly not for racial reasons, as we have heard, that led to his decision to vote against the confirmation of Judge Ronnie White. And it wasn't even this one single case, Mr. Chairman, you and I have been chatting about. It was in John Ashcroft's mind a pattern or series of cases.

Patrick Leahy

Then maybe I should ask you -- and I don't think it is fair either to you or to Senator Ashcroft for you to go into his mind -- but would you characterize Judge White's record as being either pro-criminal or having a bent toward criminal activity?

Kenny Hulshof

Again, as -- I am not ducking your question. As a member of good standing on the Missouri Bar, I want to be very cautious about making any statements about a judge, and, clearly, as a member of the other body who has no authority to vote to confirm or not to confirm any person that is not -- I appreciate your question, Mr. Chairman, but I hesitate to make a personal assessment of Judge Ronnie White.

Patrick Leahy

I understand.

Patrick Leahy

I want to thank both of you for coming. J.C., you are one of my heroes, and, frankly, everybody here knows what a fine man you are and what a good example you are to everybody. And I appreciate your testimony here today and your support for Senator Ashcroft.

Orrin G. Hatch

Orrin G. Hatch

Let me just say this: Sheriff Jones, we appreciate you being here today. We know how deeply you feel, and your firsthand account of what happened and the reasons you opposed Judge White will be made part of the record.

Orrin G. Hatch

I also want to thank you for reminding us of an important point that I am afraid some of us often overlook, and that is, decisions made by judges in this country can have a profound impact on the lives of our local citizens and law enforcement personnel. And for that reason, we should listen carefully to the views people like yourself express.

Orrin G. Hatch

In particular, Congressman Hulshof, I have a lot of admiration for you and for the life that you have lived and the work that you have done as a prosecutor, as an attorney. You have been in the big time as far as death penalty cases are concerned. And I think the knowledge you bring to Congress is very important. I for one would want to get even better acquainted than we are now. I know it is not easy for you to testify here today, but it is important that you do.

Orrin G. Hatch

Earlier today, Congressman Hulshof, we heard testimony from Judge White. I was very impressed with Judge White when I conducted the hearing. So my opinion of Judge White is a good one. But let me just say this: There is room for two sides on this issue. I am not going to condemn my Democratic colleagues for their very sincere vote for Judge White. Nor am I going to condemn my Republican colleagues for their very sincere vote against him. There were some pretty crass comments made at the time, but I think there is room here to go either way, as much as I like Judge White, and I do.

Orrin G. Hatch

But we heard testimony from Judge White earlier today that his dissent in the Johnson case was based on settled Supreme Court case law as stated in the Strickland case. Are you familiar with that case?

Kenny Hulshof

Yes, sir, I am.

Orrin G. Hatch

All right. Now, you are an experienced death penalty litigator and an expert in case law. Would you be kind enough to explain for the benefit of all of us here on the Committee the law and its relationship to effective assistance of counsel and how all the other justices disagreed with Judge White's interpretation of the law in the Johnson case? I would like you to explain what the law is and what exactly would have been the effect on law enforcement in Missouri and victims' rights. Some of the most compelling testimony we have had has been the testimony on this last panel on victims' rights which I appreciated. But what would have been the effect on law enforcement and victims' rights if the Missouri Supreme Court had held in the Johnson case, and other cases perhaps, the way Judge White would have liked the court to have decided in that case?

Orrin G. Hatch

I don't mean to put you on the spot, but I think that question has to be answered.

Kenny Hulshof

Senator, I appreciate your kind words, and I will attempt to answer the questions as you put them to me and do that as expeditiously as I can.

Kenny Hulshof

I think it goes back to the Senator from my neighboring State of Illinois, as I listened to the colloquy yesterday about his -- I think the question -- forgive me for paraphrasing. I don't have your transcript, Senator Durbin. But is an error committed by a trial lawyer sufficient in and of itself -- and I am paraphrasing what you said, but is an error committed by the criminal defense attorney in and of itself sufficient to overturn a sentence or a conviction? And the United States Supreme Court case law, which our State Supreme Court is deemed to follow, says it is not, that simply an error committed by defense counsel is insufficient because essentially there are errors committed in, whether death penalty cases or even in a felonious stealing case.

Orrin G. Hatch

Was that the rule of law that should have been applied in this case?

Kenny Hulshof

It was not the rule of law that should have been applied, and I think that the majority opinion in the Johnson case adequately and accurately described what that standard is. It is: Is it as a result of any error by a defendant's counsel that it created a reasonable likelihood or probability that the outcome of the case would have been different but for the error. And so I think, again, the majority opinion in the Johnson case correctly stated the law.

Kenny Hulshof

I see the red light is on, and let me undertake --

Orrin G. Hatch

You can continue the answer. I will ask my colleague to just give me a few more minutes.

Patrick Leahy

Let me, if I could, try to answer the second part of your question as far as the effect of law enforcement, and I really -- to this distinguished panel, the numbers that have been talked about as far as the number of affirmations or the number of dissents, I really don't know. I have not done that research, and I am sure that those numbers are accurate.

Kenny Hulshof

Kenny Hulshof

But it is a little bit -- I think it is troubling for me, again, going back to my former days as someone who toiled in the courtrooms around our State, it is troubling to try to negotiate or talk about these terms as far as statistics. I think the farther that I personally get away from those days when I stood this far away from a box, a jury box, where 12 ordinary citizens were asked by the prosecution to do extraordinary things, I think the farther I get away from that experience, perhaps the more I forget about how extremely difficult those cases are. They are physically demanding, emotionally draining, not just for the litigants but for the jurors that we put into those positions and for the defendant's family and certainly for the victim's family.

Kenny Hulshof

And the point I hope to make, Senator Hatch, is that any time that there is a reversal or any time an esteemed jurist writes a dissent, it is -- in a reversal, in the case of a reversal, it is at least the opportunity that that convicted killer can be free. Or in the case of a dissent, it is a message to law enforcement, it is a message to victims like Sheriff Kenny Jones, that perhaps their sacrifice has been somewhat in vain.

Kenny Hulshof

And so, clearly, again, I see that I am probably teetering on the line. This is not any comment on Judge White per se, but I answer that question in the larger context in which you gave it.

Orrin G. Hatch

The senior Senator from New York.

Patrick Leahy

Chuck Schumer

Thank you, Mr. Chairman. And I want to thank both of our witnesses for taking their time and being here, and I also want to convey my respects and sadness to Sheriff Jones for his loss, as well as to Ms. Campbell for her loss. I am sorry. We had another hearing, and I couldn't be here for your testimony or those of the others. And as somebody who has been with families who have had losses in these horrible kinds of incidents, my heart goes out to both of you.

Chuck Schumer

I would like to just focus a little bit with Representative Hulshof in terms of this specific issue which troubles me, because the only thing, as I understand it, that Judge White did in this case was to say that as a legal matter he believed that the defendant had received ineffective assistance of counsel with regard to his insanity defense. And there is a debate about that, which we have heard.

Kenny Hulshof

And that is a fair debate. But in no way did Ronnie White condone these grisly crimes. In fact, the first sentence of his opinion reads, "I would find the result troubling." And at the end of his opinion, he said, "This is a very hard case. If Mr. Johnson was in control of his faculties when he went on this murderous rampage, then he surely deserves the death sentence he was given." That doesn't indicate somebody to me who is pro-criminal or even on that instance "soft on crime." I mean, I have been in my State one of the people who has pushed for tougher laws, whether it be capital punishment or ending parole or things like that.

Chuck Schumer

Chuck Schumer

But when somebody, a judge or somebody else, is talking about a fair trial, I don't think fair trial ever enters into what side one is on. There is a balance between societal rights and individual rights. But all of us would agree both play a role.

Chuck Schumer

So I would just like to ask Representative Hulshof, would you say that any candidate to judge should be rejected because as a legal matter he had written an opinion questioning the effectiveness of counsel? That is what I don't understand. I have come across people on the bench who I would characterize as soft on crime. I don't think a decision saying that there was ineffective counsel, whether it be right or wrong -- that is not what we are debating here, in my judgment, anyway -- entitles you to say that somebody is pro-criminal, or whatever the other expression was that Senator Ashcroft used on the floor of the Senate.

Chuck Schumer

Could you comment on that?

Kenny Hulshof

I would be happy to, Senator Schumer. Let me say also I appreciated the 2 years that we served together in the U.S. House.

Kenny Hulshof

Regarding the -- let me just even take a little further -- Judge White's dissent went further, and this is where I can't speak for John Ashcroft. But as a prosecutor, here is the language that I find particularly troubling. It is the sentence just where you stopped. But the question of what -- and I am quoting from State v. Johnson at page 16. "But the question of what Mr. Johnson's mental status was on the night is not susceptible of easy answers. While Mr. Johnson may not, as the jury found, have met the legal definition of insanity, whatever drove Mr. Johnson to go from being a law-abiding citizen to being a multiple killer was certainly something akin to madness."

Kenny Hulshof

Now, it is my understanding, with all due respect to Judge White, but the role of an appellate court is not to substitute the judgment of the court for that of the jury, and particularly as, Senator Schumer, you or I as lay persons might say that going from a law-abiding citizen to a multiple cop killer is madness or something akin to madness, that is not the legal definition of what constitutes a mental disease in our State.

Kenny Hulshof

But putting that aside, I think you ask another good -- and I will just be very candid with you. I personally do not believe that a single dissent is sufficient to disqualify any Federal jurist. And I know I am going out on a limb because I am not a member of this body. But --

Chuck Schumer

But, you know, that is a fair standard. I mean, if we were to use a single -- take a single thing that Senator Ashcroft did and just saw the world through that prism, we wouldn't be being fair to him.

Kenny Hulshof

But if I could be permitted to follow, just as I don't believe a jurist should be disqualified for one single dissent, neither does John Ashcroft. He described for this panel over the last couple of days a series of cases -- in fact, as he talked about on the floor of the U.S. Senate during this confirmation process a number of cases.

Kenny Hulshof

And, Senator Schumer, just as you have said that we can have -- and reasonable minds can differ on whether this dissent was right or wrong, but, clearly, I also believe, in John Ashcroft's defense, that reasonable minds could have disagreed over whether or not Judge White was fit to be a jurist on the Federal bench for the rest of his life. And that is the point.

Kenny Hulshof

Again, I am so deeply troubled and somewhat offended by some of the statements regarding John Ashcroft's vote against Ronnie White being racially motivated. The record seems to be clear, and you all have been discussing that because of, in John Ashcroft's opinion, this series of cases by a single judge since that reflected on his fitness for office. And I think as John Ashcroft said on the floor on October the 5th, if I am not mistaken, "whether we as a Senate should sanction the life appointment to the responsibility of the district court judge for one who has earned a vote of no confidence from so many in the law enforcement community in the State in which he resides." And reasonable minds can differ on that.

Kenny Hulshof

But, clearly, the fact that we are discussing those decisions and those qualifications has absolutely nothing to do with race. And so that is the point of my --

Chuck Schumer

Let me -- Mr. Chairman? I was going to follow up with a question, but if people are in a hurry, I do not have to do that. I will defer. Go ahead. Senator Specter?

Patrick Leahy

Senator Specter was concerned that you had gone over. You have gone over less time than he went over earlier this morning, but if you want to refrain, we can go back --

Arlen Specter

Well, now, wait a minute, Mr. Chairman. That red light has been on on the other side, including you, for a very protracted period of time.

Patrick Leahy

About 2 minutes 21 seconds.

Arlen Specter

And when I was questioning Judge White, I was cutoff. And I just asked you a question if the red light applies only on this side of the table. That is my question.

Chuck Schumer

I have no further questions, Mr. Chairman.

Patrick Leahy

I think the record will show that both sides have gone way over their time and that the Chair has given a great deal of time to both sides, did not run the red light on either of the two witnesses, both Republican Congressmen speaking on behalf of Senator Ashcroft, did run the red light on a number of people who spoke against him.

Patrick Leahy

Senator Thurmond?

J. Thurmond

Congressman Watts and Congressman Hulshof, I really appreciate your appearance today on behalf of Senator Ashcroft. Your testimony is very important and beneficial to him and we thank you.

J. Thurmond

J. Thurmond

I also want to thank Sheriff Jones. Sheriff, hold up your hand. Thank you. I want to thank you for being here. Your dedication and interest should be commended. I have the greatest respect for all victims of crime. Crime is a terrible harm to our society, and society must be tough on crime.

J. Thurmond

I thank you.

Patrick Leahy

Now, there is an example of how to stay within the time.

Patrick Leahy

The distinguished senior Senator from Illinois, Senator Durbin.

Dick Durbin

Congressman Watts and Congressman Hulshof, thank you for joining us today. I want to say at the outset that, like John Ashcroft and I believe yourself, Congressman Hulshof, I support the death penalty and I voted for the death penalty. That is not the issue here.

Dick Durbin

Dick Durbin

When I read the Johnson case, this horrific, murderous rampage this man went on, destroying innocent lives, including the lives of law enforcement, I can tell you that I feel sympathy for Sheriff Jones and all the families involved in it. There is no question about that.

Dick Durbin

I come virtually to the same conclusion that Justice White did. If Mr. Johnson was in control of his faculties when he went on this murderous rampage, he assuredly deserved the death sentence he was given. But I have to disagree with one of the points that you made, Congressman. For you to characterize Johnson's defense as a dream team really is a stretch. This man who committed these murders signed a confession. If there was any defense, it was a question of his mental capacity. And his defense counsel decided to construct a defense, which is novel, the post-traumatic stress syndrome, and then proceed to argue that before the jury. And he used as evidence of that this so- called perimeter which was around the defendant's house and the fact that the tires on his truck were flat to say this reminded the defendant that he was back in Vietnam and he broke and he did these terrible things.

Dick Durbin

This dream team defense counsel had failed to interview two State troopers in a death case who were on the endorsed witness list, and in failing to interview these two State troopers, this defense dream team didn't realize the perimeter had not been created by the defendant but by the police and the air was let out of the truck tires by the police as well. His entire defense disintegrated in front of him. From the prosecution point of view, you were in a pretty strong position, if the facts come out as they were in this case, and his entire defense disappeared.

Dick Durbin

I raise a question about your defense dream team's competence that they would not interview two State troopers on the endorsed witness list who clearly would have given them information to rebut their entire defense. They got right smack dab in the middle of the trial, and it disintegrated in front of them.

Dick Durbin

Justice White says, based on this, he doesn't think they did a good job as defense attorneys. Well, I want to tell you this: If I had somebody important to me in my family who needed a defense attorney, I wouldn't be calling this dream team. And I don't believe John Ashcroft, if he becomes Attorney General, would hire this defense dream team in the Department of Justice. At least I hope he would not.

Dick Durbin

Justice White sat here this morning and said what he said repeatedly. He didn't believe James Johnson should be released. All he believed is that he was entitled to a fair trial and that the counsel he was given did not give him a fair trial.

Dick Durbin

How this comes together is this: You have a man who has devoted his life to the law, fought his way to complete law school, to be the attorney for the city of St. Louis representing the police department, the first African-American to the Missouri appellate court, the first African-American in the Missouri Supreme Court, a lifetime of hard work and commitment to law, who reaches this opportunity to become a Federal district court judge, and he is rejected after 27 months dangling before this Committee on the basis of three court cases: the Demask case, which was cited by Senator Ashcroft, in which Justice White's opinion was confirmed by the Supreme Court as the appropriate standard; the Kinder case, where days before a trial a judge made not just insensitive statements but racist statements, and the question was raised as to his bias; and the Johnson case.

Dick Durbin

And I just have to say to, Congressmen, to have a man's entire legal career tossed aside, to have him characterized as pro-criminal, to ignore the clear statistics of his support for death penalty cases over and over again raises a question in my mind as to whether or not he was treated fairly. I would like to give you a chance to respond.

Kenny Hulshof

Thank you. It is interesting, and if I could. I find myself at an unusual position, Senator Durbin, in that as a 10-year career prosecutor that I am defending defense counsel, the same individuals that are your adversaries, against in a courtroom, but let me put a couple of other facts out there because, as you stated -- and, again, not taking notes from your statement, coming up with this extraordinary defense about this post-traumatic stress or, as lay people call it, the Vietnam Flashback Syndrome.

Kenny Hulshof

When Mr. Johnson was arrested, he gave a detailed confession and made reference to his service in Vietnam. When the hostage negotiator was trying to negotiate over the telephone before Mr. Johnson was apprehended, he had taken an 82-year-old woman hostage in her own home, allowed her to leave. She informed law enforcement officers that, "The man you are looking for is in my house," and so the helicopters come in and they surround the house. An experienced hostage negotiator on a bullhorn says, "Pick up the phone," and then they commence a couple hours of conversation on the telephone which was recorded.

Kenny Hulshof

During the course of that conversation, the defendant, James Johnson, was telling this Highway Patrol negotiator that, "I am the only one left from my platoon. My platoon leader has been killed." He even mentioned the name Sergeant Calley or Lieutenant Calley which, of course, if you follow Vietnam history, as this, by the way, Highway Patrol negotiator knew, that Lieutenant Calley probably was a little older than Mr. Johnson, and so he was beginning to suspect that maybe Johnson was trying to conjure up his own defense, but there were strong references during this back-and-forth, during the hostage negotiation time where the defendant Johnson was lacing his comments with "gooks" and other terminology that are consistent, of course, with those who had experience in Vietnam.

Kenny Hulshof

Not only that, regarding the competency of counsel, they brought in three of the most nationally acclaimed experts on post-traumatic stress disorder. In fact, Dr. John Wilson -- it is in the record -- who I had a very difficult time on cross- examination with, who is known by some as the Father of Post- Traumatic Stress Disorder, who wrote the diagnostic and statistical manual on PTSD was one of their witnesses, and they had this group of experts that were renown around the country.

Kenny Hulshof

So, again, reasonable minds can disagree over effective representation, but I can tell you having been on the other side of this case in the courtroom, having to battle very day these exceptionally skilled attorneys, I believe that his representation was extremely adequate as far as assistance of counsel that the law requires.

Dick Durbin

If you will spare me and allow me one closing sentence. If reasonable minds can disagree, can you understand how one Justice on the Supreme Court might dissent in this case and not be pro-criminal and not be soft on the death penalty and have his entire legal career besmirched by those comments on the floor of the U.S. Senate?

Patrick Leahy

Both of us agree. Go ahead with your answer.

Kenny Hulshof

If, Senator, you will also agree that during the confirmation process of Judge Ronnie White that reasonable minds could agree or disagree as to his fitness to be elevated to the bench. I offer no opinion to that, but John Ashcroft, who you all are scrutinizing, just as his record is appropriately before you and the American people as to whether he is fit to be the Attorney General of these United States, he took that same measure seriously, his role then of advise and consent, as he scrutinized the record of another jurist from his homestate who had raised the concerns of some in law enforcement as to his fitness for the bench, and I think there was reasonable disagreement there as well.

Kenny Hulshof

With that, we will go to the senior Senator from Pennsylvania.

Patrick Leahy

Arlen Specter

Congressman Hulshof, Senator Durbin, I think you have both made very reasonable arguments, and the question which comes to my mind is what impact does all of this have on the qualification of Senator Ashcroft to serve as Attorney General.

Arlen Specter

Arlen Specter

I think it is very important to focus on the testimony which Judge White gave, and the centerpiece was the opportunity for him to clear the record and to clear his name on what he considered to have been an improper handling of this matter where his record was not accurately stated. I think he had that opportunity today, but he did not say John Ashcroft should not be confirmed as Attorney General, and he did not say or question Senator Ashcroft's motivations as being political.

Arlen Specter

That accusation has been made on this side of the table, but as to what the witness said, he did not make that point, and I pressed him on it, with great respect for his record, and I do believe that the Senate ought to change procedures. We may handle confirmations which are successful without going into great detail by Senators personally, although staff and FBI and Bar Association and Justice Department does it, so that he had his chance to say his side of it.

Arlen Specter

But the question -- and you have already answered this in a wide variety of ways -- as to the good faith of John Ashcroft in the judgment which he made, do you have any doubt -- this is repetitious, but one more time -- that there was an ample basis for the good-faith judgment of Senator Bond and Senator Ashcroft in coming to the conclusions which they did as to Judge White's confirmation?

Kenny Hulshof

I appreciate the question. There is no question in my mind, knowing John as I do from his many years as a public servant in Missouri, elected twice as Attorney General, twice as Governor, once as U.S. Senator, that he is a man of high integrity and character, and you probably know that as well or better than I having worked alongside your former colleague. So, as he has answered many questions over his reasons for opposing the nomination of Judge White to the Federal bench --

Arlen Specter

Without taking too much more time --

Kenny Hulshof

-- I think the fact that there are now individuals trying to target him with slurs, I think, is intolerable.

Arlen Specter

Well, this has been the most heated confirmation process that I have seen. I am now in my twenty- first year serving on this Committee, and the confirmation process as to Judge Bork was no picnic, and the confirmation as to Justice Thomas was no picnic, and the confirmation process as to Chief Justice Rehnquist was pretty heated. We have had a great many controversial proceedings, but the kind of charges which have come from this side of the table on John Ashcroft being political --

Orrin G. Hatch

Please don't point at me.

Arlen Specter

-- As to Judge White, it has to be emphasized it didn't come from Judge White. It didn't come from the witness. There have been threats of filibuster, and if John Ashcroft is as bad as the witnesses on this side of the table have characterized him, as bad as the Senators have characterized him, if he is that bad, they know how to stop him, but it really isn't all that bad because, when you strip down the issue we have been on for hours now as to Judge White, Judge White should have been treated differently by the Senate. There may have been some excessive statements made, but when you boil down Judge White's testimony, he does not say John Ashcroft should not be confirmed, and he does not say that John Ashcroft acted out of a political motive or out of a biased motive.

Arlen Specter

My red light just went on. Thank you.

Patrick Leahy

If the Senator wants to finish his question, feel free.

Arlen Specter

Well, we will go to Senator Kyl. I am not hearing an answer. I simply will go ahead. Senator Kyl?

Patrick Leahy

Jon Kyl

I would like to submit to the record a series of endorsements by various law enforcement organizations for Senator Ashcroft's confirmation for the record.

Jon Kyl

Jon Kyl

Second, I want to commend Sheriff Jones for being here under these circumstances, and I look forward to reading your testimony, sir. In particular, I hope that my colleagues read that part of the testimony which makes it clear that it was you who asked Senator Ashcroft to oppose the nomination, not the other way around, and it was you who initiated the petition drive of law enforcement officials in opposition or at least in semi-opposition to Ronnie White's nomination to the Federal district bench.

Jon Kyl

Representative Watts, as always, you are willing to sacrifice your time for others for what you believe is right. I thought your testimony was powerful. I have got to get that video for my grandkids.

Jon Kyl

Representative Hulshof, I appreciate your fine legal analysis. Because so much of this hearing did revolve around this particular case, I think your expertise has been very useful to the Committee.

Jon Kyl

The bottom line here is that this was a very skilled group of lawyers who were hired to defend a case that frankly was indefensible, and I will also submit for the record the actual finding of the judge in the findings of fact and conclusions of law that the team that you characterized as the "Dream Team," to quote the court, was highly skilled and well prepared for the case.

Jon Kyl

It was not a matter of inadequacy of counsel. It was a matter of a case that frankly couldn't be defended. Clarence Darrow could not have gotten this guy off.

Jon Kyl

If we are going to hold otherwise, we are going to put ourselves in this Catch 22. Either the jury acquits or it is error because the defense counsel couldn't find a way for the jury to acquit. That would mean no one ever gets convicted in a case like this.

Jon Kyl

But I am troubled by two other things. Not only has there been some focus on the sanity defense here, but as you have pointed out, it is not just a matter of the finding here, but also whether or not the alleged errors of defense counsel and inadequacy of counsel had any effect on the jury, and, of course, the majority opinion in the case said whatever the situation with regard to defense counsel, it had no effect on the jury. White disagreed with that.

Jon Kyl

But there were two other things pointed out. One of them was the statement that was read earlier that while Mr. Johnson -- this is in the dissent of Judge White. While Mr. Johnson may not, as the jury found, have met the legal definition of "sanity," whatever drove him to go from law- abiding citizen to multiple killer was certainly something akin to madness.

Jon Kyl

Now, there is a legal standard for insanity, and a judge is required to apply the law. This is a case where apparently Judge White was willing to fly by the seat of his pants, not applying the law because it just didn't seem right to him.

Jon Kyl

But the other thing that hasn't been brought up is something else from his dissent, and let me quote from it, at least in part, after the whole business about adequacy of defense counsel, he says, "Even more troubling to me is an issue that the principal opinion doesn't address. It is the issue of mitigating factors," and the conclusion of Judge White is that because Mr. Johnson had not committed crimes previously, the jury might have been able to find that this four-time killer could warrant a sentence of life rather than death.

Jon Kyl

Now, we heard the testimony of Ms. Collene Campbell who said that a judge with a big heart gave a criminal one more chance, and he used it to kill her son. If you are one judge out of seven on the Missouri Supreme Court, you can make an error like Judge White did and it does not have a negative impact on society, but he wanted to give Jimmy Johnson one more chance, and that error could have had grievous consequences.

Jon Kyl

My belief is that he was wrong on the law, and that in effect he failed the law exam here sufficiently to justify us to not reward him with a lifetime appointment to the Federal district court.

Jon Kyl

There were other cases as well, but I just want to make it crystal clear that however well-intentioned and however decent Judge White is -- and he clearly is from his testimony here today -- the Senate has no obligation to elevate him to a lifetime appointment to the district court given the fact that he made the kind of errors that he did and that the court itself concluded that he did.

Jon Kyl

So I think this vindicates the judgment not only of the Senate, but also of Senator Ashcroft in opposing him.

Jon Kyl

Incidentally, Mr. Chairman, just one final point, there has been an allegation by some on our side that Senator Ashcroft distorted the record of Ronnie White. Of course, every Senator had full opportunity to clarify the record in the debate in the Senate. John Ashcroft was only one of 100, and there was full opportunity for debate and clarification if anybody had felt that necessary.

Jon Kyl

The senior Senator from Ohio.

Patrick Leahy

Michael DeWine

I have no questions, Mr. Chairman. Thank you.

Patrick Leahy

I can't tell you how much the chairman thanks the senior Senator from Ohio.

Patrick Leahy

The Senator from Alabama.

Jeff Sessions

Thank you, Mr. Chairman. Not so lucky with me.

Jeff Sessions

Congressman Watts, thank you for coming. Thank you for all you do to advance good and healthy ideas in America.

Jeff Sessions

You just did a great job in Alabama, recently speaking, to a large group of young people, a fellowship of Christian athletes, and it was a special time. They were really inspired and motivated by what you do. It may be that those kind of things will last longer than any laws that we pass around here.

Jeff Sessions

Congressman Hulshof, I really appreciate your sharing with us here, and I tend to agree with John Kyl, the problem the defense had was they had no defense. The guy was caught flat- footed and gave a detailed confession. So it strikes me that the defense was trying to do a home run. It is fourth and 10 on your own 30, and you have just got to throw it up there, and a lot of times, it gets intercepted. Is that an unfair characterization of it?

Kenny Hulshof

I think that is an accurate depiction. I think law enforcement in this case, especially those that did the investigation, deserve tremendous credit. The Court, the judge who presided over the trial, did her job. I think the litigants battled furiously for their respective sides. The jury did their job, and then the case went on to appeal and then we have had the decision that we have been discussing.

Jeff Sessions

Now, with regard to judges in general, as a prosecutor, within the law enforcement and prosecutory community, you know the judges that consistently fail to follow the law, fail to give the prosecutor his fair due in court, and that is pretty well known around, isn't it?

Kenny Hulshof

Well, you know, Attorneys General like John Ashcroft and a prosecutor and former Attorney General like I have been feel an obligation and a duty when we put somebody on a lifetime Federal bench. It is our responsibility to make sure that we maybe give a particular assurance that those people are going to give both sides of the case a fair shake. Would you think that is probably something that was in the former Attorney General John Ashcroft's mind when he dealt with this case?

Jeff Sessions

Kenny Hulshof

I do, Senator Sessions, as well as was pointed out in the statement that I read from Sheriff Jones, the extraordinary, for lack of a better term, effort by some law enforcement groups who saw this dissent and perhaps with some other cases who raised this red flag to Senators Ashcroft and Bond.

Jeff Sessions

Sheriff Jones, we thank you for being here. I know most of the sheriffs in my State. Certainly, I knew the ones in my district when I was United States Attorney, and the chiefs of police, also. I respect them. I know they are good and decent people, and if they have serious concerns about a nominee, I am going to listen to it. John Ashcroft voted for every single African-American nominee presented by President Clinton, 26 out of 27 that came to a floor vote, and he opposed this one from his own district where he had a particular responsibility, it seems to me, and he had a serious objection among the law enforcement community.

Jeff Sessions

The Fraternal Order of Police and others have just issued an endorsement for Senator Ashcroft, and I am going to offer that into the record.

Jeff Sessions

The Fraternal Order of Police have issued a specific statement supporting John Ashcroft for Attorney General, and they represent 293,000 members nationwide. Is that a premier law enforcement agency, Congressman Hulshof?

Kenny Hulshof

It is, Senator Sessions.

Jeff Sessions

And as have the Sheriffs Association.

Jeff Sessions

The National Latino Peace Officers Association said, "It is with sincere pleasure that I write on behalf of the men and women of the National Latino Police Officers Association in support of Senator Ashcroft's appointment to Attorney General," and the letter goes on.

Jeff Sessions

The Association of Former State Attorneys General have written, and here is a long list of former Attorneys General around the country that have written in support of John Ashcroft for Attorney General, and I would offer those into the record.

Jeff Sessions

Mr. Chairman, thank you. My time has expired.

Patrick Leahy

Do you have something further to add?

Jeff Sessions

I will stay within my time.

Patrick Leahy

You would be one of the very few on the other side of the aisle, but I appreciate it.

Jeff Sessions

I would just offer that and say there are other letters from significant organizations that should be submitted.

Patrick Leahy

We will keep the record open, of course, under our normal practice for Senators from either side of the aisle to submit letters or others.

Patrick Leahy

Does the Senator from Kansas wish to ask questions?

Sam Brownback

Yes, I would, if I could.

Sam Brownback

Thank you very much for coming in, Kenny. I appreciate that.

Sam Brownback

J.C., it is always great to see you. We came in together in the House of Representatives, and you have done very well from your football days on forward. Oklahoma is back in football like when you were quarterbacking.

Sam Brownback

Briefly, if I could, Congressman Hulshof, one of the central issues here has been Judge White and his record, not just the one case, but his record of what it was toward criminal -- whether he would be tough on crime or he was going to be soft on crime. I wanted to put into the record -- and if you had a comment -- the number of police organizations that were opposed to his appointment to the Federal bench based upon that pattern of softness, and particularly like the Missouri Federation of Police Chiefs who stated in this letter, September 2nd, 1999, "We want to go on record with your office as being opposed to his nomination and hope you will vote against him for the Federal bench, a lifetime appointment to the Federal bench."

Sam Brownback

I would also point out the National Sheriffs Association saying, "I am writing to ask you to join the National Sheriffs Association in opposing the nomination of Mr. Ronnie White to the Federal judiciary, and I strongly urge the U.S. Senate to defeat his appointment."

Sam Brownback

Then Sheriff Jones' letter, whom I would have loved to have heard your testimony as well in this case, opposed his appointment to the Federal bench.

Sam Brownback

The Missouri Sheriffs Association said, "We strongly consider his dissenting opinion in the Missouri v. Johnson case."

Sam Brownback

Is that the pattern you spoke of, of why these organizations were all opposed to his taking the Federal bench?

Kenny Hulshof

Again, without my own personal comments about it, I think Senator Ashcroft has indicated both on the floor when he was your former colleague, discussing various cases, I think many of those that we talked about, the Johnson case. There was a Kinder case. There were some others, again, and I think he also had the opportunity to be questioned about additional criminal cases. I think even since Judge White's nomination was defeated, there were additional cases that perhaps were brought forth in this process by your former colleague, an Irvin case and some others.

Kenny Hulshof

So, again, without offering my own opinion specifically about Judge White, that is not the purpose of me being here today. I think Senator Specter mentioned earlier that the point of these inquiries, of course, and the very difficult job that you have is the fitness for office for the Office of Attorney General for John Ashcroft, and I think that especially as a fellow Missourian, these charges of racially motivated reasons for defeating Judge White's nomination, really, there is no information or evidence to that.

Kenny Hulshof

Clearly, I would just urge, if I could, just as John Ashcroft I believe is a man of highest moral integrity and character, I think he would make an exceptionally qualified U.S. Attorney General.

Sam Brownback

Congressman Watts, you have been here, and I thank you for participating. I don't know if you had any follow-up comments that you would like to make.

Sam Brownback

I would direct your attention particularly. There have been a number of innuendoes and allegations toward John Ashcroft's sensitivities, racial sensitivities, and if you know John and if you have any comments regarding any of those comments that others have made.

a Watts

Senator, I shared my testimony or in my statement that I have dealt with John for the last 6 years. I have campaigned with him in his homestate. I have worked with him on legislation concerning poor communities, underserved communities. I have always found John Ashcroft to have nothing but the utmost respect and dignity for one's skin color.

a Watts

I hear John say yesterday in some of his testimony that his faith requires him to respect one's skin color, and I think that is the way it should be. So, in my dealings with John, I have had nothing but the utmost respect for him when it comes to his dealings with people of different skin color.

Sam Brownback

Thank you very much. Thank you both for joining us, too.

Jeff Sessions

Could I bother to offer one more letter?

Patrick Leahy

The Senator from Alabama can interrupt any time he would like. You go right ahead.

Jeff Sessions

You are very kind. You have been very patient.

Jeff Sessions

This is from the Mercer County Prosecuting Attorney's Office, and I note some have objected to John Ashcroft's use of the word "anti-law enforcement," but this is the letter he had back at that time, "Judge White's record is unmistakably anti-law enforcement, and we believe his nomination should be defeated. His rulings and dissenting opinions on capital cases and on Fourth Amendment issues should be disqualifying factors when considering his nomination. John White has evidenced a clear bias against the death penalty from his seat on the Missouri Supreme Court," and he goes on for another page and a half. But I would just offer that as a basis for Senator Ashcroft to have said what he said.

Patrick Leahy

I am sure that will be part of the debate for the next several weeks, but I would also note, as we have put in the record, the endorsements from a number of significant police organizations and individual police officers in Missouri for the nomination of Judge White to be a Federal district judge, a number who endorsed him for that position, a number who said they considered him far more concerned with victims than with criminals.

Patrick Leahy

With that, we will stand --

Orrin G. Hatch

If I could just make one last comment. Which, of course, makes my point that there is reason to be on either side of this issue. It is a little offensive to have some accusing Senator Ashcroft of insensitivity I think this particular panel has been very important in helping us to understand that.

Orrin G. Hatch

I think we should be a little more careful before we start finding fault with colleagues. I don't find fault with those who voted for Judge White. I don't find fault with those who voted against Judge White.

Patrick Leahy

Ultimately, of course, the question will come down to how 100 United States Senators will vote for John Ashcroft.

Orrin G. Hatch

While that vote will not be held today, eventually it will be held, and that will be the question.

Patrick Leahy

Patrick Leahy

I do thank our two colleagues from the House, both valued members of that body. They have been most patient.

Patrick Leahy

I will announce the program when we come back at 2:30. We will go back to question the panel that was interrupted to allow the Members of the House to testify.

Patrick Leahy

AFTERNOON SESSION [2:43 p.m.]

Patrick Leahy

Thank you all, and as sometimes happens in these events, we have to move things around, and I apologize for that.

Patrick Leahy

I am going to have the questioning start by one of the two most senior members of the panel, a former chairman, Senator Kennedy, and then go in normal rotation to Senator Hatch, and then back to me. I don't think it is the altitude, unless it is the altitude of the office, but I seem to have developed a bit of a nosebleed, so I am going to step out.

Orrin G. Hatch

If I can, Mr. Chairman, when you come to me, I am going to defer to Senator Specter, who needs to be at another confirmation.

Patrick Leahy

Would you rather go first?

Arlen Specter

That is all right. I will follow Senator Kennedy.

Patrick Leahy

Let's turn to Senator Kennedy.

Joe Kennedy III

Thank you. Thank you very much, and I want to thank the panel very much for the very, very helpful commentary. And I know the 5-minute rule made it difficult, but the information you provided to the Committee is very, very valuable.

Joe Kennedy III

I would like to direct my first question to Harriet Woods. On Tuesday and Wednesday, Senator Ashcroft testified that the State of Missouri was not responsible for the segregation of St. Louis schools and that he was simply fulfilling his duty to defend the State when he so strongly opposed the city's voluntary desegregation plan. Is that an accurate description of what really happened?

Harriet Woods

It is not, Senator, and I think it is one of the most troubling aspects to me of this nomination, because as you well know and pointed out, there is no more serious challenge to this country than reaching a resolution on some of these lingering issues related to race. And the fact that he would say that he was just appearing as Attorney General but protecting the State from liability, because there was no liability. The history of Missouri, at one time it was a crime to educate black children. The ministers had to take them out on boats in the river. There was a constitutional amendment requiring segregation of schools.

Harriet Woods

I served in the State Senate at a time -- and, frankly, I think it lingers to this day -- when there was a resistance to providing more funds to the urban schools. So for these families to be -- to find no resolution to a good education for their children at either the State or local level, neither one of them willing to really assume the responsibility for remedying what was a long, clear injustice to African-American children was what brought on the Federal suit. And to have the Attorney General of the State not even -- seemingly who was born and raised in Missouri, who told us, well, yes, he knew about this 1954 decision and a black child came into his class, that he was not conscious that there was a State liability really is worrisome because that could be transferred to the Federal level of no liability, no responsibility. And you can tell I am really appalled.

Joe Kennedy III

Well, I think in fairness to the Senator, he had indicated that the State was not involved. We have had contrary testimony to that in the holdings of the court. This went on for some 8 years as he was Attorney General and 8 years as Governor. Am I correct that this issue was not settled?

Harriet Woods

It not only went on, but as you know -- and I certainly don't want to take up all the time, and I know you are going to have other testimony from other witnesses. But even to the extent of impeding or trying to block voluntary -- efforts at voluntary resolution, which you would think he would be happy about, in terms of if the local districts -- if the State could assist a voluntary remedy, and the courts themselves chastised the Attorney General for foot-dragging and for getting in the way, I mean, it seems to me this is more than just routine representation of the State.

Joe Kennedy III

One other issue that I raised with Senator Ashcroft on the first day: he defended his veto of two voter registration bills by citing support for his action from a few Democrats in the city of St. Louis. That is the situation where there was one piece of legislation that provided voting registrars for St. Louis, and he vetoed that because he said that that was only targeted on one city. And then the legislature, as I understand it, passed legislation to encompass the whole State, and he vetoed that as well.

Joe Kennedy III

The result has been a very dramatic falling off of black registered voters during that period of time when other groups, like the League of Women Voters, were out registering in the county itself surrounding the city. I believe there were 1,500 active registrars out in the area just surrounding the city, and for special reasons that you know, this is really a function of the Governor. The Governor has this responsibility, as I understand it, under Missouri law.

Joe Kennedy III

Could you make any comment on what was happening at that time and what kind of value do you give to --

Harriet Woods

Well, I sometimes where the hat as a member of the League of Women Voters, but what you are pointing out -- and I was interested in your inquiry because it is quite true that in the suburban areas, the more affluent citizens, the Board of Election Commissioners did deputize members of the League of Women Voters and other groups to make it easier to register. This was not true in the city of St. Louis where the majority of African-Americans live.

Harriet Woods

Now, the point, and you really brought this out, but what it seemed to me needed to be brought out, Senator Ashcroft said, well, he checked with the local Board of Election Commissioners and the local white Democratic elected officials said we aren't interested in doing this. Everyone from the Missouri, from St. Louis, understands that by tradition there is the white south side in local politics and the black north side. And I can assure you that by tradition, by simple practical politics, the white Democratic politicians on the south side aren't going -- are no more eager than Republicans to get a big turnout because of its impact on local elections from the African-Americans on the north side. So to say they agreed is a little like saying that President Eisenhower called up the politicians in Arkansas and said, Hey, do you want us to come in and do something about getting these kids into the schools? And when they say no, say, OK, we won't do it.

Harriet Woods

That was not his role. His role should have been looking out to make it easier for people of whatever background to be able to exercise their vote and not to reach agreements with politicians about keeping them from doing so. There is no reason why they couldn't have been deputizing in the city of St. Louis.

Joe Kennedy III

As a result of that failure, is it your understanding that there were hundreds of thousands of eligible black voters that were effectively denied the --

Harriet Woods

Well, I would say there certainly were --

Joe Kennedy III

-- Opportunity for registering and participating in the votes?

Harriet Woods

There was certainly a discouragement factor for thousands of African-Americans voters who had to go to a much greater length to do what could be done easily in more affluent areas.

Joe Kennedy III

If I could, I would like to ask Gloria Feldt about Senator Ashcroft's extreme position against contraception. He supported the human life amendment which prohibited the use of common forms of contraception, tried to stop the Federal Employees Health Benefits Program from covering the cost of contraceptives approved by FDA, including commonly used birth control pills and IUDs. He has used the power of high office to block family planning services.

Joe Kennedy III

Let me ask you, would you tell the Committee how much impact, if any, the Attorney General's office could have on the right to access contraceptives? What is your impression given the assurance that you received yesterday and the power of the Attorney General, to what lies ahead in terms of the potential danger of actions that would limit contraceptives to women?

Gloria Feldt

Thank you, Senator. Just to clarify the basis of this point, the medical, scientific definition of pregnancy is implantation. The version of the so-called human life amendment that Senator Ashcroft has supported throughout his entire career is a version which would outlaw all abortion and it would -- and it defines "life" meaning personhood, giving the legal status of personhood, upon fertilization.

Gloria Feldt

What that means is that most of the methods of birth control that we are accustomed to having available to us, such as many kinds of birth control pills, the IUD, injectables and so forth, are thought of by Senator Ashcroft as abortifacients, and that is confirmed in the Dear Colleague letter that he signed to Members of the Senate in opposition to Federal employees' insurance coverage of contraception in their plans.

Gloria Feldt

As Attorney General, I think that his interpretation of when personhood -- I mean, the legal status of personhood begins would be a very major factor in interpreting and crafting and advising. But there are other more sort of not as obvious areas where his interpretation could have an impact.

Gloria Feldt

For example, he could be asked by the Department of Health and Human Services to give some guidance with respect to family planning programs, Title 10 of the Public Health Services Act, which provides a wide array of -- in fact, all medically approved birth control methods to low-income women who are primarily uninsured women as well. So it is not inconceivable that the Attorney General could be asked to define what is a contraceptive under this program, and in so doing render most of the commonly used and, by the way, most effective means of contraception no longer usable within the family planning program.

Gloria Feldt

So, ironically, the outcome could be actually an increase ultimately in the rate of abortion because of the lack of birth control access.

Marcia Greenberger

Senator Kennedy, I wonder if I just might add --

Joe Kennedy III

I think my time is up, Mr. Chairman.

Patrick Leahy

We will go 10 minutes with the Senator from Pennsylvania and then 5 minutes to everybody else because the Senator from Massachusetts had 10 minutes.

Arlen Specter

Thank you, Senator Hatch, for yielding to me. I have other commitments. This has been obviously a tough day, and I appreciate a chance to take this round now.

Arlen Specter

I can understand the concern which has been expressed about a woman's right to choose, and I agree with what Ms. Michelman has said that we wouldn't tolerate dismantling Brown v. Board of Education, and similarly, we can't tolerate dismantling Roe v. Wade. And if I thought that Senator Ashcroft would do that, I wouldn't support it.

Arlen Specter

The issue about what will happen with judges and marshals and U.S. attorneys, at least the practice in the 12 years of President Reagan and President Bush, has been that Senators have a significant amount to say about who those individuals will be. And I can tell you with certainty that there will be some passionate activism, to use your term, Ms. Feldt, on that subject. And the Republicans who have been appointed in Pennsylvania have been noted nationally for balance and moderation, if I may use -- they use that word.

Arlen Specter

When it is said that there is an expectation that the President would appoint a conservative, that really is an understatement because of the way the political process works and the way the primary process works. I spent the better part of a year seeking the Republican nomination for 1996, fully aware of the virtual impossibility of it, but believing that there ought to be a centrist view within the party. And being the only pro-choice Republican in a large field with about 50 percent of the Republicans being pro-choice, it seemed to me that there was an opportunity.

Arlen Specter

I was the only candidate to favor retaining the Department of Education. At least we won that one, although I didn't win it. There still is a Department of Education.

Arlen Specter

But I point this out because of the concerns I have about having some balance within the Republican Party. We sought to change the platform, to take out the litmus test and take out the provision to overturn Roe v. Wade. And President-elect Bush did make commitments on both of those lines, but they weren't as binding as a platform change, in my opinion. And I tried to do that, not successfully.

Arlen Specter

And we do have very firm commitments on the record from Senator Ashcroft that he is not going to move to overturn Roe v. Wade by constitutional amendment, and the fact is he couldn't if he tried. We have had a Republican Congress for 6 years, now going into 8 years, and nobody has even made an effort, at least not a serious effort. And there is a firm commitment that he is not going to use a litmus test.

Arlen Specter

And with the 50-50 split, I think that is an enforceable commitment, both as to the President-elect and as to Senator Ashcroft, if he is, in fact, confirmed.

Arlen Specter

So my question goes to the point about trying to get centrist Republicans to adopt the Feldt doctrine of passionate activism, and maybe even making a heretical suggestion that some Democrats might want to become Republicans, to provide some of the Javits and Heinz and Scott and Arlen Specter point of view. There are some places where people are assigned to both parties so that there is a voice. And you have to give credit to the activists who have dominated the party, the Republican Party. They have done the work. They have been the passionate activists. And we do have a political system, and there is a way to make a modification of it.

Arlen Specter

So when we come to a hearing of this sort -- and I haven't hidden it. I wrote a New York Times article saying that -- perhaps a little presumptuously, saying that the President- elect ought to appoint centrists. But that is the kind of balance we need. But if there is more of a face in the primary process, where a very small number control the outcome and nominate the President, there would be a change.

Arlen Specter

Ms. Michelman, you are a practical -- you are a pragmatist. I know that because I see you working out in the gym with some regularity. We go to the same health club. How about getting some people who have your passionate activism to become Republicans to influence the political process so that you have a voice in who the Cabinet officers, even Attorney General?

Kate Michelman

I couldn't agree with you more, Senator, that it is so important to recognize that freedom to choose is not a matter of partisan politics. It is a fundamental right of women, and it is a fundamental right that guarantees women equality.

Kate Michelman

The reason that I mentioned Brown v. Board of Education in my comments earlier on was because there are signature decisions along the way as those of us in society who are not guaranteed freedoms and equality by the Constitution, we have had to struggle for those rights. And Brown v. Board was an essential milestone along the way to full emancipation, full protection, full equality for African-Americans. So, too, Roe v. Wade, as Justice Blackmun I thought so eloquently put it, was necessary as women continued their journey toward full equality and full emancipation. So it is an issue --

Arlen Specter

Ms. Michelman, I think --

Kate Michelman

-- That rises above and transcends.

Kate Michelman

The problem we have here is that I agree with you, we need to have more Republicans -- and I have to say I have tremendous admiration for the fact that you did run, and I wish you had been the nominee on the other side. But that is a long-term effort that we have to engage in, both short term and long term, that --

Arlen Specter

Ms. Michelman, let me interrupt because the time is fleeting.

Kate Michelman

Sorry.

Arlen Specter

You said the other side. How about joining my side?

Kate Michelman

Joining your side?

Arlen Specter

Yes. How about joining the Republican side --

Orrin G. Hatch

Don't be so shocked here.

Orrin G. Hatch

I have never seen such a shocked look on your face.

Kate Michelman

Well, no, actually, I --

Arlen Specter

You don't have to convince Senator Kennedy.

Kate Michelman

I am an Independent myself, but I think with all -- you know, all kidding aside here, though --

Arlen Specter

I am not kidding.

Kate Michelman

No, but --

Kate Michelman

The issue before us is whether we are going to have an Attorney General that will respect, defend, and protect women's established constitutional rights. While we work to bring more pro-choice Republicans into political positions, we have got to start now making sure that we don't have an Attorney General who is a pathway to overturning Roe v. Wade. And --

Arlen Specter

Ms. Michelman, I have to --

Kate Michelman

The human life amendment is a little bit of a straw man here --

Arlen Specter

I have to interrupt you --

Kate Michelman

-- With all due respect --

Arlen Specter

-- Because time is fleeting, and I am not doing very well with you. I want to turn to Ms. Feldt.

Arlen Specter

How about joining up, Ms. Feldt? How about being passionate to try to influence the other party, make it your party, and have a place at the table?

Gloria Feldt

Senator, as you may know, Planned Parenthood has a very large, very active Republicans for Choice group that is forming chapters faster than you can imagine all over the country and has been active actually for some years.

Gloria Feldt

I just want to tell you a little bit about my own personal experience. I ran the affiliate in Arizona for 18 years. That affiliate was started by Peggy Goldwater, and Barry Goldwater, Mr. Conservative himself, is the person who taught me that a true conservative doesn't want the government telling people what to do about their own personal, private respective choices.

Arlen Specter

Barry Goldwater was the preeminent conservative who said keep the government off your backs --

Gloria Feldt

-- Out of your pocketbooks, and out of your bedrooms.

Arlen Specter

Gloria Feldt

Absolutely.

Arlen Specter

Well, we need to get those Republicans in Planned Parenthood more active.

Gloria Feldt

We are working on that, Senator. I guarantee you.

Arlen Specter

Marcia Greenberger, how about it? Will you join up? I am recruiting.

Marcia Greenberger

Well, I have to say, as I have been sitting and listening to this conversation -- I, of course, come from an organization that is non-partisan entirely, and I think the point of all of this is whether Republican or Democrat for this Senate, for those who believe in Roe v. Wade, Senator Specter, as you do, the issue isn't what party you are. The issue is: What is your commitment to the principle of Roe v. Wade and other constitutional principles at stake here, including 14th Amendment, equal protection, so important for women and minorities?

Marcia Greenberger

And I do want to say I respect fully that you said if you were convinced that Senator Ashcroft would overturn Roe v. Wade you wouldn't support him. And you cited a constitutional amendment and the litmus test points, and I wanted to go to those points precisely.

Marcia Greenberger

He can -- and I think our concern is that he will -- effectively overturn Roe v. Wade not through a constitutional amendment, which an Attorney General, we agree, would not have a role in pursuing, but by defining Roe v. Wade, even if he says he is not trying to overturn it, in such a loose fashion that it is completely eviscerated.

Marcia Greenberger

Now, I want to say that when he came as the Missouri Attorney General to this U.S. Senate in Washington in 1981 and testified in favor of a human life bill -- bill, statute, not constitutional amendment -- which Gloria Feldt described and how extreme it was, he said among the points, the legal points he was making, that it was constitutional under Roe v. Wade. When he has committed not to try to turn over Roe v. Wade -- and I want to question the commitment he even gave on that because he said he didn't think it was an agenda, he didn't really commit even on that point. What did he mean by Roe v. Wade if he could come and testify that Roe v. Wade was consistent with his human life bill that he was supporting?

Marcia Greenberger

It is the antithesis of Roe v. Wade. So for him to say that he won't seek as an activist agenda matter to overturn Roe v. Wade, but what he means by that is that he can still push for and find constitutional under Roe v. Wade as Attorney General his human life bill, then I cannot help but say the American women in this country and all of us who care about the right to choose were given no guarantee whatsoever but what we heard.

Arlen Specter

Well, I appreciate your arguments, but it comes back to a place at the table and a basis in the party, and I would urge you to consider what I have said so that you have a place at the big table.

Arlen Specter

Thank you very much. Thank you, Senator Hatch.

Patrick Leahy

Mr. Susman, I can imagine that the nurses in the case in 1983 that you mentioned earlier were very upset to be threatened to go to jail after then-Attorney General Ashcroft issued his opinion to stop nurses from providing access to contraceptives and family planning services. My wife is a registered nurse. I can imagine what her reaction would be if somebody told her she could go to jail if she told a patient anything about contraceptives or family planning services. It sounds like something out of the 19th century.

Patrick Leahy

Now, how significant was this case and the defeat of what then-Attorney General Ashcroft tried to do to the nurses in Missouri?

Frank Susman

I think you can tell the significance of the case by merely going to Exhibit A of the Supreme Court's decision which lists the amicus parties that were involved in this case who saw fit to have their voices from all around the country heard by the Missouri Supreme Court. But you have to remember that they not only were going to charge the nurses with the crimes of practicing medicine without a license; the State Board of Registration for the Healing Arts also told the physicians who were writing these standing orders that they would be charged with the crime of aiding and abetting the nurses by actually writing these orders.

Frank Susman

This is a practice that was in effect in 40 of the 50 States at the time. It was not uncommon for advanced nurse practitioners to do all of these services that I listed. This was routine. This was the way every county health department --

Patrick Leahy

So let me make sure I understand this. Under then-Attorney General Ashcroft's position, the doctor wrote an order for a contraceptive, the nurse practitioner, who was required to have a high degree of schooling and an advanced degree, then were to pass out the contraceptive following the doctor's orders. If so, they could both go to jail?

Frank Susman

Oh, absolutely. Practicing medicine without a license.

Patrick Leahy

Does this seem kind of 19th century --

Frank Susman

It caused panic because many of the doctors in these family planning clinics resigned, just from the threat, resigned their practices.

Patrick Leahy

So the concern that you were expressing this morning is not just the question of Senator Ashcroft's position on a woman's right to choose, but on a woman's right to choose a method of contraception.

Frank Susman

Absolutely. That is all the case dealt with, was contraception. I mean, family planning clinics -- and, again, these were in the federally designed low-income counties, counties in which you did not have a single physician who would give prenatal or childbirth services to women because of the low rate of pay established by the Missouri Medicaid program. Not a single physician in these counties offered services to indigent women. And this was the only outlet for indigent women to be able to control their reproductive destinies that were being shut down.

Patrick Leahy

Mr. Hunter, I noticed in your testimony you mentioned the Mound City Bar Association of St. Louis, one of the oldest African-American bar associations in the country -- incidentally, one of the most respected ones -- commended John Ashcroft in 1991 for appointing an African-American judge. Is that correct?

Jerry Hunter

We should note, though, for the record that the Mound City Bar Association, however, has come out against John Ashcroft to be Attorney General, and they have stated very clearly that they oppose his nomination based on his treatment of Judge Ronnie White. I will enter a letter into the record, that says, among other things, "the attack on Judge White is an attack on all persons who possess similar values; the MCBA has long stood for the rights of the accused to get a trial free from bias; Judge White's position is similar to us; Mr. Ashcroft has spoiled an opportunity for the Federal bench to become a more diverse institution; consequently, while we have been silent on this nomination up to this point because of the impression left by previous statements of the association, we must make it clear that this is not a nomination that we can support; simply put, the chickens come home to roost."

Patrick Leahy

Patrick Leahy

Ms. Woods, Senator Ashcroft, I feel, deserves credit for selecting Mr. Hunter as his first Secretary of Labor when he served as Governor of Missouri from 1985 to 1993, and I understand, Mr. Hunter, you have set a standard that other Governors could look at for similar positions.

Patrick Leahy

But Senator Ashcroft in his opening statement stated during the Governorship he took special care to expand racial and gender diversity in Missouri's courts. I am going to ask a little bit about that. As his Lieutenant Governor, I am sure you are familiar with his record. Tell me if this is correct: that Mr. Hunter was the only African-American or minority to serve in then-Governor Ashcroft's Cabinet, which is made up of 15 department directors, during his first 4 years; and that the African-American leaders of Missouri were critical of his failure to appoint more minorities.

Harriet Woods

Well, yes, the answer is there was only one appointment, and the head of the National Association of Blacks within Government noted in 1988 this one black member in Ashcroft's cabinet, but that, "In most offices in Jefferson City, it is an ocean of whiteness."

Patrick Leahy

Do you know Representative Shelton?

Harriet Woods

Oh, yes, the Representative, and he reacted to the failure to sign the -- I'm sorry.

Patrick Leahy

Oh, go ahead.

Harriet Woods

There are so many things I think have caused the African-American community to feel that Senator Ashcroft could not be counted on to give them justice, and one of them was Governor Ashcroft, then, being one of only two people who refused to sign the One-Third of America Report which was signed by former Presidents, Republican and Democrat, and, of course, Coretta Scott King, which because he said that it really exaggerated the plight of African-Americans.

Harriet Woods

Whether one differed or not with a degree, this was a chance at a national report to bring the attention of the whole country, if you really wanted to provide leadership, if you really were concerned, and let me just add one other thing. He and I served on something called the Board of Public Buildings, which handled contracts in State government, and it was perfectly obvious that minorities and women were not getting a full share of State business, but his response was whatever we are doing is the law. My response was we have got to be creative, we have got to reshape these contracts so that small contractors, as minority and women usually are, can get them. He wouldn't do anything, and ultimately our office just refused to sign one of the contracts until they started a minority program.

Harriet Woods

So what I am saying to you about this, and I realized you gave me a specific question about his position, I just don't feel he -- this was a priority for him to open up more opportunities.

Patrick Leahy

Does anybody here disagree that his Human Life Act, which he introduced, was patently unconstitutional on its face, the Act that he subscribed to and urged passage of, the Act that would basically by a statute overturn Roe v. Wade? Does anybody feel it is constitutional?

Kate Michelman

Gloria Feldt

I take it by your answers, everybody feels it is unconstitutional. Thank you.

Patrick Leahy

Patrick Leahy

Judge Robertson, I have been led to believe that in the nurses case, Attorney General Ashcroft never questioned the constitutionality of the statute in question. Additionally, not only did the Office of Attorney General represent the board, it also found an amicus brief on behalf of the Board of Nursing urging an interpretation of the statute consistent with the position taken by the nurses.

Orrin G. Hatch

Orrin G. Hatch

Now, the Supreme Court's opinion, as I understand it, agreed with the position taken in the amicus brief. Am I wrong on that?

Edward Robertson, Jr.

No, Senator. You are 100-percent right. When I read the news accounts of this Sermchief case as the person who was responsible for approving much of the litigation in the Attorney General's office during this period of time, it didn't read like anything that I had been involved in.

Edward Robertson, Jr.

So I went and got some research done. What I discovered was that the Board of Healing Arts was represented by private counsel and not the Attorney General's office, that the doctors had enough money to pay private counsel and not use the State lawyers. That is first.

Edward Robertson, Jr.

Second, that Mr. Susman filed the lawsuit after the Board of Healing Arts on the advice of their counsel, indicated that they might be in violation of the law. The Attorney General's office merely intervened to protect the constitutionality of the statute, and I have the briefs filed, Senator, by the Attorney General's office in the Missouri Supreme Court with me today, one of them on behalf of the Board of Nursing, and I am going to quote from it if I might, "urges the Court to find that the law under question should be interpreted broad in scope allowing flexibility in nursing practices." That is the first brief.

Edward Robertson, Jr.

The second brief filed on the merits by the Attorney General's office indicates to the Supreme Court merely that the Attorney General's office was intervening for the sole purpose of protecting the constitutionality of the statute and took no position whatsoever on the question of what the nurses could or couldn't do. All of these acts were consistent with the Attorney General's responsibilities and are inconsistent with some of the testimony that you have heard today.

Orrin G. Hatch

Well, Mr. Chairman, I believe Senator Kennedy expressed concern yesterday and again today that the St. Louis Board of Election Commissioners, that he alleged was appointed by Senator Ashcroft, may have refused to deputize private voter registration volunteers because these voters were primarily African-American and voted Democratic, at least that is the accusation.

Orrin G. Hatch

I thought it would be of interest to the Committee to know that the city board, and you correct me if I am wrong, I don't believe I am, the city board had a long history of refusing to deputize private voter registration deputies long before John Ashcroft appointed anyone to that board.

Orrin G. Hatch

I know this because a lawsuit was filed against the members of the St. Louis board appointed in 1981 alleging the same concerns that Senator Kennedy expressed, and the Federal District Court for the Eastern District of Missouri explicitly rejected charges of racial animus finding that the board properly refused to deputize volunteers to prevent fraud, ensure impartiality, and administrative efficiency.

Orrin G. Hatch

Now, these conclusions were sustained by the Eighth Circuit, as I understand it, in an opinion by Judge McMillan, a prominent African-American jurist.

Orrin G. Hatch

If I could, I would like to submit copies of those opinions for the record.

Orrin G. Hatch

Now, Judge Robertson, do you have anything to add to that, and would you like to comment on some of the assertions of Ms. Woods here today? Your statement was followed by Lieutenant Governor Woods who described a number of actions by then- Governor Ashcroft. So I would appreciate it if you would cover those two areas and any others you care to cover.

Edward Robertson, Jr.

Governor Woods and I used to play tennis together when we were in Jefferson City, and we have even been on the same side, but it doesn't appear that we have made that jump today.

Edward Robertson, Jr.

Edward Robertson, Jr.

Let me suggest that the case that Governor Woods spoke of comes -- with regard to the Lieutenant Governor's authority comes from a history in Missouri where there was a Governor who was literally held hostage in the State by a lieutenant Governor --

Russell Feingold

Excuse me just for a moment.

Russell Feingold

Mr. Chairman, it is very difficult to hear on this end. I just wonder, is there a way you could speak more directly into the microphone?

Orrin G. Hatch

Maybe even a little more slowly.

Patrick Leahy

I would also ask if there is somebody who could double check it. Really, the sound system is leaving something to be desired.

Patrick Leahy

Ms. Campbell, I think, is having difficulty. There are dead places in the sound. Maybe we could ask one of the engineers to see if they can boost it up.

Patrick Leahy

I see the red light is on.

Edward Robertson, Jr.

Patrick Leahy

No, that is all right.

Orrin G. Hatch

No, that is fine. Some of the time has been eaten up here.

Edward Robertson, Jr.

An 1883 decision of the Missouri Supreme Court, which was cited in the case to which Governor Woods referred, ruled that when the Governor of Missouri was out of the State, he could still receive compensation, and I think Governor Ashcroft's comments with Governor Woods at the time were designed merely to say let's try and get along, but if we don't, I have legal authority here from an 1883 Supreme Court decision that makes it sure that I don't have to tell you when I leave the State. Absent that authority, I believe he never would have had the conversation which he reports.

Orrin G. Hatch

Just one last question. I would like to ask Ms. Campbell this question.

Orrin G. Hatch

Orrin G. Hatch

Some have tried to call John Ashcroft insensitive, among other things, that are not justified by his private deportment and public record. Ms. Campbell, I wonder if you would discuss whether you and the people you represent feel John Ashcroft is sensitive to victims of crime and why you and your group think John Ashcroft is the right person to be Attorney General from the perspective of crime victims.

Collene Campbell

Well, Senator Hatch, let me tell you, particularly this week, I would not have been here if I did not have a lot of people feeling very strong about this.

Collene Campbell

I am sorry that Senator Feinstein wasn't here a while ago, but the 12 victims organizations in the State asked me to come here because they had followed Ashcroft's record as to what he has been doing.

Collene Campbell

One of the things that he did was work on the Victims' Constitutional Amendment that Senator Feinstein was working on and was very involved in that. Not too many people got deeply involved in that. Senator Kyl did. That tried to address on a Federal level a lot of the inadequacies that we have on the State level.

Collene Campbell

If we have 3 days, I could go over the things that are happening that shouldn't be happening to victims. Victims are probably the only people that didn't do anything to get where they are. It just happens that anybody in this room could share the pain that I am feeling right now, just like that.

Collene Campbell

Things that I endured -- and when I say "I," I can only speak for myself because everybody goes through this. Both men that strangled my son and threw him out of an airplane, they were being tried for special circumstances, the death penalty. In the State of California, they are not entitled to bail, but guess what? They had bail. They appointed four defense attorneys for them.

Collene Campbell

We had a deputy D.A. that, bless his heart, we were his first case, and he was very overworked. I had to ride up the elevator with the two men that strangled my son.

Collene Campbell

I don't know what you can do about things like that, but that is trying a mom right to the top because I hate to tell you the thoughts that I had on that elevator, and we wouldn't have been able to have a trial any further if what I wanted to do, I would have done.

Collene Campbell

There is a notice of appeal situation where they filed an appeal, the men were in prison, all the family members of the murderers were notified. Not us. We read it in the headlines of the front paper that the men who murdered our son were out. These are the things that John was trying to do something about in the victims' bill of rights saying that people are notified, that they can protect themselves.

Collene Campbell

I mean, it is just common sense saying that unless you are there, you don't know what it is not taking place in our country, and if anybody says he is insensitive, I have got to tell you, I have got a bone to pick with them because he was on the board a long time ago.

Orrin G. Hatch

Well, thank you very much.

Collene Campbell

At this time, I would sure like to thank my Senator from the State of California for all she has done for victims' rights. I really do appreciate it, and that is a Republican to a Democrat, and I called and told her that I voted for her.

Patrick Leahy

Well, you voted right. She is a good person, and we are fortunate to have her on this Committee.

Patrick Leahy

You had a request, Senator Kennedy.

Joe Kennedy III

Mr. Chairman, in response to Senator Hatch's comments about the registration in St. Louis, I would like to include in the record at this time what the registration was when Governor Ashcroft became Governor and then information demonstrating the collapse in black registration in St. Louis when he left, and then how it increased again when Governor Carnahan came in. I will put in those statistics, and I think they speak very clearly for themselves.

Orrin G. Hatch

Well, my point was the Democrats controlled the process. I don't know how you blame Senator Ashcroft for that.

Joe Kennedy III

Excuse me. Excuse me. They did not, not when the Governor was the Governor. He controlled the process, Senator, and he is the one who vetoed.

Orrin G. Hatch

Those local boards controlled the process.

Joe Kennedy III

No. Under the Missouri constitution he had direct responsibility.

Orrin G. Hatch

Yeah, blame him.

Patrick Leahy

Gentlemen, gentlemen, please. A little understanding.

Orrin G. Hatch

I am trying to be understanding.

Patrick Leahy

We have to understand if anything good happened, apparently if anything good happened while Senator Ashcroft was Governor, then he takes full credit for it, and if things weren't done right when he was Governor, then the Governor had nothing to do with it. You have got to have it one way or the other.

Jon Kyl

Just like the Presidency, right, Mr. Chairman?

Patrick Leahy

Just like the Presidency. You can't have it both ways.

Orrin G. Hatch

The Senator from California.

Patrick Leahy

Dianne Feinstein

I want to welcome you here, Ms. Campbell, very much. I am very sorry what happened to your son.

Dianne Feinstein

Dianne Feinstein

You should know that my leader on the Victims' Right Constitutional Amendment is Senator Kyl. We got it out on the floor at the last session. We came a cropper. We withdrew it. We will resubmit it this session, and I hope you will come back.

Collene Campbell

I want to be here when you do, and I do not want it weakened.

Dianne Feinstein

Thank you very much. Thank you. I appreciate that.

Dianne Feinstein

Kate, if I might say to you, I am really pleased that you mentioned, although it was very brief and I don't know if people really heard it, how important Roe really is in this whole effort of women for equality, and I think many people in this country think women were born with this equality and they don't realize we couldn't inherit property, we couldn't get a higher education, we couldn't own property, we couldn't vote, for so many years of this Nation's life. The ability not to have politicians interfering with our reproductive system is really a very important concept in women being able to stand tall and make their own decisions based on their religion, their beliefs, their morality, their family, and that that is really what this is all about, and that is why it is so important to those if us who are pro-choice.

Dianne Feinstein

Now, having said all of this, I am one of those that was really amazed when Senator Ashcroft said Roe has been settled, I respect that, I will not bring a case, when he also said in response to a question, he will maintain the task forces.

Dianne Feinstein

I wanted to ask the people that are really knowledgeable in this area. With respect to the access to clinics which is known as FACE -- everything here gets to be an acronym. I kind of don't like it. I like to say what it is. In that Act, there are some specific terms. For example, Section 3(e), the term "interfere with" means to restrict a person's freedom of movement. Also in 3(e), "intimidate" means to place a person in reasonable apprehension of bodily harm to him or herself or another. Section 3(c), "physical obstruction" means rendering impassable ingress to or egress from a facility that provides reproductive health facilities, or rendering passage to or from such a facility unreasonably difficult or hazardous.

Dianne Feinstein

Now, there is some concern about changes of definitions. Do any of you support any change of definition, or are those the definitions that you feel are really important and as part of any Attorney General's mandate should be carried out?

Marcia Greenberger

I think those are very important definitions, but I also think that some of those words are open to some interpretation, and it is very important not only to have the definitions, but to have strong interpretations of what those statutory definitions mean.

Gloria Feldt

I will just add to that, and, again, I am going to speak right now from the perspective of an on-the-ground provider who has actually dealt with law enforcement at all levels. I know less about the wording of the law and more about what it means in the real life of people who are trying to provide services, but I do know this, and that is that it has taken several years to actually hammer out an understanding that is now agreed upon to a reasonable extent and being able to be carried out to a reasonable extent by law enforcement at all levels because the U.S. Justice Department does not ever have the personnel to be able to enforce all of these laws uniformly across the country. It really does take using their bully pulpit and their leadership and their prioritizing of resources to make sure that their people will take the time and the energy and the leadership at the local level and the State level to bring together the various law enforcement agencies so that they are all working off of the same page and so that they will use that not just to apprehend a criminal once something terrible has happened, but rather to be able to prevent the violence and harassment and threats.

Dianne Feinstein

Well, I would strongly agree with that.

Dianne Feinstein

Now, my interpretation, and I want to put this in the record, from what Senator Ashcroft said is that he would fully enforce, not only the word, but the intent of the freedom of access to clinics law, and that he would preserve the task force and that he would adequately fund it. "Provide it with resources," I believe was the language that he used, and I think that is very important to get in the record.

Kate Michelman

Well, I would just like I say I agree completely it is important to get it in the record, and I appreciate the point that you are making.

Kate Michelman

This law, the freedom of access to clinic entrances law, has been challenged repeatedly by those who oppose a woman's right to choose abortion, and universally throughout the country, courts have said this law is constitutional, that it does not prohibit freedom of expression, freedom of speech, and the right of those who oppose to prey and speak out, march with signs, et cetera, but it continues to be challenged, and the question I think a lot of us have is with John Ashcroft, Senator Ashcroft at the helm of he Attorney General's -- at the helm of the Justice Department, what kind of interpretation will he give, is this settled law or is it not settled law.

Kate Michelman

You raised, Senator, he said he would honor and respect and protect settled law. Well, many of the questions that come up in the area of reproductive rights law and policy are, according to many, not quite settled. Some of the questions and some of the issues that come before us, many of them will be a matter of interpreting the law, and with all due respect to Senator Ashcroft, again, his record of 25 years of unmitigated attempts, active participation in dismantling this law, the laws that protect women's reproductive rights, contraceptive access as well as abortion access, just speaks loudly to the view that he -- it is implausible to think that he would as Attorney General interpret, not just the enforcement part, but interpret the law that would guarantee women's rights. It is just implausible.

Kate Michelman

But I think there is a lot of room for an Attorney General to question whether a law is really settled.

Dianne Feinstein

Well, I would be very happy if you -- you see, I was very puzzled by the hearing because I saw a distinct change.

Kate Michelman

And I accept and I recognize his point that he would enforce the law, and those of us that know him and who have worked with him have found that he has kept his word, and that is an important thing around this place. If somebody gives you their word, they keep it, and he has done that. Therefore, there is also a tendency to take him at face value.

Dianne Feinstein

Dianne Feinstein

So, if you have any questions that you think we could further clarify this, because this is a very important area -- and I view this as coming really from the administration, and I think we need to know exactly what it is before we get hornswoggled.

Marcia Greenberger

Senator Feinstein, I just wanted to underscore that that is a point I was trying to make; that I don't question his word. I think there may be miscommunication about what he means when he says the law and settled law and what you or others may think he means about the law and which parts of the law are settled and which parts when they come up in the future, he might say, well, that is an interpretation that isn't part of settled law. So I think that he may be fully committed to enforcing the law as he sees it.

Dianne Feinstein

Well, would you give us the specific question on the parts of the law that may not be settled and let us ask his view in writing, hopefully to get a prompt response before there is a vote?

Marcia Greenberger

Yes. Thank you, Senator Feinstein.

Kate Michelman

One just final comment. The concern is that if he is Attorney General and he is as Marcia said, interpreting the law differently from the way we believe the law now states, the protections the law guarantees, it will be too late after he is Attorney General for the women of this country as we find that his interpretation of the law, whether it is settled or not in all the aspects of the law that come up for us, it will be too late for women then.

Dianne Feinstein

Well, let me just respond to that, just quickly.

Patrick Leahy

We really --

Dianne Feinstein

Very quickly. I mean, we are a 50-50 body.

Patrick Leahy

You have had your time, Senator.

Dianne Feinstein

The Judiciary Committee is the oversight Committee. Senator Hatch is a man of great integrity.

Kate Michelman

Yes, he is.

Dianne Feinstein

He has heard this entire discussion. I think if the Attorney General were to depart from this, I would be the first one that would importune Senator Hatch to bring him up before the Committee.

Orrin G. Hatch

I can guarantee you that. I can guarantee that you would be the first one.

Patrick Leahy

I was going to finish your sentence for you, Orrin, because I know exactly what you meant. You were not agreeing that easily.

Orrin G. Hatch

Let me tell you, I know my place, too.

Marcia Greenberger

Can a witness insert a quick point?

Patrick Leahy

That is, much of what we are worried about, it never often comes to your attention, to our attention, in order to hold an Attorney General accountable. That is what is so important here. Much of it is prosecutorial discretion. Much of it is private advice. Much of it is a matter of such, I guess, personal interactions that we, the public, and unfortunately the Senate would never know --

Marcia Greenberger

Patrick Leahy

And that is a point that has been made a number of times at these hearings, and we will stop at that point.

Patrick Leahy

I would emphasize, because Ms. Greenberger raises the subtleties of something like that we have to look at it, and that is why you have to make a judgment call.

Patrick Leahy

There will be the record. Following our normal thing, the record will be available for additional written questions to Senator Ashcroft. The members of the Republican Party have some they want to submit through Senator Hatch. The Democratic Party will submit through me. He understands that he is available to respond to those. That is our normal practice.

Patrick Leahy

I would turn to the Senator from Arizona, and obviously he has some extra time.

Jon Kyl

I really want to direct my first remarks to Senator Feinstein, and then I will talk to the panel for a moment.

Jon Kyl

Jon Kyl

First of all, the issues that have been raised here and the process is exactly correct, as you have described it, in my view. There will be disputes as long as there are lawyers, and, unfortunately -- well, my wife might argue with that. I am a lawyer, a recovering lawyer, namely. There will always be lawyers. There will always be disputes about words, and there will never be an end to litigation. Those who are responsible for taking positions will, therefore, always have to make judgment calls. You all are absolutely correct on that. Therefore, you have to ask carefully what kind of a person is going to be making those judgment calls, what kind of commitments has that person made.

Jon Kyl

Having acknowledged that, I believe that your area of concern here is misplaced. First of all, there is an assumption that John Ashcroft disagrees with the particular law that you are concerned with. He testified that he has no argument with that law. I personally have no argument with that law, and I sit here today committed to you, committed to Senator Feinstein. You will not have to, first of all, contact Orrin Hatch. You can contact me, Senator Feinstein, because I am committed to the enforcement of the law in every appropriate respect. Senator Ashcroft said that he was, too. So there shouldn't be any question about whether he will do so.

Jon Kyl

Does he like what goes on in the clinics? No. But is it appropriate to protect people's rights to enter any place without undue harassment and violence? Yes, a clear constitutional principle that should be applied in many different situations. In fact, I have personally litigated it in labor disputes. It is not an unfamiliar legal principle. So there should be no argument here about that, irrespective of his and my concern about some of the things that go on inside the clinics.

Jon Kyl

If there is, Senator Feinstein, you let me know. We will march down and talk to John Ashcroft, and I simply don't believe this is going to be a problem.

Jon Kyl

There are some other things that you are concerned about, and I cannot make that same degree of commitment because I am just not totally familiar with it, but I make that commitment to you personally, and I believe I can also speak for the Attorney General to be, I hope.

Jon Kyl

Secondly, let me welcome you, particularly Gloria Feldt who also spent time in Arizona, a friend, at least I considered her a friend, notwithstanding some of our differences.

Jon Kyl

I also want to, again, welcome Collene Campbell. You came here on your own dollar, as I understand. Is that right, Collene?

Collene Campbell

You testified before, I think it was, 4 years ago when Senator Feinstein and I had a hearing, and at that time, you were just beginning your political career. I wanted to go back.

Jon Kyl

Collene Campbell

No, I just didn't tell anybody about it.

Jon Kyl

Right. You have completed your second term as Mayor of the city of San Juan Capistrano, as I understand. Congratulations on that.

Jon Kyl

You also said that you served as chairman of the Peace Officers Standards and Training Commission and served on the California Commission on Criminal Justice. So you come before us not just as a personal victim of crime, but also as a representative of others. Is that correct?

Collene Campbell

I was authorized to represent the people that I told you about earlier. I guarantee, everybody in San Juan Capistrano feels the same way I do. I am not sure about the POST Commission. I didn't ask.

Jon Kyl

Mr. Chairman, I will just ask at this point to submit in the record a list of all the several organizations. I know Senator Feinstein would be interested in these, too, because, in fact, I am sure she is familiar with many of them. They are all California victims' rights organizations.

Jon Kyl

One of the key questions Senator Feinstein said to me yesterday, I think one of the questions we have to answer is will Senator Ashcroft follow the law, and that is a totally appropriate question.

Jon Kyl

She and I have a particular concern about that because, despite the law and sometimes despite their best intention, even judges haven't followed the law frequently with respect to victims' rights. There are other things that are of a higher priority.

Jon Kyl

A Department of Justice study said that these laws are honored more in the breach than the observance.

Jon Kyl

Unfortunately, here is where you get into this matter of discretion. We believe that the current Department of Justice has interpreted the law in such a way that it did not feel it was in a position to help us, and as a result, it did not help us in getting our constitutional amendment to a vote on the Senate floor.

Jon Kyl

I happen to think John Ashcroft will see it a different way, and he will help us to do that, and that is one of the reasons why I am so strongly committed to him because I am so strongly committed to this issue. I know from your testimony earlier, Collene, that you said if this were not so important, I would not have come, considering the recent death in your family and the other tragedies that you have had to endure. I think sometimes we do have to feel some passion about these things. We do have to insist that the law will be enforced, but it is not just some of the laws that have been talked about here. It is also the victims' rights laws and hopefully amendments that we have been talking about.

Jon Kyl

Just a final point since the red light just went on.

Patrick Leahy

The Senator has extra time.

Jon Kyl

I appreciate that, Mr. Chairman, but I also appreciate you have been trying to move things along.

Jon Kyl

Not everybody on the dais right here was able to here all of the testimony, and with the greatest respect to Harriet Woods who served her State with great distinction, it was a totally different John Ashcroft described by Jerry Hunter than it was described by you, and if Jerry Hunter could take just 30 seconds for the benefit of those who weren't here to describe the John Ashcroft he knows, I think that would be beneficial since you had your opportunity to do it a second time.

Jerry Hunter

Thank you, Senator Kyl.

Jerry Hunter

I will just take a brief 30 seconds, as you say, but I would like to go back and just briefly mention in response to a question that Senator Hatch asked about the St. Louis City Election Board, and I will briefly comment that when Governor Ashcroft was elected, as I indicated, he tried to appoint responsible people in all positions of State government. He came up with a group of individuals, both white and black, to put on the St. Louis City Election Board. One of his first nominees for the St. Louis City Election Board was a black attorney in St. Louis.

Jerry Hunter

In the Missouri system, when a Governor is appointing an individual that requires Senate confirmation, you have to get the State Senator of that district to introduce that individual.

Jerry Hunter

Governor Ashcroft, the first black nominee for the St. Louis City Election Board was rejected by the black State Senator because that person did not come out of his organization. He came up with a second black attorney in a different senatorial district to put on the St. Louis City Election Board. That second black attorney was rejected because, again, the two black State Senators did not feel that they could introduce those individuals because they did not come out of their political organization.

Jerry Hunter

So, from the beginning, any efforts to make changes in the St. Louis City Election Board were forestalled because State Senators wanted people from their own organization, and even though John Ashcroft was the Governor, they felt they should be able to name those individuals.

Jerry Hunter

As I mentioned in my testimony, Governor Ashcroft's office called me shortly after his election and said he wanted to find good people and particularly of all races and African-Americans to appoint to positions, and they asked me if I would work with him. I was practicing law in St. Louis at the time, and I worked with him for a year and a half, prior to becoming the director of the Department of Labor, and Governor Ashcroft appointed, as I indicated, numerous blacks to State boards and commissions. He appointed myself as Department director. He appointed the first blacks to serve as administrative law judges in the State of Missouri, both in St. Louis and Kansas City, and in St. Louis County.

Jerry Hunter

Unfortunately, I think there is some testimony, obviously, which I don't agree with. Clearly, Governor Ashcroft had certain standards. He wanted people who could think on their own who didn't have to call the ward leader and ask the ward leader how they should vote on issues, and I think that is one of the differences that I saw in Governor Ashcroft and maybe in appointments prior to that.

Jerry Hunter

The other thing I do want to just briefly mention, and I will stop here, there was a reference -- and I think my good friend, Ms. Woods, indicated it, and I don't want to make this too political -- about how the State of Missouri would not want to find education in the urban area of St. Louis City and St. Louis and Kansas City, and I think in this past election, our current Governor who was running against Congressman Jim Talent, was running ads in our State of Missouri saying that Congressman Talent was going to take all the money, education money from rural Missouri and give it to the rich St. Louis County school districts, and I heard those ads as I traveled throughout the State of Missouri.

Jerry Hunter

So I think that should be on the record because, clearly, I thought that was unfortunate. It played to the suspicions that people in our State of Missouri have of St. Louis, and that ad clearly was run to damage Congressman Jim Talent.

Patrick Leahy

I have noted it a couple of times during these hearings, but we get some inquiries from the press, and sometimes C-SPAN and others. I notice that some Senators have been in and out of this hearing. It is not because there is any lack of interest in either the Republican or Democratic side. We have several nomination hearings going on at the same time. The Senator from New Hampshire, for example, has had a nomination hearing. Senator Feinstein and Senator Cantwell have been in Energy all day today. Senator Biden and Senator Kennedy have had other hearings. Actually, Senator Hatch and I have had to miss some Committees we are on because we are doing this, but just so people understand and all the witnesses and States are wanting to be heard, all of our staffs are here for all of this. Senators are in a not-unusual circumstance of having to be four places at once.

Patrick Leahy

For example, I am on the Agriculture Committee. President- elect Bush has nominated from California, Ms. Campbell, Ann Veneman to be Secretary of Agriculture. I wanted very much to be there today to applaud President-elect Bush for that appointment. I knew Ms. Veneman when she was Deputy Secretary of Agriculture. I think it was an excellent choice. I think Californians probably feel that way. I think there will be unanimous support from Republicans and Democrats from California.

Patrick Leahy

But that is just an example of what is going on. I just wanted to put that on the record so people would fully understand.

Patrick Leahy

Senator Feingold?

Russell Feingold

First, let me thank all of the witnesses, and especially Ms. Campbell for coming here after a personal tragedy.

Russell Feingold

Russell Feingold

Let me make a couple of comments and general points before I ask a question. First, I want to commend the chairman for how he has arranged and handled this morning's testimony. The disagreement over the confirmation of Judge Ronnie White is controversial, potentially very divisive, and I hope that everyone on the Committee could now agree that both sides were treated fairly, given ample time to discuss their positions, and most importantly, that both sides had those positions aired with dignity, and I, again, thank Chairman Leahy.

Patrick Leahy

Second, I want to say again to the witnesses, some of whom have already testified before and some who are testifying now, as I said in my opening statement, I think the efforts that are being made to raise questions about this nomination are entirely appropriate. This is a highly controversial nomination. I am glad this scrutiny is taking place because I believe these issues have to be debated.

Russell Feingold

Russell Feingold

If nothing else, if Senator Ashcroft is confirmed, he will be more aware of the heavy burden he bears to convince all of the American people that he will be fair and even-handed and work for all their interests, and even though this is a difficulty and grueling process, I don't think there is anything wrong for that kind of scrutiny. In fact, given the tough issues that this Committee takes on and that an Attorney General takes on, I can't think of a place where it is more appropriate.

Russell Feingold

Let me ask Ms. Feldt, Ms. Greenberger, and Ms. Michelman a question after making a couple of comments. I agree with Senator Feinstein and just about everybody else that we were struck with the strength of Senator Ashcroft's comments about enforcing the law, probably a little stronger than many of us would have expected with regard to Roe v. Wade, and I think it is going to be difficult for him to parse his words if he becomes Attorney General.

Russell Feingold

I would expect him, as some of the Republican members have indicated here, to live up to the spirit, not just the letter of the law, and I think that is exactly what the three of you are trying to address, that it will not be sufficient to simply somehow point to a few words in Roe v. Wade and use an interpretation that will completely undercut the right to choose.

Russell Feingold

So, in that spirit, I would like you to say a little bit more about your concerns with the nomination. As you know, I have made this clear. I am not very persuaded when you tell me about his votes and his vetoes. I don't buy that as a reason to not put somebody in a position.

Russell Feingold

What is more central, as Senator Schumer has well said, is whether he can turn the spigot off, whether he will enforce the law, and you have talked about at least two areas that relate to this, the position or interpretation he may take working with the Solicitor General on interpretations for the Constitution. Another is what literally will be done in terms of enforcing the law, but a third -- and I think you have already touched on it, but I would like each of you to talk more about it -- is his role as an administration in terms of personnel and budgets and resources.

Russell Feingold

What concerns would you have in terms of the choice issue with regard to the Attorney General Ashcroft, if he becomes Attorney General in terms of the administrative role, starting with Ms. Michelman.

Kate Michelman

Well, my number-one concern, of course, is that as an administrator, as a leader, the Attorney General sets the tone, establishes the values and the principles by which the Justice Department carries out its duties, and with all due respect, again, to Senator Ashcroft, you have heard 2 days of testimony. It strains a bit of credulity, I think, to hear 2 days of testimony against 25 years -- 25 years of not just passive opposition, but active participation in undoing -- trying to undo a fundamental constitutional right of women that took us a century to achieve, and it has taken many forms.

Kate Michelman

So my first concern would be the values in the principles he brings, the leadership he brings, and what values he wants the Justice Department to uphold.

Kate Michelman

Second is what kind of people is he going to select, and if those values and those views and those principles are hostile to the integrity of women and to our established constitutional rights, it seems to me his selection of people who work for him will be informed by those views, and, therefore, will have more people in the Justice Department who will join with him in his interpretation of the law as it relates to reproductive rights.

Kate Michelman

His priorities, we have already talked about that a lot, what kind of priorities he will bring to bear for the Justice Department.

Kate Michelman

You know how it is as a manager, as an administrative. You have to establish goals. You can't do everything. You have got to establish your goals and your priorities. Is he going to put the full force of the Justice Department behind enforcing all of the laws that protect women's constitutional rights of freedom of choice? I just think there are so many ways that as the Attorney General he will -- so many ways, a myriad of ways, some of which we have elaborated, some of which we haven't even touched on, some of which, as Marcia said earlier, are yet unknown or we won't even know about, that he will have an influence on the future of a woman's right to choose and the laws that protect and guard our constitutional rights.

Kate Michelman

The Attorney General is a prominent Cabinet member. He is not, you know -- it is sort of much more important in terms of women's rights than almost any, maybe the Secretary of HHS, but the Attorney General has a profound impact on the direction of the Justice Department, the influence on the President, and how interpretation of the law and even Federal legislation will be carried out.

Kate Michelman

I also think we do have the matter of what cases the United States will argue before the Supreme Court.

Russell Feingold

I see that. I am just trying to get at the administrative piece now.

Kate Michelman

The administrative. Well, that is an administrative piece. That is a decisionmaking --

Russell Feingold

I was trying to distinguish that from other things.

Kate Michelman

All right. Let me let others comments on that very question.

Russell Feingold

Let me try to add to that and first say that I agree with what Kate said. So I won't repeat any of that.

Russell Feingold

Ms. Feldt?

Gloria Feldt

Gloria Feldt

I was listening very carefully to Senator Kyl and the exchange with Senator Feinstein, and I know that this question of Mr. Ashcroft as a man of his word is a very important one, and this does speak, Senator Feingold, I think to how I think he might handle the administrative elements of what he has to do.

Gloria Feldt

So I looked back at his record to sort of look at how did he handle some things as Attorney General in Missouri, and I have to say that it is precisely because I think Ashcroft is a man of his word that I fear what he might do as Attorney General of the United States.

Gloria Feldt

When he was the Attorney General in Missouri, he did, as Marcia has already mentioned, take very aggressive stances. That means that he did use resources. He did prioritize the use of resources and budgets and personnel and research and all of the things that go into it. He took a very aggressive approach, even to the point of testifying in Congress in support of that human life amendment that would have banned all abortions. It is not a usual step. I mean, that is an unusual and an unusually aggressive step in an application of resources, and it speaks to an example of what he might do.

Gloria Feldt

Secondly, because of some of the other work that he had done in shaping the State laws of Missouri, he ended up with quite a full plate of litigation. For example, Planned Parenthood v. Ashcroft, that also dealt with some of the limitations that he wanted to see on the right to choose abortion.

Gloria Feldt

Kind of moving to another arena in terms of the school desegregation litigation, he was willing to apply an immense amount of resources and personnel and energy to fighting the school desegregation process, and the district court had ordered the State and the City Board of Education, as you probably know, to submit voluntary plans to desegregation, and he repeatedly delayed doing that.

Russell Feingold

But I take it, your answer is that your concern is that the reverse would sort of happen here, that he would shut off the enforcement.

Gloria Feldt

I am not talking just about the enforcement.

Russell Feingold

Or the administrative resources.

Gloria Feldt

It is the administrative resources.

Russell Feingold

He would shut off the resources that would be pursuant to protecting the right to choose.

Gloria Feldt

I think there are big questions about that, and there are even bigger questions about the use of resources to find ways that cases could be brought, that cases could be shaped, that legislation could be shaped, and when he told the Missouri Citizens for Life that he would stop at nothing until there is a constitutional amendment outlawing abortion, I take him at his word, and I do not think John Ashcroft should be Attorney General of the United States where he would have the ultimate ability to be able to shape that very Act.

Russell Feingold

Yes. Senator Feingold, I wanted to just add something that I am not sure time had allowed us to get to before on this, and it is a very important question that you asked. I know you asked it in the context of choice, but actually I know that your commitment to women's rights and to fighting discrimination is broad and I would like to try to include that if that is responsive to your questions.

Russell Feingold

Ms. Greenberger?

Marcia Greenberger

Russell Feingold

First of all, let me say with respect to administration, personnel, budget, resources, in Senator Ashcroft's record, in the choices of how he has allocated his budget priorities, we have heard comments, but I am not sure you were there when I mentioned in the context of vetoes, one of the vetoes I talked about was picking out through a line item veto funding for domestic violence that the Missouri State legislature had appropriated, and they were very small sums, actually. So it was very instructive to imagine a Governor at the time finding and striking those specific, quite small amounts out when there was really -

Marcia Greenberger

Russell Feingold

So you are suggesting he would wield his power as an administrator in the Department Justice --

Marcia Greenberger

Because the Domestic Violence Program is within his purview as an administrator and is of central importance to the safety of women, and nobody could be moved more than I sitting next to Ms. Campbell, about how much -- we've been holding each other's hand through this entire testimony -- how much we want to avoid violence and victims, men or women, let alone children. For those of us who are mothers, there is nothing more horrifying than that. And the Violence Against Women Program that Senator Ashcroft would be administrating, with so many discretionary judgments he would make about where that money would go within line items -- often it is in line item -- how much it would go for this part of the Justice Department or another part, is something that would be difficult to review. And his past actions on that administrative judgment is clear.

Russell Feingold

Marcia Greenberger

Marcia Greenberger

I want to also talk abut --

Patrick Leahy

Ms. Greenberger.

Marcia Greenberger

Yes, sorry.

Patrick Leahy

We are going to give everybody a chance to add to their testimony and submit things for the record. I will let you complete your thought, but then we are really going to have to move on now for fairness to both sides here.

Marcia Greenberger

Well, the one other thing quickly I just did want to add is there is a lot of discretion with respect to laws that prohibit discrimination in employment and education, central to women, and we saw, again, a major shift, a concrete shift in 1981, and I wanted to give some statistics if I could, that I hadn't a chance to mention, involving disability discrimination, where suits went from 29 in 1980 to zero in 1981.

Russell Feingold

Three over the next 3 years. And I could go on, but that is some of the concrete concerns as an administrator.

Patrick Leahy

Senator Hatch.

Marcia Greenberger

Patrick Leahy

Just one comment. Ms. Greenberger, you know, as the prime author, along with Senator Biden, of Biden-Hatch Violence Against Women Act, I can tell you on our side, John Ashcroft was one of the more sensitive people working on that with us, and in all honesty, a number of the provisions that are in that bill came from Senator Ashcroft. So I think it is maybe not fair to ignore the credit that he deserves in that area. I have been an active participant in that since the first passage of that bill, and a lot of people do not realize what our side does sometimes, but he played a significant role in that.

Patrick Leahy

Senator Hatch.

Orrin G. Hatch

Marcia Greenberger

Senator Hatch, I know you have, and I remember over many years how you've come to support women, lady miners I remember, in Utah, and child care, and many other important things. But I want to go back to my point. Authorizing and reauthorizing that bill is a very different matter than appropriating funding for those programs, and that's why I really wanted to focus on the funding issue.

Orrin G. Hatch

My point is that he is sensitive to these issues, and I think he will do a very good job, and I intend to see that he does. So I would not worry too much if I were you, because you have both a sincere man who has worked on it diligently, but you also have people up here in Senator Biden and Senator Hatch, who are going to make sure that that works very well.

Patrick Leahy

The very patient senior Senator from Ohio.

Michael DeWine

Mr. Chairman, you keep insisting on calling me the senior Senator here, so you make me feel old.

Patrick Leahy

You are the senior Senator. Are you not the senior Senator?

Michael DeWine

In service, that is correct.

Patrick Leahy

Well, that is what I mean. But what makes it worse, the first day or the first week after I became the senior Senator from Vermont -- I was about 10 years younger than I am now -- to get introduced at some event in Vermont, "With great pride, we introduce Vermont's senior citizen."

Michael DeWine

Senior citizen, well, at least you did not do that, Mr. Chairman. Thank you.

Patrick Leahy

Although I guess I am getting close.

Michael DeWine

Michael DeWine

Let me thank our panel for your patience and your testimony. I want to thank all of you for coming in today in this very important hearing. Mayor Campbell, thank you for coming in. As other Senators have said, we know this has not been easy, this has been difficult, but as you said, it is important, and we appreciate you being in here, and we appreciate you testifying not only for yourself, but for different victims' groups and for victims of crime.

Michael DeWine

I must tell you that John Ashcroft, in my experience, has been someone who brings a real passion to the issue of victims' rights. Politicians always talk about victims. That is very easy to do. It has not always been really, though, fashionable to back up your words with actions. And it has been my experience that John has done that, and it has been my experience that John truly brings, when you talk the him as I have about this, and I know as you have as well, that you just see the passion that he brings to this. And I think it goes to his empathy and his understanding, and the fact that he has dealt with many victims, as many of us have. And when you talk with victims and understand, as the chairman has, if you are a prosecutor, or if you are Attorney General, I think you see that up close and personal, and you really understand it.

Michael DeWine

So, I just want to give my own comment about that, and I appreciate it, and I think that John just brings an unbelievable passion to this cause, and I think that he will be the advocate as Attorney General for the victims of crime in this country. He has done that in the U.S. Senate. He did it as Attorney General. He did it as Governor. And I expect that he will do that as Attorney General of our country.

Michael DeWine

John -- and I do not know if this, Mr. Chairman, has been mentioned before, but one of the areas that John worked on and brings a passion to is in the area of missing children. A quote that I would like to put in the record from Steve McBride, executive director of the National Center for Missing and Exploited Children branch in Kansas City, a brief quote. "John Ashcroft's ground-breaking initiative as Governor and his efforts in the Senate to provide the necessary resources to find missing children, have had a wonderful effect. Since he formed the first regional agreement with five Governors, recovery rate in missing children cases has increased from 60 percent to 94 percent." End of quote.

Michael DeWine

And as has already been mentioned, John was presented with the Congressional Leadership Award by the National Center for Victims of Crime, quote, "For leadership that expands national discussion about crime and victimization issues, to include nonviolent crime and its victims."

Michael DeWine

He secured funding for $800,000 for the National Victim Rights Hotline in 1999. Helped secure $100 million in increased funding to combat violence against women. Helped to enact legislation, increasing penalties for those who purposely defraud seniors with tele-marketing scams.

Michael DeWine

And we could go on and on, but I think, Mr. Chairman, it is a record that John can be very proud of, but more important than that, I think it is a very good indication of what type priority John will have as Attorney General of the United States.

Michael DeWine

We have seen a tremendous change in the way we deal with victims in this country. I started as a county prosecuting attorney, 1976, in my home county in southwestern Ohio, Greene County, and quite candidly, the crime victim agenda just was not there. We tried to help the victims. We did it on an informal basis. We worked with them as prosecutors and police, and tried to make everyone sensitive, but there were people who frankly fell through the cracks, literally, and we just did not get to because we did not have any formalized programs. Today what we see in this country, as you know -- and although that still happens, and sometimes victims are not treated correctly, and we have to work on that and fight about that and fight for that, but we are doing as a country, I think, better. And we are getting some systems in place, and we are doing it at the local prosecutors' offices. We are doing it in state attorneys general offices. We are doing it with not only crime victim compensation in some states, many states, but with very, very formalized programs.

Michael DeWine

And the Federal Government plays, and must continue to play, a major role in this and a major role with funding. And this is an area where I just have every, every confidence that this is going to be a man who will make us very, very proud as Attorney General.

Michael DeWine

And so, Ms. Campbell, thank you for coming in.

Michael DeWine

Mr. Chairman, I will not take any more time. I appreciate the Chair's courtesy, and I again thank all the members of the panel.

Patrick Leahy

And you are submitting something for the record there too? You submitted something for the record too, or you just read it for the record?

Michael DeWine

No, I just read it right in.

Patrick Leahy

OK. The senior Senator from New York.

Chuck Schumer

Thank you, Mr. Chairman. And I want to thank all of the panel. I know it has been a long day.

Chuck Schumer

I guess my first question that I would like to ask of both Ms. Feldt and Ms. Michelman, is about a law that is important to me, the FACE law, which I authored when I was in the House. And first I wanted to clarify the record, because it has not been. On that FACE law we did have an amendment in the bankruptcy bill which would prevent those who did violence or threats of violence against clinics, not to hide behind the false shield of bankruptcy to avoid the consequences of their actions.

Chuck Schumer

What we found was the FACE law was remarkably successful. Before the law, a large percentage of the clinics in America had been closed down, the family planning clinics, by blockades, by threats. And the FACE law gave the clinics the right to sue, and it was remarkably successful. Unfortunately, some of those sued then decided to use bankruptcy. The most notorious case was that of the Nuremberg files, where the people who put these together, had the names and addresses of doctors who performed abortions on the screen. When one died -- when one was killed, they were taken off. When one was injured, they were grayed over. And a clinic in Oregon, in Portland, Oregon, that had been targeted, one of the clinics, by this group, sued. I think there were 12 defendants. They won. They won a large judgment. And then each defendant went back to their home state and declared bankruptcy, making it extremely difficult for a poor little clinic to go around the country and follow them down.

Chuck Schumer

So this law, the idea was you should not -- it was modeled on a law we used against drunk drivers, same thing for someone who had hurt somebody in terms of drunk driving would be sued and declare bankruptcy, and we said you could not use bankruptcy then, and so we did the same thing here.

Chuck Schumer

Senator Ashcroft, it is true, as many of my colleagues have noted, voted on the floor to support that amendment. However, what they have neglected, and he neglected to mention, is that he had voted against it in Committee. And actually, on the floor it looked like it was going to be a tough fight to win it. Al Gore, who was then both Vice President and candidate for President, came back from wherever he was because it looked like it might be a tie vote. And at that point, at least the newspapers reported, maybe some will dispute it, that Senator Lott urged his colleagues to vote the other way so that Gore would not have the drama of breaking the tie, and urged a lot of his colleagues to vote the other way. It passed 80 to 20. We have never had such a pro-choice victory on the floor of the Senate, at least in the 2 years I have been here. And Senator Ashcroft did vote the other way. But he had voted previously, maybe a couple of weeks or a month or two before, against the bill in Committee.

Chuck Schumer

But my question is: since one of the most important functions of an Attorney General, at least in the area of women's reproductive rights, is to implement the FACE law and support the clinics, or prevent the clinics from being shut down by violence or threat of violence, what do you think will happen if the FACE law is not aggressively pursued, if the task forces that are in place -- I was glad to hear Senator Ashcroft, in response to a question from my colleague from California, say that he would keep these task forces in place, that he would fund them -- I think his word was "adequately." But what would happen if they were not, if the Justice Department played a less forward role in protecting those clinics? And maybe I will call on Ms. Feldt and Ms. Michelman to answer that one.

Gloria Feldt

Sure. Thank you, Senator Schumer. I guess to put that in perspective, the first thing I should do is simply review what happened before FACE, because that might be the best way for us to think about what might happen if it were not appropriately enforced.

Gloria Feldt

The very good news is that since the passage of FACE in 1994, there has been really a precipitous fall in really all of the major categories of violence and criminal acts perpetrated against health centers, compared to the 5 years before that. The number of murders of medical staff dropped 40 percent. Attempted murders fell by 36 percent. Arson dropped by 58 percent. Attempted arson and bombing fell by 50 percent. And incidents of harassment, disruption and blockades also showed a decline.

Gloria Feldt

In my oral testimony earlier today, I talked about what it felt like as a provider to be personally harassed, vilified, death threats, bomb threats. You name it, I have probably dealt with it.

Gloria Feldt

As I began to think about the answer to the question though -- and I think all we have to do is look at how it was before and get a picture of what it might be like after if in fact it is not properly funded and not properly supported, and most importantly, not properly given the bully pulpit and the leadership and the -- in addition to the resources, because it really does require that.

Gloria Feldt

As I thought about my answer, I began to have this feeling of outrage, that we should even have to talk about the need for such a law. It is truly outrageous to think that health care providers, that women seeking health care, that those of us who believe with all our hearts and souls, that women must be able to control their own fertility if they are going to be able to enjoy any kind of equality in this world, have to even think about the necessity for such a law.

Gloria Feldt

I apologize for getting on that little soapbox, but I must say that I see the enforcement of FACE as being an immensely important issue, but the much larger issue even than that, is the whole question of the legality and the social support for a woman's ability to determine the course of her own life. Thank you.

Chuck Schumer

Do you want to add something? See, my time is up.

Kate Michelman

Yes, just a quick addition to Gloria's, I think, very fine response.

Kate Michelman

Since FACE was enacted in 1994 the Department of Justice has obtained convictions of 56 individuals in 37 criminal prosecutions for violation of the law. Now, as of this January, the Department of Justice has 53 remaining open investigations under FACE and related statutes. So the question is: what do we fear? Not only, you know, the reality of threats to women and health care professionals and to their lives if it's not enforced, but will the Attorney General continue with these investigations with great vigor and commitment. Again, this goes to establishing priorities and goals, and we respectfully suggest that it's hard to believe that there will be great weight brought to this, given Senator Ashcroft's long record of opposition to a woman's right to choose.

Patrick Leahy

The Senator from Alabama, Senator Sessions.

Chuck Schumer

Thank you, Ms. Michelman

Patrick Leahy

Jeff Sessions

Senator Schumer, I guess -- is still there -- but as I recall the facts on the FACE legislation, Senator Grassley, who was a prime sponsor, and I in Committee, opposed this amendment, this bankruptcy amendment on bankrupting any judgments, because we believed it was inconsistent and unprincipled, targeting one simple group, and we discussed options and that kind of thing. And we saw it as a poison pill, and I think most people who supported the bankruptcy bill, voted with us in the Committee, but on the floor, Senator Ashcroft did choose to support it, much to my surprise, because I felt like it was in fact a targeting of one kind of protest, but there was a refusal on the part of the sponsors of that to be willing to cover people who blockaded work sites or things of that nature. That is kind of the inside ball-game story of that. I don't think it reflected a lack of integrity on his part. Certainly he enforced a similar FACE law in Missouri, and as I understand, lectured some abortion protesters about the need to follow the law. And that's certainly been his career and commitment, I believe.

Jeff Sessions

Jeff Sessions

On the abortion question, it has been suggested that he had, sometime ago, did not believe Roe was wrongfully decided. Attorney General Dick Thornburgh, when he was confirmed, testified he would not hesitate to ask the court to overrule it; Attorney General Barr, both whom I served under, said that he thought Roe was wrongfully decided. He has made some commitments on Roe v. Wade I think are quite significant, and I think should be comforting to those -- to you.

Jeff Sessions

Mr. Susman, you used the phrase, I believe, "He fought against court-ordered desegregation plans" in your phrase. I think that is an accurate description of what went on in St. Louis. I do not believe he should be characterized as having fought desegregation. That has upset me, and Senator Kyl has raised that point. I think that was an inaccurate legal description of what went on.

Jeff Sessions

Mr. Robertson, you, in at least some of this period, I believe were in the Attorney General's office. This St. Louis plan involved a settlement of one school system's problems; is that right; or two; was it one?

Edward Robertson, Jr.

Well, the settlement that the Attorney General's Office ultimately challenged and continue to challenge, was a voluntary settlement between school district in the suburban part that had not been actually found guilty, and they invited the state to pay for it so that they would be absolved of that responsibility.

Jeff Sessions

Well, Senator Smith and I have been working on a charity that we would like to see funded, and we have agreed it ought to be funded, and we are going to ask Senator Kennedy to pay for it, I guess, or Senator Leahy. Basically the people of Missouri were being asked to pay for a school system in the St. Louis area, all the people of Missouri; is that correct?

Edward Robertson, Jr.

And the Attorney General is a lawyer for all the people; is that correct?

Jeff Sessions

Edward Robertson, Jr.

That's correct. And the state was a defendant in the lawsuit, and the law requires the Attorney General to defend the state.

Edward Robertson, Jr.

And I think it's important to make another point, and that is that we, every year, were involved in budget negotiations to fund this plan, and that every year we only challenged those things about which we could not agree. To characterize this as being standing in the steps or the doorway of a schoolhouse by then Attorney General Ashcroft I think is to mischaracterize what happened. Further, his concern was the concern expressed by Representative Gephardt at the time, that we're not helping children here. We're just moving them around. And as Representative Gephardt went on at that point to sponsor an amendment to ban busing in the United States Constitution.

Jeff Sessions

This is the Minority Leader in the House of Representatives.

Edward Robertson, Jr.

And reported in the St. Louis Post Dispatch.

Jeff Sessions

He agreed with Senator Ashcroft on this desegregation court plan basically, or opposed it also?

Edward Robertson, Jr.

Well, he then. I'm not sure he would now.

Jeff Sessions

Well, I think that is significant. I think we ought to know that. I am glad to hear that.

Edward Robertson, Jr.

Well, and we did what we thought was appropriate under the law, to attempt not only to help the children, but to protect the taxpayers. There was never a conversation -- and I was involved in many of them -- in which there was any statement by John Ashcroft that could be interpreted as "We're going to stop integrating schools." It was the plan that was being imposed that was the problem, not the end that was being sought.

Jeff Sessions

Would you offer for the record the article that shows the Minority Leader of the House, Mr. Gephardt, agreed with Senator Ashcroft, that this was not a good plan for children in the St. Louis area?

Edward Robertson, Jr.

I would be pleased to do that if the Senator would like for me too.

Jeff Sessions

And I would like to talk about this other one, this Kansas City desegregation case. Is it not in fact, perhaps the most notorious court order in the history of the United States? Is that not the one in which the Federal court in Kansas City, Missouri ordered a duly elected commission to raise taxes?

Edward Robertson, Jr.

I might want to fight with you over the word "notorious", but it was in fact a very --

Jeff Sessions

The Taxation without representation phrase was heard a lot in America by people concerned about it.

Edward Robertson, Jr.

Federal judges are unelected, have lifetime appointments, and are unaccountable to the people. I do not believe they should be in the business of raising taxes.

Jeff Sessions

Edward Robertson, Jr.

Well, ultimately, I think the Supreme Court of the United States agreed with you on that question.

Jeff Sessions

Well, in this Kansas City case -- correct me if I am wrong -- the Federal judge ordered, among other expenditures, an eight-lane, 50-meter swimming pool, better than any swimming pool in any college in the State of Missouri, a 300-seat Greek amphitheater, a stage framed by white columns, a planetarium, greenhouses, dust-free diesel mechanic shop, broadcast cable, radio, TV studios, school animal room -- I am not sure what that is -- private nature trails, overseas trips for students, model United Nations with foreign language translation. The price tag for these being, eventually reached, I understand, $1.7 billion. Is that consistent with your recollection of the case that Attorney General Ashcroft resisted?

Edward Robertson, Jr.

Well, that is an accurate rendition, as I understand it. But I want to make the further point that never a single time did Attorney General Ashcroft direct the State not to pay money that had been ordered by the court, even when that order was being appealed.

Jeff Sessions

Did you personally have to approach him --

Patrick Leahy

I know some of the witnesses have to leave, and I just want people to know, after Senator Durbin and Senator Smith ask questions, we will dismiss this panel.

Frank Susman

Forgive me for interrupting. Let me offer my apologies, but I was supposed to be in California today and the last stage out of Dodge is 5:30, and if don't leave, I won't make it.

Patrick Leahy

As my mother's family would say, Andiamo.

Jeff Sessions

Just one yes or no question for Mr. Robertson.

Patrick Leahy

In fact, if anybody else is in that same situation, feel free.

Jeff Sessions

Even after all these expenditures, is it accurate that Missouri stripped the school district of its accreditation in 1999 even after all this?

Edward Robertson, Jr.

The tragedy, Senator, is all this money results in lower test scores and greater minority concentration in the school district.

Jeff Sessions

We can do better. There are better ways to do business than the way it was done in Missouri.

Patrick Leahy

Senator Sessions, certainly -- I mean, I am here for the Committee. We can have further rounds on this, but we want to finish these hearings before the inaugural at noon on Sunday.

Jeff Sessions

Well, I have gone over a lot less than the last three on this side of the aisle.

Patrick Leahy

I understand. No, I am not cutting off the Senator. If the Senator wants to have another round, we will have another round.

Orrin G. Hatch

I suggest that we enforce the 5-minute rule, and let's --

Patrick Leahy

I see Senator Brownback is back. The Senator has not had questions. So it will be Senator Durbin, Senator Brownback, Senator Smith. We will then break, and Senator Hatch and I will invite -- we will break for 5 minutes. Senator Hatch and I will invite all Senators on both sides out back to talk about seeing which ones we can finish tonight and what time we will start in the morning.

Patrick Leahy

Senator Durbin?

Dick Durbin

Thank you, Mr. Chairman. I am always heartened that there is a reminder to enforce the 5-minute rule by the time it gets down to this end of the table.

Patrick Leahy

What is it, 10 minutes here, 5 minutes there?

Dick Durbin

I am also reminded of Muriel Humphrey's admonition to Hubert Humphrey that a speech does not have to be eternal to be immortal. So I will try to be brief.

Dick Durbin

First, let me thank Ms. Campbell. All of the witnesses made a sacrifice to be here. You made a special sacrifice, and thank you for being here. It makes a big difference. We really appreciate that.

Dick Durbin

I would like to ask some of the panelists here, Ms. Greenberger, Ms. Feldt, Ms. Michelman, and Ms. Woods as well, most of you heard the testimony of Senator Ashcroft relative to what is settled law. I think that is going to become a very important phrase should John Ashcroft become Attorney General. And I found it interesting in his opening statement that he said he believed Roe v. Wade and Casey were settled law in the land. And yet when Senator Schumer and I tried to follow up on the whole question of the partial-birth abortion ban to ask him what that meant, I am not certain we received a direct answer.

Dick Durbin

I think we understand that most Americans believe that third-term late abortions should be rare and confined strictly to those cases where a woman's life or health are in jeopardy. We have debated this over and over in the Senate, and Senator Santorum of Pennsylvania, who offers this regularly, has said he will not include the protection of a woman's health when it comes to these late abortions. And many of us have said that is an important element to include.

Dick Durbin

We have been criticized by some who say that we were insensitive, but that has been the case, that has been the vote, and that has been, I guess, the outcome, until this case comes along under the Nebraska statute. The Nebraska statute did not include an exception for the health of the mother in late abortions and was sent to the Supreme Court for a decision. And the Supreme Court I thought gave a very clear answer to the Nebraska statute. It threw it out and said that under the Casey decision, you have to protect not only the life of the mother but the health of the mother. Unequivocal. And they said the Nebraska statute didn't do that.

Dick Durbin

The point we tried to make yesterday and asked of Senator Ashcroft on this whole settled law concept is: What would you do with the Santorum bill if it came to you again and didn't have the health protection provided by Casey, reiterated by the Supreme Court in Stenberg v. Carhart? And, unfortunately, what seemed like an unequivocal answer in the beginning about what he would do as Attorney General fell apart. When he was asked by Senator Schumer if he would advise the President to veto such a bill, I am not sure we got a straight answer.

Dick Durbin

When I asked him whether or not a Santorum bill without the health protection came up before the Supreme Court, what he would do as Attorney General, again, he equivocated.

Dick Durbin

That leaves me uncertain as to how this Senator, who has been resolute in his opposition to a woman's right to choose throughout his public career and has told us in the last 48 hours he is a different person in a different job with a different attitude, could fail to answer that basic question.

Dick Durbin

Ms. Michelman, could you respond your view of his response yesterday?

Kate Michelman

Well, I would offer that you raised a very critical challenge to Roe v. Wade, which are these bans on abortion procedures that you have dealt with as a Senate and this Congress indeed has over the last 5 years. And that challenge that these procedure bans raises go to the very heart of Roe v. Wade. Not only did they not protect women's health by ensuring that exception, but they also were written so vaguely and, you know, in such a way that they would, in fact, criminalize many commonly used forms, many commonly used procedures from the earliest moments of pregnancy.

Kate Michelman

Also, the ban did not follow and was not constitutional under Roe because, again, it would cross trimester lines. I mean, the thing about Roe v. Wade was it was a carefully balanced decision, recognizing and guaranteeing women a right to choose in the first two trimesters of pregnancy, without any government interference.

Kate Michelman

In the last trimester, Roe said indeed States may prohibit abortion except there have to be exceptions for when a woman's life is at risk and her health is at risk.

Kate Michelman

These procedure bans that you are talking about have not included those exceptions and have not made sure that these laws are constitutional under Roe. So it seems to me that what Senator Ashcroft found himself doing was having difficulty when it comes right down to establishing that he will enforce the law in the question of these cases. He wasn't able to guarantee, or even talk about the fact that these cases are a violation of what he considers established law. They were violations. They were attempts to overrule Roe. They were clearly unconstitutional. The Supreme Court has already said this. And he wasn't able with the same force that he has been saying for 2 days that he will uphold Roe, he wasn't able to see that case.

Kate Michelman

So I think it again just raises the question as to whether 2 days of testimony can offset and overturn 25 years.

Dick Durbin

Dick Durbin

Patrick Leahy

Thank you, Mr. Chairman. Is it 5 minutes now, Mr. Chairman?

Patrick Leahy

Senator Smith?

Gordon Smith

Patrick Leahy

We are trying. We are trying. Hope springs eternal at this end of the table.

Orrin G. Hatch

It is 5 minutes, though.

Patrick Leahy

For your side, I am going to let Senator Hatch run the clock.

Orrin G. Hatch

I refuse to handle the gavel. I know my place.

Gordon Smith

Don't start the clock until you guys --

Patrick Leahy

You are all right. Go ahead.

Gordon Smith

Ms. Campbell, let me say what others have said to express my sympathies to you for what happened, and for you to be here and sit through a debate on other matters, too, is very difficult, and my heart goes out to you. It is a terrible, terrible thing to have to experience.

Gordon Smith

Ms. Michelman, as you might expect, we have differences over this issue, and I am not going to debate it here, obviously. But I guess the only thing I would say is: Aren't we really, in essence, conducting an extension of the campaign here? I am assuming that your organization, the National Abortion Rights League, didn't support Governor Bush. That is obvious. He won. Doesn't he have a right to pick his Attorney General?

Kate Michelman

Senator, I --

Gordon Smith

And please be brief, not out of disrespect, but I do have a couple of other --

Kate Michelman

OK. Let me just say I think this threat to the constitutional right of women to freedom of choice is much too serious to relegate it to political -- dismissing it by referencing the election. Of course, we endorsed a pro-choice candidate, but we fully respect the President-elect's right to choose his Cabinet, and we fully expected him to choose a conservative nominee for Attorney General and, in fact, one who would oppose Roe v. Wade.

Kate Michelman

This is different. This candidate is way outside the mainstream of any kind of thinking on -- you know, in opposition to contraception. So there is much too much at stake. This is not about the past. This is about the future of a woman's right to choose, and that is why we so strongly oppose this nomination.

Gordon Smith

And I understand and I respect you for your views. There are those, though, that would say that in 1857 when Dred Scott was not allowed to sue in Federal court because he was a slave and, therefore, property, they thought that was wrong. I am not saying it is the same issue, obviously, but -- or Plessy v. Ferguson, that was the law of the land at one time, and that had to be changed. There are those who respectfully would disagree.

Gordon Smith

But let me just see if I could focus on it this way. So if that is the -- if that is the disqualifier, again, I just would remind you, when Senator Hatch had the gavel when Janet Reno was confirmed -- I could be wrong. Correct me, Senator Hatch, if I am. I don't recall whether it -- maybe there were requests made, but Senator Hatch did not have pro-life advocates here at the table and criticizing Janet Reno. I voted for Janet Reno, as did all of my colleagues, and I disagreed with her vehemently on this issue because Bill Clinton won the election and respectfully I thought that he had the right to pick his Attorney General, and I really believed that she would enforce the law of the land, no matter what it is. I think Senator Ashcroft -- I know Senator Ashcroft will do likewise.

Gordon Smith

But with respect, let me just see -- I am trying to figure out who is acceptable. William Rehnquist is the Chief Justice of the United States. If he had been asked to serve as the Attorney General -- he is pro-life; he has voted that way. If he were asked by President Bush to be Chief Justice -- to be Attorney General, would it be acceptable to you?

Kate Michelman

Well, I --

Gordon Smith

Just yes or no because I am trying --

Kate Michelman

I think we are talking about Senator Ashcroft.

Gordon Smith

I know we are, but I am trying to understand the criteria -- I am trying to understand the criteria for choosing.

Kate Michelman

The criteria, Senator, is about an Attorney General who will -- whom Americans can count on to respect and defend and protect their established constitutional rights --

Gordon Smith

And in every --

Kate Michelman

-- and Senator Ashcroft is not that Attorney General.

Gordon Smith

Well, Senator Ashcroft has had experience that many in this job have not had as Attorney General, and with one or two notable exceptions, I think was absolutely strictly adhering to the law. You can be an advocate -- you are always an advocate in your heart, but there is a difference between advocating as a legislator and as -- Senator Ashcroft would legislate aggressively on what he believes, as you would, but as the enforcer of the law, he has an obligation to do it. He took an oath to do just that. So I am just assuming that, whether it is Senator Hatch -- is Senator Hatch qualified? He is a supporter of the human life amendment. Would he be acceptable to you as the Attorney General of the United States? I know I am not, but I was just curious about Senator Hatch.

Gordon Smith

Let me just point out with respect to all my colleagues, some of whom I am going to quote here, I am trying to make a point. I think you have to be fair and not extend -- this is a pretty important nominee. I respect, I understand that is a lifetime appointment. But, you know, we saw apologies down the table on the other side for Ronnie White. I didn't realize that one Senator could apologize for another Senator, but apparently that did. So in that spirit, I will apologize to Clarence Thomas and I will apologize to Robert Bork for what the Senate did to them.

Gordon Smith

But let me just say why I think you get in trouble. Let me read a quote. Wanted or unwanted, I believe that human life, even in its earliest stages, has certain rights which must be recognized, including the right to be born. Once life has begun, no matter at what stage of growth, it is my belief that termination should not be decided merely by desire. When history looks back to this era, it should recognize this generation as one which cared about human beings enough to fulfill its responsibility to its children from the very moment of conception. That wasn't John Ashcroft who said that. That was Ted Kennedy who said that 2 years before Roe v. Wade in 1971. Very interesting.

Gordon Smith

So I guess what I am saying to you is -- and we could go on and on. Byron White, who worked under Robert Kennedy at the Attorney General's office, appointed to the Supreme Court by John F. Kennedy, "I cannot accept the Court's exercise" -- this is Roe -- "by proposing a constitutional barrier to make State efforts to protect human life and by investing mothers and doctors with the unconstitutionally protected right to exterminate it."

Gordon Smith

The point is people change, people enforce the law regardless of their views, and John Ashcroft is going to be confirmed. And when he is and you look back on this period of time 8 years ago -- I know him well -- you will find that he will enforce it. There are going to be times he is going to enforce it that he wished he didn't have to. But he will. And that is the issue here, and I wish that we were not extending -- and I say this respectfully. I think we are extending the campaign. None of us on this side that I know of many any effort to derail the Reno nomination or embarrass her in any way because of her views. And I think that is, frankly, the difference in this bipartisan -- so-called go-along, get-along bipartisan Senate. That is really the difference as to the two sides in this issue.

Patrick Leahy

Senator Brownback?

Sam Brownback

Thank you, Mr. Chairman, and I thank the panel for being here through a long day for everybody. I just want to make a couple brief points and recognize my limit of 5 minutes, and everybody starts getting antsy when I get up because I am the only thing that stands between them and the door. So it shortens things up.

Sam Brownback

One of the things that has been troubling to me is that it seems like that you are going at the nominee here and trying to paint him in an extreme light when the issue is not the point of view that he has taken, which I think can be fairly categorized in many cases as quite mainstream, but really that what it is about here is whether he will enforce the law. And then you try by extension saying, OK, he has taken this political position; therefore, that is how he will enforce the law. And I don't think that that is really a fair characterization.

Sam Brownback

I realize you have differences of opinion with the nominee on the issues. Partial-birth abortion, you have differences of opinion with him on that. But I don't think you could put the nominee's position as extreme on partial-birth abortion. He voted for the Santorum bill. That is where -- I have got a poll here -- shows 73 percent of the American public is. Your organization opposed this bill on the partial-birth abortion, and I think your group would be deemed more outside of the mainstream on that particular issue.

Sam Brownback

On parental notification, a number of people, over 80 percent of the American population believes that parents should be notified if their under-age daughter is having an abortion. Your organization has opposed that. The nominee says that parents should be notified. And then you use these sorts of other positions to say he is outside of the mainstream, you are in the mainstream; therefore, he can't be trusted to enforce the law -- not the position that he has taken.

Sam Brownback

The only overall point that I am trying to make here is that you can take a lot of different positions from people, and we can look at the issue of partial-birth abortion or if you want to look at parental notification of this where the public is generally saying we don't like partial-birth abortion and we think parents should be notified, and you are outside of the mainstream on that, the nominee is within it. But that is irrelevant on both sides.

Sam Brownback

The issue is: He has stated that he will enforce the laws, that he will uphold the laws of this land, that he has done that in the past and that he will do that in the future. And so I don't think it is a fair characterization to try to paint one way off of a position and, therefore, then pull it all the way around to say this is going to be how he will be as Attorney General.

Sam Brownback

I have noted that NARAL has opposed a number of nominees in the past: Justice Souter, Justice Rehnquist as Chief Justice, Justice Scalia, Justice Thomas, William Barr as Attorney General. So I know that this is a consistent position that you have taken in the past, and I respect that consistency that you have been there. But I don't think that this is a fair way to say that your Attorney General will act extrapolating off of policy positions. So I respect your willingness to do it, your desire to stand up and to say so. I would just hope that we would look at what we are about here today, and that is not debating partial-birth abortion, not debating parental notification, but whether or not this nominee will enforce the law. And I don't think you can extract from a policy position that note.

Sam Brownback

So, Mr. Chairman, I realize it is late in the day for this, but I appreciate the opportunity to be able to speak and thank all the panelists for being here and being willing to testify.

Patrick Leahy

Every Senator has the right to be heard on this, no matter which side they are on, and I think Senators realize the Chair is trying to protect the right of each Senator on each side, on both sides of the aisle, to have their time. And that is why I have allowed extra time several times on both sides of the aisle.

Patrick Leahy

If there are no further questions --

Gordon Smith

Mr. Chairman, may I make a 10-second comment?

Patrick Leahy

Of course. Take 12.

Gordon Smith

One other item I neglected to mention was that on your scorecard in 1999, you gave a 0 to Senator Ashcroft. You also gave a 0 to Senator Breaux and a 5 percent to Senator Reid, which means under that criteria, neither one of them would be qualified to be Attorney General either.

Patrick Leahy

Well, as soon as Governor and now President-elect, soon-to-be President Bush nominates either Senator Breaux or Senator Reid to be Attorney General, we will get right to that issue immediately.

Gordon Smith

It will be very interesting to see where the opposition came from.

Orrin G. Hatch

If I could add something, we are glad to see you back. It has been 8 long years without you.

Patrick Leahy

That is very good.

Orrin G. Hatch

I have missed you.

Patrick Leahy

You are not as serious as you try to let on.

Patrick Leahy

OK. If nobody else has got a question -- anybody else?

Orrin G. Hatch

No more questions.

Patrick Leahy

We will recess for 5 minutes. Both parties will meet out back to see where we go, how far we go.

Patrick Leahy

We will start with this panel and this is almost like the Durbin lament. When we get down toward the end, we start saying, by golly, we are going to keep time. As Senator Durbin has pointed out to us, why didn't somebody think of that earlier before it got to him? We are going to try to do that. We will go through this panel. We are going to go until about 6. I say "about" because I am obviously not going to cut somebody off in the middle of a question or testimony, and then come back tomorrow. We have to give up this room by around noon tomorrow because of various inaugural events, and Senator Hatch and I have determined to wrap this up, because there are still questions that are being submitted in writing to Senator Ashcroft and to others. We have got to give, in fairness to them -- in fairness to Senator Ashcroft -- time to complete the paperwork for the Senate that is required and also give him time to respond to the questions that will be asked.

Patrick Leahy

Do you want to add anything to that, Orrin?

Orrin G. Hatch

No. I think we should try to finish. If we can move fast, we might be able to get this panel over by 6. Let's try.

Patrick Leahy

On the other hand, I would also note for the record, everybody here on this panel has been waiting very patiently for a considerable period of time, and I am not going to have anybody leave here feeling they did not have a chance to make their statement because of a clock. They all have serious things to say. You all have a strong reason for being here.

Patrick Leahy

Mr. Mason, we will begin with you, sir.

David Mason

Thank you very much, Senator. A little brief commentary about my background, if you will. I grew up in Nashville, Tennessee, in very difficult financial circumstances.

Joe Kennedy III

Can we have order, Mr. Chairman? It is difficult --

Patrick Leahy

We have people going in and out. We are going to have to ask those at the door -- there is a lot of noise in the hall that filters in. Mr. Mason, bring the microphone close to you. I will start the clock back up. Go ahead.

David Mason

As I said, I wanted to give you a little bit about my background because I want you to understand where I am coming from, Senator, with respect to my comments.

David Mason

I grew up in Nashville, Tennessee, in North Nashville, under very difficult circumstances. I lived in New York City ages 10 to 15, the last 2 years in South Ozone Park, New York, in Queens. And it was while I was living there I attended John Adams High School Annex. That area, South Ozone Park, and Ozone Park, Queens, was experiencing a great deal of racial conflict at the time.

David Mason

I and a friend of mine named Ricardo, walking home after school 1 day in 1971, were jumped on, quite frankly, by a white gang from Ozone Park. We were beat very severely. There was an argument between the gang leader and some other member of the gang about whether I should be stabbed or just have my blank- blank-blank butt sent home. And while their argument was going on, a police car came up and they ran away, and I survived it.

David Mason

I have seen racism in every respect that one can see it. I have been the victim of it professionally, academically. I have been the victim of it physically in terms of being beat. I have been the victim of it verbally. I know it when I see it. I can smell it walking down the street.

David Mason

I am here for one reason and one reason alone: that I strongly disagree with the implications that John D. Ashcroft is a racist. I have spent a great deal of time with that man, and I will elaborate.

David Mason

I graduated from the Washington University School of Law in 1983, and after that I went to work for the Missouri Attorney General's office. At that time John Ashcroft was the Attorney General.

David Mason

In my interview with him, we discussed various backgrounds as young people, and I talked about my work in the political party, the Democratic political party. In fact, Senator Kennedy, I mentioned to him an experience when you came to Vanderbilt in 1976 and you spoke, and I was only about 100 feet away, and the cheering and screaming crowd, and it was quite an exceptional speech that you gave. And he talked about his background working as a Republican in the Republican Party as a young person. And, frankly, I thought I wasn't going to be hired after that. But I was hired, and I began employment in that ocean of whiteness that was described as the Jefferson city office of the Missouri Attorney General.

David Mason

I found in that office nothing but support, warmth, commitment. I got good cases at all times. At no time was there ever any suggestion that I was anything less than an appropriate person to represent the interests of the State of Missouri in all Federal courts, all jurisdictions we went to, up to and including a case that I was able to work on for the U.S. Supreme Court that I had to give up the oral argument on, but I drafted the brief on the merits.

David Mason

The Senator and I formed a friendship based upon our mutual commitment to our Lord and Savior. We had lots of discussions about how I grew up, about how my grandmother raised me, and he developed an affinity for her, would often write her letters and send her copies of his albums, his gospel albums, where he would sign things to her. And as time went on, I began to get a real feel for this man and where his heart is.

David Mason

When the subject of Martin Luther King Day came up, I was there and I recall that he issued the executive order to establish the first King Day rather than wait for the legislature to do it, because as you may recall, some of you, when the Congress passed the holiday, they passed it at a time when the Missouri Legislature may not have been able to have the first holiday contemporaneous with it. So he passed the King holiday by executive order. He said in doing so that he wanted his children to grow up in a State that observed someone like Martin Luther King.

David Mason

I saw this commitment carried through when I began to work in the Republican Party. I worked heavily in both parties. I was a Jimmy Carter person, worked for Bob Clement, and I went and did some work in the Republican Party because of the friendship I developed with John Ashcroft. And what that work was, I wrote a diversity platform policy for the Missouri Republican Party. I took it to Sedalia and all the small towns of Missouri. I took it to the Missouri Republican Party convention in 1988. It passed unanimously, and it passed under Ashcroft's watch. I noticed that it survived after I became a judge in both 1992 and 1996.

David Mason

There was some discussion about black participation under the years when John Ashcroft was Governor. While I was an attorney, after I left the Department of Corrections -- I was their general counsel for a while -- he appointed me to the stadium authority. It was the St. Louis Regional Athletic and Sports Complex Authority, and it was our job to build a new stadium for our football team, a $270 million project. Most of the votes on that commission were controlled by John Ashcroft.

David Mason

We made a commitment very early on that that program was going to have substantial black participation at all levels. I chaired the Committee that hired the large number of black lawyers that worked on that project, members of the Mound City Bar. I watched as accountants and people who sold stocks and securities and carpenters and the people engaged in construction management who were of color, who were black, came into that project and that project came in on time, under budget, with the highest level of minority participation of any project of its size in Missouri's history. That was under John Ashcroft's watch. It is a monument of steel and stone to his commitment to participation, and no amount of rhetoric can dance around it. It was there, and I watched it happen. No one had to come to St. Louis and protest and stop the work in order for that to happen.

David Mason

So I say all that to simply say this to you, Senator, and I will sum up because I see that red light. I will ask that this Senate avoid the politics of vengeance in making this decision, to forget how angry any of you may be about things that Senator Ashcroft may have done or said to people that you wanted to see appointed, and show America that you are prepared to engage in the politics of principle, that you will advise the President of the United States how the Justice Department should be run, what the priorities should be, how the law should be enforced, and upon giving that advice, give your consent when you know that his nominee has committed to you that he will enforce all the laws of this country in equal measure, both spirit and letter. Give the President your consent, and that is what I am here to say today.

David Mason

Thank you, Judge. I appreciate your testimony.

Patrick Leahy

Patrick Leahy

Mr. Henderson, you are not stranger to this Committee. You have appeared before us on many different issues, and we are always pleased to have you here. Go ahead, sir.

Wade Henderson

Chairman Leahy, Senator Hatch, and members of the Committee, I am Wade Henderson, executive director of the Leadership Conference on Civil Rights. The Leadership Conference is the Nation's oldest and most diverse coalition of civil and human rights organizations. I appreciate the opportunity to present to you the views of the Leadership Conference regarding the nomination of former Senator John Ashcroft to be Attorney General of the United States.

Wade Henderson

Wade Henderson

The Leadership Conference on Civil Rights strenuously opposes the nomination of Senator Ashcroft to be Attorney General. I report this judgment to you with great sadness. We did not seek this conflict, and we do not relish it. We are mindful of the calls for bipartisan cooperation that accompany the upcoming inauguration of President-elect Bush, and we had looked forward to working with the new President and his Attorney General on a wide array of civil rights challenges facing the Nation. We still do.

Wade Henderson

However, the unexpected and disappointing selection of John Ashcroft compels our current position. It is hard to conceive of an Attorney General nominee with more immoderate beliefs and a more abysmal civil rights record than former Senator Ashcroft. For over 30 years in public life, first in Missouri and then in Washington, John Ashcroft has been on the wrong side of virtually every issue of concern to the membership organizations of the Leadership Conference. In reaching to the farthest degree of his political party to make this selection, President-elect Bush has displayed indifference to the sensitivities of African-Americans, Hispanic Americans, women, Americans with disabilities, gays and lesbians, the elderly, and so many other Americans who are concerned about equal justice under law.

Wade Henderson

We acknowledge that a President is ordinarily entitled to deference in his choice of executive branch appointees, but the nomination of Senator Ashcroft to be Attorney General overcomes that presumption for four reasons.

Wade Henderson

First, this appointment occurs in a political context unprecedented in our Nation's history. The Ashcroft nomination was announced less than 2 weeks after the extraordinarily close Presidential elected ended in an abrupt and discomforting manner. It is no secret that Americans were aggrieved by the circumstances of the election, especially in the decisive State of Florida.

Wade Henderson

It is often said that Dr. Martin Luther King gave up his life so that others would have the right to vote, but as we have learned last November that even in the year 2000, some citizens are less firmly enfranchised than others. Investigations by the NAACP, the United States Commission on Civil Rights, and other groups have exposed widespread suppression of the African-American vote in Florida and disparities in election technology that systematically disadvantage voters in less affluent neighborhoods.

Wade Henderson

In the wake of this harrowing election, we might have expected the new President to reach out to the civil and human rights community by selecting, yes, a conservative, but an Attorney General with nonpartisan statute and an unquestioned commitment to well-established principles of equal protection under law. And we might have expected the new administration to turn its attention immediately to the electoral reforms needed to assure Americans that in this democracy every vote counts. Instead, with the wounds of Florida still raw, the country finds itself in the midst of a divisive debate over the confirmation of John Ashcroft. Responsibility for this new schism unfortunately does not rest with the civil rights community and those who oppose Senator Ashcroft.

Wade Henderson

I did not hear questioned in any way the legitimacy of the election results, but I must observe that the incoming President, we believe and say so quite respectfully, lacks an electoral mandate to undertake the dramatic reconsideration of civil rights policy that this nomination implies.

Wade Henderson

Second in my list of four items, the deference due to an executive branch appointment does not end debate on this nomination because of the unique role of the Attorney General in our constitutional system.

Wade Henderson

As the Nation's chief law enforcement officer, the Attorney General serves in a quasi-judicial function. He or she adjudicates legal disputes within the executive branch and renders advisory constitutional opinions upon which the President and Congress rely. He or she serves as the President's chief advisor on judicial nominations, which for all of us is an important responsibility, including nominations to the Supreme Court.

Wade Henderson

Finally, the Attorney General represents the United States in the Supreme Court through the Solicitor General, an officer sometimes referred to as "the tenth Justice" because of the special reliance the Justices place on the Solicitor to advise the Court on the state of the law.

Wade Henderson

Thus, the Attorney General is not merely the President's agent, not just another member of the President's team. The Justice Department enjoys a tradition of independence and a unique constitutional standing that should lead the Senate to grant less deference to the President's choice for Attorney General than the deference due to the President's other Cabinet selections.

Wade Henderson

Chairman Leahy and others have taken note of Senator Ashcroft's unyielding opposition to the nominations of BILl Lan Lee as Assistant Attorney General for Civil Rights, Henry Foster and David Satcher for Surgeon General, James Hormel to be Ambassador to Luxembourg. It might be argued that a Senator who did not extend to President Clinton the deference due to executive branch appointments is not entitled to the benefit of such deference upon his own nomination. However, that is not our position. We disputed what has been called now the "ashcroft standard" when it was applied to Mr. Lee or Dr. Foster or Mr. Hormel, but we will not apply it to Senator Ashcroft himself. Rather, we contend that the skepticism with which Senator Ashcroft unfairly approached these other nominations is, in fact, justified in the case of the Attorney General.

Wade Henderson

I notice that my red light is on, and so I need to summarize and I will try to do so very briefly.

Wade Henderson

Let me say that there are numerous concerns that we have. Obviously, we have heard much testimony over the last 2 days from Senator Ashcroft himself attesting to his willingness to enforce the law, to respect the great traditions of the Department of Justice, and, indeed, we were pleased to hear that news on that information. However, when you examine the record, the totality of the record that Senator Ashcroft has established, first as Attorney General in St. Louis, the cases that have been mentioned here including the school desegregation case that has been so noted and other concerns, we believe do, in fact, require us to oppose him as a compelling matter of principle, and we hope, indeed, that the Senate will reject his nomination.

Wade Henderson

Statement of Wade Henderson, Executive Director, Leadership Conference on Civil Rights, Washington, DC Chairman Leahy, Senator Hatch and members of the Committee: I am Wade Henderson, Executive Director of the Leadership Conference on Civil Rights (LCCR). I appreciate the opportunity to present to you the views of the Leadership Conference regarding the nomination of former Senator John Ashcroft to be Attorney General of the United States.

Wade Henderson

Wade Henderson

The LCCR is the nation's oldest and most diverse coalition of civil rights organizations. Founded in 1950 by Arnold Aronson, A. Philip Randolph, and Roy Wilkins, the Leadership Conference seeks to further the goal of equality under law through legislative advocacy and public education. The LCCR currently consists of over 180 organizations representing persons of color, women, children, organized labor, persons with disabilities, the elderly, gays and lesbians, and major religious groups. I am privileged to represent the civil and human rights community in addressing the Committee today. .

Wade Henderson

The Leadership Conference on Civil Rights strenuously opposes the nomination of Senator Ashcroft to be Attorney General.\1\ I report this judgment to you with sadness. We did not seek this battle, and we do not relish it. We are mindful of the calls for bipartisan cooperation that accompany the upcoming inauguration of President-elect Bush, and we had looked forward to working with the new President and his Attorney General on the wide array of civil rights challenges facing the Nation. We still do. -

Wade Henderson

However, the unexpected and deeply disappointing selection of John Ashcroft compels our current position. It is hard to conceive of an Attorney General nominee with more immoderate beliefs and a more abysmal civil rights record than former Senator Ashcroft. For over thirty years in public life, first in Missouri and then in Washington, John Ashcroft has been on the wrong side of virtually every issue of concern to the membership organizations of the Leadership Conference. In reaching to the farthest extreme of his political party to make this selection, President-elect Bush has displayed gross indifference to the sensitivities of African-Americans, Hispanic-Americans, women, Americans with disabilities, gays and lesbians, the elderly, and so many other minority citizens.

Wade Henderson

First, this appointment occurs in a political context unprecedented in our Nation's history. The Ashcroft nomination was announced less than two weeks after the extraordinarily close presidential election ended in an abrupt and discomforting manner. It is no secret that Americans were aggrieved by the circumstances of the election, especially in the decisive state of Florida. It is often said that Dr. Martin Luther King, Jr. gave up his life so that others would have the right to vote, but as we learned last November that, even in the year 2000, some citizens are less firmly enfranchised than others. Investigations by the NAACP, the United States Commission on Civil Rights and other groups have exposed widespread suppression of the African-American vote in Florida and disparities in election technology that systematically disadvantage voters in less affluent neighborhoods.

Wade Henderson

In the wake of this harrowing election, we might have expected the new President to reach out to the civil and human rights community by selecting an Attorney General with nonpartisan stature and an unquestioned commitment to well-established principles of equal protection under law. And we might have expected the new Administration to turn its attention immediately to the electoral reforms needed to assure Americans that in this democracy every vote counts. Instead, with the wounds of Florida still raw, the country finds itself in the midst of a divisive debate over the confirmation of John Ashcroft. Responsibility for this new schism rests solely with the Presidentelect.

Wade Henderson

I do not here question the legitimacy of the election results. But I must observe -- with deliberate understatement -- that the incoming President lacks an electoral mandate to undertake the dramatic reconsideration of civil rights policy that this nomination implies.

Wade Henderson

Second, the deference due to an executive branch appointment does not end debate on this nomination because of the unique role of the Attorney General in our constitutional system. As the nation's chief law enforcement officer, the Attorney General serves in a quasi judicial position. He or she adjudicates legal disputes within the Executive Branch, and renders advisory constitutional opinions upon which the President and the Congress rely. He or she serves as the President's chief advisor on judicial nominations, including nominations to the Supreme Court. Finally, the Attorney General represents the United States in the Supreme Court through the Solicitor General, an officer sometimes referred to as "the 10 th Justice" because of the special reliance the Justices place on the Solicitor to advise the Court on the state of the law.

Wade Henderson

Chairman Leahy and others have taken note of Senator Ashcroft's unyielding opposition to the nominations of Bill Lann Lee as Assistant Attorney General for Civil Rights, Henry Foster and David Satcher for Surgeon General, James Hormel to be Ambassador to Luxembourg and others.

Wade Henderson

It might be argued that a Senator who did not extend to President Clinton the deference due to executive branch appointments is not entitled to the benefit of such deference upon his own nomination. Because we disputed the "Ashcroft test" when applied to Mr. Lee, Dr. Foster, Dr. Satcher and Mr. Hormel, we will not apply it to Senator Ashcroft himself. Rather, we contend that the skepticism with which Senator Ashcroft unfairly approached the Lee, Foster, Satcher and Hormel nominations is, in fact, justified in the case of a nominee to be Attorney General.

Wade Henderson

Third, whatever level of deference might otherwise buttress the President's Cabinet selections cannot save this nomination because of Senator Ashcroft's extreme anti-civil rights record. This is a man whose public positions are so anathema to the mission of the agency he has been chosen to lead that the Senate should conclude he cannot reasonably fulfill the solemn duties that would be entrusted to him as Attorney General.

Wade Henderson

Senator Ashcroft pledges to uphold laws with which he disagrees. Even if that were possible for a man of such passionate ideology, can there be any doubt that he would work every minute of every day in office to shape those laws to more closely conform to his extreme vision?

Wade Henderson

I will highlight just a few ofthe untenable contradictions between the responsibilities Senator Ashcroft would assume at the Department of Justice and the radical positions he has espoused as a public official: The Attorney General is responsible for litigation on behalf of the United States to implement the Constitutional promise of racial integration. Yet as Attorney General of Missouri, John Ashcroft led the dishonorable resistance to federal court orders seeking to integrate St. Louis and Kansas City public schools. More recently, in hearings he chaired in this Committee in 1997, Senator Ashcroft appeared to criticize the landmark case of Brown v. Board of Education as an example of unwarranted judicial activism.\2\ -

Wade Henderson

The Attorney General serves as the principle advisor to the President on judicial nominations. Yet Senator Ashcroft has opposed numerous judicial nominees on illegitimate grounds, and his tactics in engineering the Senate's rejection of Missouri Supreme Court Justice Ronnie White to be a United States District Court judge were either inappropriately political or reveal a misguided understanding of our judicial system. By twisting the facts of a small handful of Justice White's opinions, Senator Ashcroft declared the nominee to be "pro- criminal" and "anti-death penalty," and said Justice White, the only African-American to sit on the Missouri Supreme Court in its 175 year history, exhibited "a tremendous bent toward criminal activity." In fact, Justice White voted to uphold 41 of 59, or 70%, of the death sentences he reviewed while on the Court. According to the Washington Post, "Ashcroft badly distorted White's record at a time when he was looking for law-and-order issues for his reelection campaign." The Attorney General is responsible for enforcement of the Freedom of Access to Clinic Entrances Act and is in other respects the custodian of the constitutional right to reproductive choice.\3\ Yet John Ashcroft has amassed a record of unmatched hostility to Roe v. Wade. He has said that if he could pass one law it would be to ban all abortions, even those necessitated by rape or incest, except as necessary to save the life of the mother. He has argued that common forms of contraception constitute abortion and has opposed insurance coverage for contraception. He has a record of antipathy on a range of other issues important to women as well. -

Wade Henderson

John Ashcroft was one of two Senators who voted against Hormel's nomination in the Senate Foreign Relations Committee. He did so without attending the hearing or submitting questions or statements for the record. Hormel's nomination was voted out of committee, 16 to 2.

Wade Henderson

After the hearing, Hormel sent a letter requesting a meeting with Ashcroft to discuss his qualifications. In the letter Hormel raised a previous connection and appealed to Ashcroft as the former Dean of Admissions who had admitted Ashcroft to the University of Chicago School of Law in 1964. Hormel followed up with three telephone calls and had others call as well. Hormel never even received the courtesy of a return phone call from Ashcroft's staff. The following year Ashcroft said, "People who are nominated to represent this country have to be evaluated for whether they represent the country well and fairly. His conduct and the way in which he would represent the United States is probably not up to the standard that I would expect. He has been a leader in promoting a lifestyle. . . . And the kind of leadership he's exhibited there is likely to be offensive to. . . individuals in the setting to which he will be assigned". (The Boston Globe, June 24, 1998).

Wade Henderson

Ashcroft and his allies blocked Hormel's nomination for more than a year because he is gay. President Clinton exercised his constitutional power by appointing Hormel during a congressional recess. Ambassador Hormel served with distinction in Luxembourg for 18 months. Due to the groundbreaking work of Attorneys General such as Robert Kennedy, Nicholas Katzenbach and Edward Levi, the Justice Department today is a symbol of racial progress and healing. Yet over many years, John Ashcroft has displayed astonishing disrespect to the concerns of minorities. Only two years ago he accepted an honorary degree from Bob Jones University, an institution notorious for its history of segregation, its ban on inter-racial dating and its anti- Catholic and homophobic traditions. Only three years ago he gave an interview to the neo- Confederacy racist publication "Southern Partisan" in which he said: "Your magazine helps set the record straight You've got a heritage of doing that, of defending Southern patriots like (Robert E.) Lee, (Stonewall) Jackson and (Jefferson) Davis. Traditionalists must do more. 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."

Wade Henderson

Fourth, the deference due to the President's executive branch appointments evaporates when a nominee testifies at his confirmation hearing in a manner that is less than candid. While there are many aspects of Senator Ashcroft's testimony that are subject to this criticism, the nominee's testimony about the St. Louis desegregation case veers especially far from the facts.

Wade Henderson

Despite Senator Ashcroft's denials over the last two days, the State of Missouri he represented as State Attorney General was found directly liable for illegal school segregation in St. Louis, notwithstanding repetitive and unsuccessful appeals by the nominee all the way to the U.S. Supreme Court. Despite the nominee's claim that he followed all court orders in the case, the federal judge presiding over the case concluded that "the state has, as a matter of deliberate policy, decided to defy the authority of the court." And despite the nominee's claim that he supported voluntary desegregation, the fact is that Ashcroft publicly called the St. Louis desegregation plan an "outrage against human decency."

Wade Henderson

At bottom, the Attorney General of the United States must have a demonstrated commitment to the constitutional principles of due process and equal protection. The Department of Justice must be perceived by the public as an instrument of justice, and the person who leads the Department must be the embodiment of fairness and impartiality. These are vital criteria in our heterogeneous democracy, especially in the wake of the Florida debacle. By these measures, the Ashcroft nomination fails utterly.

Wade Henderson

Simply put, John Ashcroft's extreme views and public record on a range of issues are irreconcilable with the duties of an Attorney General. His open hostility to the very laws and policies he would be called on to enforce, laws indispensable to the preservation of civil rights of all individuals in our society, leave the LCCR no choice but to oppose his nomination.

Wade Henderson

We urge members of the Senate to vote against the confirmation of John Ashcroft to this important position.

Patrick Leahy

Thank you, Mr. Henderson.

Patrick Leahy

I would note that both you and Judge Mason went over just about exactly, almost to the second, the same amount of time.

David Mason

I am sorry, Mr. Chair.

Patrick Leahy

It is a difficult thing, and you both have extremely important things to say. I mention that because I can see the clock and Senator Hatch can see the clock. The rest cannot see the exact time, and, unfortunately, it is the realities of a nomination hearing like this and trying to get so much in.

Patrick Leahy

I suspect Pastor Rice would never want to have one of his sermons cut to 5 minutes, and I suspect your congregation wouldn't want you to.

Patrick Leahy

Pastor, go ahead, please.

Patrick Leahy

Rev. Rice. I think that may be debateable with some, but we will do our best.

Patrick Leahy

Mr. Chairman and Senator Hatch, my name is Pastor Booker T. Rice, and I have been a pastor in St. Louis, Missouri, since 1979 and am presently with the New Horizons Seventh Day Christian Church.

Patrick Leahy

I am here today at the request of the St. Louis Clergy Coalition believed to be the largest and oldest organization of African-American ministers in the State of Missouri, and its president, the Reverend Dr. Earl Nance, Jr., to register our strong opposition to John Ashcroft's confirmation as Attorney General of these United States of America.

Patrick Leahy

Our opposition centers primarily around, but not limited to, the following reasons. First, Mr. Ashcroft made false and inflammatory charges against Missouri Supreme Court Justice Ronnie White. Mr. Ashcroft labeled this distinguished jurist as "pro-criminal, dangerous liberal" and the "most anti-capital punishment judge on the Missouri court." These labels fly in the face of the fact that in no way reflects the record of this distinguished judge.

Patrick Leahy

Second, we oppose Mr. Ashcroft because of his consistent opposition to restrictions on handgun ownership and consistent support of what we call "packing," or better known as carrying concealed weapons.

Patrick Leahy

Third, we oppose Mr. Ashcroft because of his insensitivity to the African-American community in general and to the African-American community in Missouri in particular.

Patrick Leahy

We also oppose Mr. Ashcroft's extreme unyielding position on a woman's right to choose.

Patrick Leahy

It is my intention here today to expand on several of these points so that you may better understand why the appointment of John Ashcroft would be divisive and insulting to our community.

Patrick Leahy

To characterize Judge White as "pro-criminal" makes a false assertion that the respected judge is a supporter of criminal activities. We teach our children to set their sights on good role models, then pattern their lifelong goals after those role models. Unfortunately, sometimes our children focus on what we perceive to be wrong role models. So we attempt to refocus or redirect them to those we believe the very best for our Missouri children. In our community, Judge White has become such a role model.

Patrick Leahy

Imagine, if you will, our disappointment to read, hear, or see in media that a U.S. Senator has referred to this role model as "pro-criminal." We know Justice White well and know that the facts do not in any way, shape, form, or fashion resemble this distortion. Mr. Ashcroft's careless remarks were very damaging to our community and to the work we do with our children.

Patrick Leahy

We in the faith community believe that sensitivity to minorities is absolutely essential to our Nation's chief law enforcement officer. Mr. Ashcroft associating himself with and participating in organizations and institutions like the Southern Partisan magazine and Bob Jones University demonstrates insensitivity as well as poor judgment.

Patrick Leahy

We felt deeply betrayed when Mr. Ashcroft's statement in the Southern Partisan magazine and his acceptance of an honorary degree from Bob Jones University, two institutions notorious for their extreme racist statements and policies. Any affiliation with these kinds of institutions demonstrates complete disregard for our community.

Patrick Leahy

Mr. Ashcroft's vocal and fervent opposition to the voluntary desegregation of Missouri schools was quality insensitivity. He was more concerned with the cost of desegregation than with the interest of African-American children in our community. He never apologized for segregation. He closed the door on negotiation, and he strictly opposed desegregation.

Patrick Leahy

We are deeply troubled by the strong stance that Mr. Ashcroft took while Governor of Missouri to prevent independent voter registration drives in St. Louis. Opposing independent voter registration drives in St. Louis which is about 53- percent African-American was more than insensitive. It was offensive.

Patrick Leahy

The Senator's record opposing restrictions on handguns ownership and supporting carrying concealed weapons shows a lack of common concern for the safety of our community. Too many African-American youth die each year, the victim of senseless handgun violence. We need less guns, not more guns. We need more control of handguns, not more handguns.

Patrick Leahy

Finally, to the issue of a woman's right to choose, Mr. Ashcroft's position is apparently far, far to the right of even the most conservative views. Regarding a woman's right to choose, Mr. Ashcroft says no, under any circumstances, at any risk.

Patrick Leahy

So, as we examine Mr. Ashcroft's record, we must ask ourselves whether we can count on the Justice Department under John Ashcroft to be fair on civil rights, fair on discrimination, fair on racial profiling, fair on handguns, and fair on a woman's right to choose.

Patrick Leahy

As a minister of the gospel and righteousness, speaking on behalf of myself and my colleagues, we have come too far and we have traveled too long to be turned back into the wilderness of indecision and cohesion based on race, color, and national origin. We are not in the mood to have to retrace our steps to be turned back into Egypt where many have died in the struggle for civil rights and decent treatment.

Patrick Leahy

As human beings, under our stars and stripes, shall we go back to the wilderness of oppression, or shall we go forward into the full reality of the American dream?

Patrick Leahy

Thank you, Pastor.

Patrick Leahy

Rev. Rice. Your vote will tell the world the direction in which we, this great Nation, will go.

Patrick Leahy

First, Mr. Ashcroft made false and inflammatory charges against Missouri Supreme Court Justice Ronnie White. Mr. Ashcroft labeled this distinguished jurist a "pro-criminal, dangerous liberal" and the "most anti-capital punishment judge on the Missouri court." These labels fly in the face of the facts and in no way reflect the record of this distinguished Missouri Supreme Court Justice.

Patrick Leahy

Second, we oppose Mr. Ashcroft because of his constant opposition to restrictions on hand gun ownership and consistent support for "packing" or carrying concealed weapons.

Patrick Leahy

We also oppose Mr. Ashcroft because of his insensitivity to the AfricanAmerican community in general, and the African-American community of Missouri in particular.

Patrick Leahy

We also oppose Mr. Ashcroft's extremely unyielding positions on a woman's right to choose.

Patrick Leahy

These are our primary reasons for opposition and it is my intention here today to expand on several of these points so that you may better understand why the appointment of John Ashcroft would be divisive and insulting to our community.

Patrick Leahy

To characterize Justice White as "pro-criminal" makes the false assertion that the respected Missouri Justice is a supporter of criminal activities. We teach our children to set their sights on good role models, then pattern their life long goals after their role models.

Patrick Leahy

Unfortunately, sometimes our children focus on what we perceive to be wrong role models, so we attempt to refocus or redirect them to those we believe to be the very best for Missouri children. In our community, Justice White has become such a role model.

Patrick Leahy

Imagine if you will our disappointment to read, hear, and see in media that the United States Senator had referred to this role model as pro-criminal. We know Justice White well and know that the facts do not in any way, shape, or form resemble this distortion. Mr. Ashcroft's careless remarks were very damaging to our community and to the work we do with our children.

Patrick Leahy

We in the faith community believe that sensitivity to minorities is absolutely essential for our nation's chief law enforcement officer. Mr. Ashcroft's association with, and participation in, organizations and institutions like the Southern Partisan Magazine and Bob Jones University demonstrate insensitivity, as well as poor judgment. The African-American community in Missouri felt deeply betrayed by Mr. Ashcroft's statements in the Southern Partisan Magazine, and his acceptance of an honorary degree from Bob Jones University, two institutions notorious for their racist statements and policies. We believe that any affiliation with these kinds of institutions demonstrates complete lack of sensitivity and disregard for our community.

Patrick Leahy

Mr. Ashcroft's vocal opposition to the voluntary plan to desegregate Missouri's schools and the fervent manner with which he blocked voluntary desegregation were equally insensitive. Mr. Ashcroft was more concerned with the costs of desegregation than the interests of African-American children in our community. He never apologized for segregation; he closed the door to negotiations; and he strictly opposed desegregation.

Patrick Leahy

We are also deeply troubled by the strong stance that Mr. Ashcroft took while governor of Missouri to prevent independent voter registration drives in St. Louis. Independent voter registration drives were a common practice throughout other parts of the state, including St Louis County, which is predominately white.

Patrick Leahy

They worked well in St. Louis County and could have worked well in the city also. Opposing independent voter registration drives in the city of St. Louis, which is 53% African-American, was more than insensitive. It was offensive.

Patrick Leahy

The Senator's record opposing restrictions on hand gun ownership and instead supporting the carrying of concealed weapons shows a lack of common concern for safe streets, safe neighborhoods, and safe communities. Too many of our African-American youth die each year, the victims of senseless hand gun violence. We need less guns, not more guns. We need more control of hand guns, not more hand guns.

Patrick Leahy

Finally, to the issue of a woman's right to choose, Mr. Ashcroft's position is apparently far, far, to the right of even the most conservative views. Regarding a woman's right to choose, Mr. Ashcroft says, "no, under any circumstance, no at any risk, no. It makes no difference what, No!"

Patrick Leahy

So, as we examine Mr. Ashcroft's history on a number of key issues, we must ask ourselves whether we can count on the Justice Department under John Ashcroft to be fair on civil rights, fair on discrimination, fair on racial profiling, fair on hand gun control, fair on a woman's right to choose. We think not.

Patrick Leahy

Our concern is that Mr. Ashcroft will do everything in his power to reshape this great Constitution of ours to reflect his personal sense of what is right and what is wrong. We fear that he will exercise his duties as Attorney General with the same insensitivity he brought to his duties as Governor and Attorney General of Missouri. We did not support him then, and cannot support him now. His record on so many issues of grave importance to African-Americans was harmful to our community and caused division in our state. We believe he will bring the same division and harm to our country.

Patrick Leahy

John Ashcroft has every right to hold strong views on civil rights and other issues, but he should not be Attorney General of the United States.

Patrick Leahy

As a minister of righteousness, speaking on behalf of myself and my colleagues, we have come too far and traveled too long to be turned back into the wilderness of indecision and coercion based on race, color or national origin. We are not in the mood of having to retrace our steps to be turned back into Egypt where many have died in the struggle for civil rights and decent treatment.

Patrick Leahy

As human beings under our stars and stripes shall we go back to the wilderness of oppression or shall we go forward into the full reality of the American dream? Your vote will tell the world the direction in which this -- our great county -- will go.

Patrick Leahy

Thank you, Pastor.

Patrick Leahy

Rev. Rice. And I didn't preach.

Patrick Leahy

No, no. Listen, I like preaching. I always worry when I am at church and I don't hear a sermon that gets me going.

Patrick Leahy

Mr. Woodson, Pastor Rice takes a different position than you do.

Robert Woodson

He went a bit over, and I will give you the same amount of time. I want to be as fair as possible. I will give you the same amount of time over, but, again, please try to --

Patrick Leahy

Robert Woodson

I will.

Patrick Leahy

STATEMENT OF ROBERT L. WOODSON, SR., PRESIDENT, NATIONAL CENTER

Patrick Leahy

Robert Woodson

I am Robert L. Woodson, Sr., president and founder for the National Center for Neighborhood Enterprise, a national non- profit that assists low-income neighborhood leaders in 39 States, and I am here today to represent a federation of grass- roots, faith-based organizations that operate throughout this Nation, but I am also a veteran of the civil rights movement, having served and organized demonstrations in the 1960's and 5 years with the National Urban League.

Robert Woodson

Robert Woodson

I am here today, first of all, to voice strong support for Senator Ashcroft as Attorney General. Let me just destroy a myth. There are those who tend to believe that the black community speaks in one voice. We are not monolithic. A lot of people talk about diversity except when it comes to expression of independent political views, and so I challenge my colleagues who come here before you and say the black community believes this, the black community wants this. We do not speak with a single voice.

Robert Woodson

It is a prophetic irony that we meet at this time when 4 years ago, a 12-year-old boy named Daryl Hall was snatched from a car on his way home, just 20 minutes from here, in an area called Simple City, Benning Terrace Public Housing. He was assassinated as a consequence of a conflict between two warring factions, the Avenue and the Circle. Fifty-five young black men died in a five-square-block area in 2 years as a consequence of this conflict. The police couldn't make a difference. Social services couldn't make an impact. But the National Center working with faith-based organizations, the Alliance of Concerned Men, went up into this area where people were huddled in their homes with refrigerators next to doors and brought these warring factions, the leadership, 16 of them, to my office downtown. They were searched. They had bulletproof vests. We started with prayer, and we negotiated a settlement, the first truce, and as a consequence of this negotiation, we put these young people to work, thanks to the Housing Authority and David Gilmore, and rebuilding their community, taking out the graffiti.

Robert Woodson

I am pleased to report after 4 years of these faith-based organizations working in Benning Terrace, one of the most dangerous areas of the city, we have not had a crew-related killing in 4 years as a consequence.

Robert Woodson

I have a young man here. Stand up, Vernon.

Robert Woodson

Vernon Wise, who is a young man, his heart had been transformed as a consequence.

Robert Woodson

Vernon in that war was shot 10 times at point-blank range with a .45. He lost three of his ribs, his spleen, and a kidney, and Vernon spent time in prison, six cells down from his father. To all conventional wisdom, he was Godless, hopeless, and useless, but we reached out to him in a spirit of Godly love and now Vernon is trained as a telecommunications specialist, having gone to school, and is now a responsible person.

Robert Woodson

Robert Woodson

Vernon is one of 100,000 young people like him whose lives have been transformed through these faith-based organizations, Teen Challenge, Victory Temple, who exist all over this Nation. Senator John Ashcroft is the only person who from the time he came into this body reached out to us. He is on the board of Teen Challenge. He has raised money for them. He sponsored the charitable choice legislation that will stop the Government from trying to close them down because they don't have trained professionals as drug counselors.

Robert Woodson

We have an 80-percent success rate of these faith-based organizations with a $60-a-day cost when the conventional therapeutically secular programs cost $600 a day with a 6-to- 10-percent success rate. Senator Ashcroft has gone with us. He has fought with us, and this legislation would help us.

Robert Woodson

As a consequence, the day before yesterday, 150 black and Hispanic transformed drug addicts got on busses from all over this Nation and came here to support him. Fifty of them came from Victory Temple, throughout the State of Texas, spent 2 days on a Greyhound bus at their own expense to come here to voice strong support for Senator Ashcroft.

Robert Woodson

So let me say to you that a criminal personality is one who is very discerning because you have to be in order to survive. They are not Democrats. They are not Republicans. They are not conservatives or liberals, but they know the real thing when they see it, and they came here to voice strong support for Senator Ashcroft.

Robert Woodson

Let me say to those of you who adhere to charges of racism. As a civil rights veteran, I reject this notion that we should soil the rich legacy of the civil rights movement by using it as a sword against those with whom we have political disagreements and as a shield to protect those who happen to agree with us who are even criminals. You can be a pedophile, you can be a sex abuser, and you can be a thief and still score A on the NAACP's credit card, and as long as you hold the right political views.

Robert Woodson

I have as part of my testimony an article that I published in The Wall Street Journal that gives names of people that have been supported for reelection to office who have committed these crimes. So I am saying to you that we hope that you will vote this man in knowing that the black community does not speak with a single voice and that we strongly support Senator Ashcroft.

Robert Woodson

I will be pleased to take questions or elaborate further on the reasons why we support this very noble man. I don't know why righteousness has to be an exemption for public service in America.

Robert Woodson

There is clear evidence that the most critical problems of our society are not caused by poverty or racism, and that they cannot be alleviated by remedies that assume these causes. General trends among young people in our nation's suburban communities -- rising rates of gang activity, youth crime, and adolescent substance abuse, make this very clear. We are facing a nationwide crisis -- a spiritual and moral freefall -- which has brought fear and uncertainty throughout America. Fifty-three percent of respondents in a recent USA today/CNN/Gallup poll said that the nation's moral problems concerned them more than economic problems, while 39 percent rated the state of moral values in our nation as "very weak."

Robert Woodson

The good news is that solutions to this crisis do exist. However, if we are to forge an effective strategy of moral and spiritual revitalization, we must move the focus of the debate beyond racial and economic considerations. To develop solutions for the crises we now face, we must go beyond the level of education, jobs, housing, or racial reconciliation. These strategies will never be able to address the root of a crisis that is essentially spiritual and moral. If we are to identify effective remedies, we must be willing to look to a new source for solutions.

Robert Woodson

Over the past 20 years, the National Center for Neighborhood Enterprise has worked with grassroots, faith-based organizations within the nation's inner cities that have transformed the homeless into homeowners, hopeless addicts into productive citizens, and violent youth predators into peacekeepers. Through the power of God they have worked these miracles without tv control, gun control, but through self-control. Some examples of these God-centered transformation stations are as follows:

Robert Woodson

Teen Challenge, with more than 150 chapters in the U.S. and abroad; Victory Fellowship, with 65 chapters in the U.S. and Latin America; and Youth Challenge, with some 50 locations in the U.S. and internationally, are faith-based substance abuse programs with very successful track records in freeing drug and alcoholic addicts from their addictions.

Robert Woodson

Victory Fellowship, for instance, founded in San Antonio almost 30 years ago by Pastor Freddie Garcia, has a success rate of more than 70% of those that complete its program. Victory finds its success in the rehabilitation of heroin and other severe addicts through a program that is composed of Bible study, prayer, chapel, one-on-one counseling -- mostly by others who have conquered their own addiction -- and visiting former haunts to evangelize old friends and drug colleagues as well as to let them know of the success of the program. The program leads addicts through three attitudinal changes: Regeneration, Responsibility, and Reconciliation. Without these critical phases, Pastor Garcia says, the program would have the same results as those of secular programs. The program normally takes 18 months, during which time the individual changes from being a "taker" to a "giver."

Robert Woodson

Despite this success, faith-based programs are continually under assault by the professional poverty industry. In fact, several states have tried to shut down these organizations with the charge that they do not have trained professionals as counselors, and therefore do not meet the states requirement. To focus attention on this issue, in 1995 the National Center for Neighborhood Enterprise led a demonstration in Texas against the Texas Commission on Alcohol and Drug Abuse (TCADA), which was trying to close down a very effective Teen Challenge chapter there. When the situation became known to then Governor Bush, he responded by initiating legislation to exempt faith-based substance abuse programs from regulations by the state.

Robert Woodson

We brought this issue to Senator Ashcroft, who has long been a champion of faith-based programs. He immediately responded and has worked tirelessly with us when there were no headlines to be made and no political capital to be gained. He fashioned the Charitable Choice provision in 1996, and it was passed overwhelmingly by the Congress in the Welfare Reform legislation. Many times he has traveled to different parts of the country at great inconvenience to himself, to address grassroots groups that are trying to solve the problems of their own neighborhoods. And he has persuaded many other members of both parties to do the same.

Robert Woodson

I would like to read from a letter Senator Ashcroft wrote for one of our publications about why he initiated the Charitable Choice legislation:

Robert Woodson

In the past, many successful faith-based organizations have not participated in government programs for fear of having to compromise their religious integrity or of being hobbled by excessive government regulation and intrusion. The confusing array of legal precedents has often led government officials to conclude mistakenly that constitutional law requires that faith-based organizations be excluded from the mix of private service providers, or that entities accepting government funds must forego their religious character. One of my goals in proposing the Charitable Choice provision was to encourage faith-based organizations to expand their involvement in the welfare reform effort by providing assurances that their religious integrity would be protected. The Charitable Choice provision uses U.S. Supreme Court case precedents to clarify what is constitutionally permissible when states and local governments cooperate with the religious and charitable sector of society. The provision protects the rights of faith-based providers as well as the religious liberty of the individuals they may serve. These are not the words of a zealot or a person who would place his personal opinions above the rule of law. These are the words of a man who is a servant of the law, and who has a deep concern for those in need.

Robert Woodson

That is why over 150 grassroots leaders pooled their resources to travel here this week, 50 of them riding in a bus for two days, with a return trip of two more days -- just to come and demonstrate their support. Ninety-percent of those who came are transformed drug addicts, thieves, and prostitutes -- people that society has given up on. But Senator Ashcroft, since he has been the in Senate, has worked tirelessly on their behalf.

Robert Woodson

Let me address the really outrageous accusations that Senator Ashcroft is a racist. As a former civil rights advocate, who led demonstrations in the 60's, a person who has personally felt the sting of racism in the three years I served in the south, who went to jail three times, I can tell you that we should not permit false accusations of racism to trump character. Members of the press and public are quick to attack bigotry. But we should also reject bigotry coming from those who style themselves as defenders of justice, who use race as a spear against those with whom they disagree, and a shield against personal responsibility.

Robert Woodson

Senator Ashcroft is not a racist, and others who have testified have articulated his record in supporting minorities. While governor of Missouri, he appointed the first black federal judge. Three members of his cabinet were black. He fought to save Lincoln University and approved making Martin Luther King's birthday a legal holiday. He voted yes for 26 out of 28 blacks nominated by President Clinton for federal judgeships.

Robert Woodson

Some attack Senator John Ashcroft on the grounds that he will be "bad" for black issues, like affirmative action and abortion. But it is a fallacious assumption that blacks are monolithic in their opinions. Seldom is it reported that 47% of blacks oppose race-based affirmative action. Seventy-four percent of those with school-age children favor school choice. A large percentage of blacks oppose abortion. And many do favor the death penalty. The most important thing to say, however, is that he is a man of integrity who will uphold the law.

Robert Woodson

His Charitable Choice legislation alone may do more to help blacks solve the real problems in their own communities than anything else government has done.

Robert Woodson

The most important thing in this day and age is to have leaders who are morally and spiritually sound, especially in public offices like the Attorney General. In this post-civil rights era, we need moral and spiritual leadership as never before. And John Ashcroft passes the test.

Patrick Leahy

Thank you, Mr. Woodson. I appreciate that.

Patrick Leahy

Mr. Taylor, go ahead.

William Taylor

Mr. Chairman, Senator Hatch, members of the Committee, I appreciate the opportunity to be here and present testimony.

William Taylor

William Taylor

I have been a civil rights lawyer for more than 45 years, beginning as a staff attorney for Thurgood Marshall at the NAACP Legal Defense Fund and later serving as General Counsel and then Staff Director of the United States Commission on Civil Rights during the 1960's.

William Taylor

You know I am well affiliated, but my testimony today is solely on my own behalf. I am the lead counsel for a class, not a single, a class of African-American and white students in the major school case in St. Louis. I have served as counsel for more than 20 years, and for much of that time, John Ashcroft was a lawyer and defendant in the case, first as Missouri Attorney General and later as Governor.

William Taylor

I have fought seriously since this nomination about whether Mr. Ashcroft's conduct in the St. Louis case was simply that of a lawyer vigorously defending the interest of the State or whether some of his actions went over the line of strong advocacy and reflect on his qualifications to serve as Attorney General of the United States. My conclusion is that the latter is the case.

William Taylor

I believe that in his tenure as Attorney General, Mr. Ashcroft used the court system to delay and obstruct the development and implementation of a desegregation settlement that was agreed to by all major parties except the State. In so doing, he sought to prevent measures that were a major step toward racial reconciliation in an area where there had been much conflict and to thwart a remedy that ultimately proved to be a very important vehicle for educational progress.

William Taylor

Worse yet, Mr. Ashcroft sought to exploit fears and misconceptions about desegregation as a means of gaining higher political office, thereby deepening racial divisions in the St. Louis area. Taken together, I believe these actions raise the most serious questions about whether Mr. Ashcroft is prepared to serve all the people as Attorney General and to enforce the civil rights laws fairly and impartially. I realize these are serious charges, but I am prepared to document them.

William Taylor

I assume my full statement will be in the record.

Patrick Leahy

I would like to concentrate the remainder of my time on statements Mr. Ashcroft has made as a witness here. I will skip over statements that he made about whether the State was a party to the case at the time adjudications were made about its responsibility, and I will skip over his allegations that the State did nothing wrong. I think, Mr. Chairman, he may have taken some of those back in conversation with you.

William Taylor

William Taylor

I want to focus on the question of whether it is trust, as Mr. Ashcroft claimed, that in all cases where the court made an order, "I followed the order both as Attorney General and Governor," and that, he did not repudiate, he, in fact, repeated. Nothing could be further from the truth.

William Taylor

One key period came in 1980 after the Court of Appeals asked the parties to explore the possibility of an voluntary inter-district remedy, and Judge Meredith entered an order to begin the process. The State resisted the process at every turn.

William Taylor

In March 1981, Judge Hungate, who had taken over the case, found that, "The State as a matter of deliberate policy decided to defy the authority of this court," and that the State had resorted to "extraordinary machinations in an effort to resist dismantling the dual system." These findings came after a lengthy recitation of numerous occasions on which the State had sought to delay and avoid court orders. The court considered holding the State in contempt, but decided to make one more effort to issue an order that might result in State compliance. In doing so, it said, "To grant the State defendants a stay would permit the State to escape triumphantly from the consequences of its defiance of Judge Meredith's court orders. The Court would be doing much less than its duty if State defendants were not held accountable for their actions," and I have included this court order as an appendix to my testimony.

William Taylor

The resistance of John Ashcroft became quite personal. As I detail in my testimony, in July 1981, the court appointed Susan Uchitelle as an employee of the State Department of Education as interim director of the Committee charged with developing a voluntary plan. The State objected strenuously to Ms. Uchitelle's appointment and filed formal objections with the court which were later rejected.

William Taylor

At the same time, the State sought to pressure Ms. Uchitelle to resign from the assignment. A contemporaneous law kept by Ms. Uchitelle reveals that a State education official relayed to her a threat from Mr. Ashcroft that if she chose to remain in the job, she would have to resign her State job, and if she did, she would "never receive another State appointment to a job from him," delaying tactics. It did not cease. Indeed, after our settlement with 22 suburban districts was reached and the State appealed again and again and continued to resist the orders, even after its appeals were exhausted, the district court noted that the State had delayed implementation of a voluntary plan through opposition and repeated appeals and concluded that were it not for the State and its feckless appeals, perhaps none of us would be here at this time.

William Taylor

I am almost done.

William Taylor

These tactics continued through Mr. Ashcroft's tenure as Governor. Judge Stephen Limbaugh, a Reagan appointee to the bench, referred to the conduct by the State that included factual inaccuracies, statistical distortions, and insipid remarks -- that is a quote -- regarding the Court's handling of the case. He warned the State to desist in filing further motions grounded in rumor and unsubstantiated allegations of wrongdoing and added that the State had even resorted to veil threats toward the court to try to thwart implementation of the remedy.

Patrick Leahy

-- Contrary to Mr. Ashcroft's claim of review to follow court orders, we have a --

William Taylor

In summary --

Patrick Leahy

Thank you, Mr. Taylor.

William Taylor

Patrick Leahy

Mr. Taylor, everybody has had exactly the same amount of time as this point, both for and against Senator Ashcroft.

Patrick Leahy

I appreciate the invitation of this Committee to submit written testimony concerning the nomination of John Ashcroft to be Attorney General of the United States. I have been a civil rights lawyer for 45 years, beginning as a staff attorney for Thurgood Marshall at the NAACP Legal Defense and Education Fund in 1954 and later serving as General Counsel and then Staff Director at the U.S. Commission on Civil Rights in the 1960s.

Patrick Leahy

While I currently serve as Vice Chair of the Leadership Conference on Civil Rights and Acting Chair of the Citizens' Commission on Civil Rights, my testimony today is solely on my own behalf. I am lead counsel for a class of African-American parents and children in a major school case in St. Louis. I have served in that capacity for more than 20 years and for much of that time John Ashcroft was a lawyer and defendant in that case, first as Missouri State Attorney General and later as Governor.

Patrick Leahy

I have thought seriously since Mr. Ashcroft's nomination about whether his conduct in the St. Louis case was simply that of a lawyer vigorously defending the interests of the State or whether some of his actions went over the line of strong advocacy and reflect on his qualifications to serve as Attorney General of the United States. My conclusion is that the latter is the case. I believe that in his tenure as State Attorney General, Mr. Ashcroft used the court system to delay and obstruct the implementation of a desegregation settlement that was agreed to by all major parties except the State. In doing so, Mr. Ashcroft sought to prevent measures that were a major step toward racial reconciliation in an area where there had been much conflict and to thwart a remedy that ultimately proved to be a very important vehicle for educational progress. Worse yet, Mr. Ashcroft sought to exploit fears and misconceptions about desegregation as a means of gaining higher political office, thereby deepening racial divisions in the St. Louis area. Taken together, I believe that these actions raise the most serious questions about whether Mr. Ashcroft is prepared to serve all the people as Attorney General and to enforce the civil rights laws fairly and impartially. I realize these are serious charges, but I am prepared to document them. The Liddell Case -- 1978-1984

Patrick Leahy

The St. Louis school case (Liddeil began in the I 970s with a suit designed to desegregate the city schools. The federal courts ultimately found that both the State and the city school board were responsible for maintaining school segregation for many years following the Supreme Court's landmark decision in Brown v. Board of Education. 347 U.S. 483 (1984), and that they acted in violation of the constitutional rights of the plaintiff school children. Liddell v. Missouri, 731 F.2d 1284, 1302-03 (8th Cir.) (en banc), cert. denied, 469 U.S. 816 (1984). Indeed, the District Court held that the State had previously "mandated school segregation and that it "never took any effective steps to dismantle the dual system it had previously compelled." Therefore, the court concluded that the State was a "primary constitutional wrongdoer with respect to the segregated conditions in the St. Louis schools." Liddell v. Board of Education, 491 F. Supp. 351, 357, 359-60, aff'd 667 F.2d 642 (8th cir.), cert. denied 454 U.S. 1081 (1981). As was his prerogative, Attorney General Ashcroft took appeals to the Eighth Circuit and the Supreme Court and lost.

Patrick Leahy

Mr. Ashcroft's opposition did not stop there. I became involved in the case in the fall of 1980 when I filed an amended complaint on behalf of the plaintiff class and the NAACP seeking to extend the relief to 22 suburban school districts in St. Louis County that had also contributed to segregation. The City Board of Education filed a similar amended complaint. In part, these complaints were a response to a suggestion by the Court of Appeals that the City Board and the State seek the cooperation of suburban districts to develop a voluntary, cooperative plan in which students could choose to transfer between districts to enhance desegregation. When the District Court entered this suggestion as an order to explore the possibilities of interdistrict cooperation, the City Board and the suburbs promptly began to discuss a voluntary plan. But Mr. Ashcroft immediately announced that he would appeal even the provision calling only for a planning process. Mr. Ashcroft asked the Court of Appeals to delay the order while the appeal was being heard. He lost in the Court of Appeals and unsuccessfully sought a stay in the Supreme Court. It was also reported in 1980 by a court-appointed expert that State education officials appeared prepared to help develop a voluntary plan but that they were "forbidden to do anything" because the Attorney General "was running the show" and it was "a legal issue." Deposition of court appointed expert Gary Orfield at 128-134. The St. Louis Post Dispatch concluded that Mr. Ashcroft's actions "nearly wrecked "the initial city suburban meeting efforts. (June 20, 1980.)

Patrick Leahy

These tactics continued through 1981 with the State failing to comply with Court orders for the submission of plans and filing numerous motions for delay in the Court of Appeals. In March of 1981, the District judge issued a blistering order threatening to hold the state in contempt if it failed to submit a voluntary plan in 60 days. Citing the State's "continual delay and failure to comply" the Court said that it could only conclude that "the state has, as a matter of deliberate policy, decided to defy the authority of this Court" St. Louis Post-Dispatch, March 5, 1981. These matters are discussed in more detail in Appendix 1; to my testimony, an account prepared by lawyers at People for the American Way and reviewed by me for accuracy.

Patrick Leahy

One other incident that occurred in 1981 is telling. In July, 1981, the Court appointed Susan Uchitelle, an employee of the Missouri Department of Education, as interim director a coordinating committee to devise a voluntary plan. The State objected strenuously to Ms. Uchitelle's appointment and tiled formal objections with the Court on July 9, 1981 which were later rejected. Contemporaneously, the State sought to exercise pressure on Ms. Uchitelle to resign from this assignment. A contetemporaneous log kept by Ms. Uchitelle reveals that a state education official relayed to her a threat from Mr. Ashcroft that if she chose to remain in the job she would have to resign her state job and if she did that she "would never receive another appointment or job from them." This, in my judgment, is evidence of a gross threat of retaliation by Mr. Ashcroft against a dedicated state employee who only sought to aid the Court and the parties in carrying out a voluntary remedial plan. See Appendix 2 to my testimony. Fortunately, Ms. Uchitelle did not bow to these threats and continued to serve for many years as the coordinator of the voluntary plan, although the State continued to level criticism at her.

Patrick Leahy

Late in 1982, the Court brought the parties together under the supervision of a courtappointed mediator to explore the possibilities of settlement. I believed that we had a strong case, with evidence for example that the State and suburban school districts had maintained segregation by busing black children living in suburban areas into the city to avoid desegregation of suburban schools. But I and my colleagues actively sought settlement, realizing the value of prompt relief and avoidance of many years of contentious litigation. The 22 suburban districts agreed on the value of a settlement as well and many showed real courage in doing so because they faced the fears and opposition of many of their constituents. And so, after tough negotiations we reached an agreement that allowed volunteering African- American students from the city to enroll in any of the 22 districts until the black enrollment of the district reached 25% and volunteering white students in the 22 districts to enroll in city magnet schools. The agreement also provided for improvements in the educational program in the low performing city schools that would continue to remain racially isolated.

Patrick Leahy

All of the parties agreed to the settlement except the State of Missouri. (Under the Reagan Administration, the Justice Department, which was an intervening party, took no position at that point although it was later persuaded by Mr. Ashcroft who made repeated visits to Washington to join in his appeal). The Assistant Attorney General who represented the State in the negotiations had taken a positive approach but Mr. Ashcroft's decision was to oppose the settlement. Mr. Ashcroft opposed all aspects of the settlement in the District Court and then appealed the decision to the Court of Appeals which, sitting en bane, rejected his positions almost in their entirety. Liddell, supra, 731 F.2d 1294. He then unsuccessfully sought in 1984 review in the Supreme Court. It is important to note, that Mr. Ashcroft opposed not only desegregation but the portions of the agreement calling for improvements in black schools, consistent with the Supreme Court's unanimous decision in Milken v. Bradley, 433 U.S. 267 (1978). In an undated press release, issued at the time he was petitioning the Supreme Court, Ashcroft said "the requirements for widespread improvements throughout the city school system. . .are simply a shopping list compiled by the plaintiffs and the City Board".

Patrick Leahy

Even after his appeals had been rejected. Mr. Ashcroft continued to obstruct implementation of the settlement. His tactics led the District judge to conclude at the end of 1984: "If it were not for the State of Missouri and its feckless appeals, perhaps none of us would be here at this time. Further litigation to compel the State to meet its responsibilities was unquestionably necessary. The compromise settlement was made possible through the cooperation of all parties but the State, which, through opposition and repeated appeals, has delayed implementation of a remedial plan designed to remove the last remaining vestiges of school segregation for which the State, through its constitution and statutes, remains responsible. It has continued to litigate what the other parties sought to settle, thereby increasing litigation costs for which it now seeks to avoid responsibility." Order H(3550) at 17, 25. December 28, 1984 Relevant portions of the Order are attached as Exhibit 3 to my testimony. This, as previously indicated, was hardly the first time the Court found it necessary to ruhuke the State and its Attorney General. Earlier the Court had found that "the State has, as a matter of deliberate policy, decided to defy the authority of [this] Court" and that the State had resorted to "extraordinary machinations" in an effort to resist dismantling the dual system. Order H(11) 81 at 6. The 1984 Gubernatorial Campaign

Patrick Leahy

In 1984 as he was fighting the voluntary settlement tooth and nail in the courts, Mr. Ashcroft was running in the Republican primary for governor. He was pitted against Gene McNary, the County Executive of St. Louis County, who was also an adamant opponent of desegregation. Toward the end of a close campaign in which the candidates sought to outdo each other in their opposition to desegregation, Mr. Ashcroft ran a television ad, dubbed the McFlipFlop commercial, in which he accused McNary of being soft on desegregation for having said some time earlier that he would not object to the desegregation plan if all of the suburban school districts accepted it.

Patrick Leahy

That commercial was "given a major part of the credit for Mr. Ashcroft's convincing victory." St. Louis Post-Dispatch, August 12, 1984, p. 1 B. Whatever its effectiveness, the ad and other statements by Mr. Ashcroft were calculated to inflame the passions of people who feared or resisted desegregation. In the words of the St. Louis Post Dispatch, Mr. Ashcroft and his opponent were "exploiting and encouraging the worst racist sentiments that exist in the state." March 11, 1984. See also Exhibit 1. In his December 28 Order Judge Hungate, responding to State charges about the work of one group of plaintiffs, said "with equal validity, one might argue that counsel for the State voluntarily rode Liddell's bus to political prominence." H(3554) 84 at 16. Liddell: 1985-1992

Patrick Leahy

In the years that John Ashcroft served as governor, the State continued its slash and burn tactics in court. In 1989 and 1990, Judge Steven Limbaugh, who had succeeded Judge Hungate and who ordinarily was very mild in his manner and language, was moved to make the following statements:

Patrick Leahy

"It appears to this Court that the extremely antagonistic nature of recent filings indicates that the counsel for the State is ignoring the real objectives of this case -- a better education for city students to personally embark on a litigious pursuit of righteousness." Order L (3039) 90 at 3. The States Motion was "the latest in a series of motions which are not only unnecessarily adversarial in nature but indicate a lack of communication between counsel and the State's non-legal personnel involved in this case. The motion is meddlesome and intrudes upon the cooperative efforts of the educational personnel of both parties." Order L (3039)90 at 2. The State's litigation tactics were only serving "to waste the Court's time and taxpayers' money." Id. at 4. The State had resorted to "factual inaccuracies, statistical distortions and insipid remarks regarding the Court's handling of this case." Order L (2311) 89 at 2. Judge Limbaugh warned the State to "desist in filing further motions grounded in rumor and unsubstantiated allegations of wrongdoing." He added that the State in recent years has even resorted to "veiled threats" towards the Court in its effort to thwart implementation of the remedy. Id. at 3-4. I of course have no way of knowing the extent of Mr. Ashcroft's personal participation in the actions that roused the Court's ire. I do know that they represented a continuation of his policies as Attorney General and that he did nothing to repudiate them as Governor.

Patrick Leahy

In 1995, Governor Mel Carnahan who was then the most prominent defendant in the case, offered this comment on the history of the litigation:

Patrick Leahy

"The reason Missouri has been unsuccessful in ending the desegregation cases is that the State has never made a credible attempt to address the concerns of the Federal courts. The state has always forcefully and consistently objected to Plaintiffs' demands. However, it has not; offered potential solutions to the desegregation problem. . ." St. Loads Post Dispatch, March

Patrick Leahy

at 3B. Liddell: The Aftermath

Patrick Leahy

In 1991, the State began filing a series of motions seeking a declaration of unitary status and a cessation of its financial obligations That issue came to trial in 1996. At the trial it became clear that many of the aspects of the remedy had been very successful. For example, it was revealed that African-American students (the great majority of them poor) who attended schools in the suburban districts graduated high school and went on to college at rates far in excess of students in St. Louis who had very high dropout rates and also in excess of African-American students in urban districts around the nation In addition, the State's own expert, David Armor, praised the academic progress that had been made in city magnet schools.

Patrick Leahy

After the trial Judge George Gunn appointed William Danforth, recently retired chancellor of Washington University in St. Louis to be settlement coordinator. Dr. Danforth, who had done his own investigation of the effectiveness of the remedy, concluded that the best solution would be to find a way to continue the remedy by replacing court-ordered funds with a legislative appropriation, thus enabling the court to withdraw from active supervision of the case. I worked with Dr. Danforth to lobby the Missouri legislature, and with Governor Carahan's active assistance, we were able to secure bipartisan action by the legislature to appropriate funds sufficient for the remedy to continue into the indefinite future. This time, the Attorney General agreed to a new settlement based on the legislature's action . In 1999, the citizens of St. Louis did their part by agreeing to a tax increase to help finance the settlement. A majority of voters in every ward, black and white, voted for the increase.

Patrick Leahy

The actions of the State legislature and the citizens of St.Louis are quite remarkable, perhaps as remarkable as the 1983 settlement agreement.

Patrick Leahy

When one looks back on the twenty year history of the case, it becomes apparent that this was not a partisan matter. Many Republicans as well as Democrats understood the wrong that had to be righted and the need to find ways to provide equal educational opportunity for African-American students. Dr. William Danforth made a great contribution and former Senator John Danforth supported the settlement at various stages of the litigation. Judge Steven Limbaugh and Judge George Gunn, both Republican appointees of President Reagan, moved the remedy forward in the face of continuing opposition from the State. In contrast, John Ashcroft fought every aspect of the remedy in the ways I have described and never offered to the courts any alternative program to advance educational progress and improve race relations. Nor in the years he has been senator has Mr. Ashcroft ever publicly reconsidered his positions or offered any support to the widely acclaimed 1999 agreement. Conclusion

Patrick Leahy

After reviewing the actions of John Ashcroft in the St. Louis case, I have concluded that they are strongly reminiscent of the actions of public officials during the era of massive resistance in the 1950s and 60s in the South. That is a period I witnessed as a civil rights lawyer and later as General Counsel and Staff Director of the U.S. Civil Rights Commission and most officials North and South now agree that it was a shameful period in American history. In some ways I think that the actions of John Ashcroft in massively resisting a remedy in the St. Louis case and using race issues for political advantage were worse. By 1980, there could be no valid claim that school desegregation was the product of imperial federal courts. The Civil Rights Act of 1964 had made equal opportunity and desegregation national policy and the era of obstruction and resistance had largely passed.

Patrick Leahy

Nor as I have mentioned has John Ashcroft ever by word or deed provided any evidence that his views about these matters of equal opportunity have changed. To the contrary, in his recent embrace of racially extremist groups there is evidence of the continuity of his views.

Patrick Leahy

Mr. Chairman I state the obvious when I say that it is not easy for me or for members of the Senate to seek action that will thwart the hopes and ambitions of a person for high office. But that is a necessary product of our constitutional system of "advise and consent."

Patrick Leahy

During my long career in civil rights I have been privileged to witness a great deal of progress in the status of African-Americans and other historically discriminated-against people. Unfortunately, however there are constant reminders that race is still the problem that plagues the American conscience. Decisions about how and whether we will address continuing problems of discrimination are made in many ways -- including the nomination of people to the offices charged with making civil rights policy and enforcing civil rights laws. Today, the rights of millions of Americans to be free of hate crimes, not to be racially profiled, to better educational opportunity, to housing choice, to equal opportunity in the workplace are at stake. Given his extensive record, there is no basis for believing that these rights would be effectively protected during his tenure as Attorney General. I do not think that confirmation-day conversions or pledges to enforce the law can counter the long history of opposition to civil rights that has been documented. I fear that installation of John Ashcroft as Attorney General would send a message of racial divisiveness throughout the nation, would jeopardize the rights of citizens and would set us back years in our continuing quest for equality of opportunity for all.

Patrick Leahy

III. ASHCROFT'S STATE RECORD: REVEALING HIS STRIDENT RESISTANCE TO THE

Patrick Leahy

ial Desegregation of Missouri Schools

Patrick Leahy

Both as Attorney General and Governor of Missouri, John Ashcroft was well known as an opponent of school desegregation programs in St. Louis and Kansas City. Differences of legal and political opinion existed then and now on this subject, and such differences alone would not constitute significant grounds for opposing Ashcroft's nomination. But Ashcroft's conduct in Missouri went far beyond such differences of opinion. Ashcroft spent years and significant state resources in efforts to stymie voluntary St. Louis desegregation plans designed to enable city and suburban students and families to chose whether to participate on a complexly voluntary basis. He repeatedly tried to delay and reverse court orders, and his arguments were rejected in three appeals to the Supreme Court. He was threatened with contempt of court and was criticized and rebuked by federal judges. His conduct was likened to the Southern "massive resistance" that had followed the Supreme Court's decision more than two decades earlier in Brown v. Board of Education. Observers chastised him for exploiting his opposition to desegregation in his campaign for governor through rhetoric widely perceived as racially divisive. Even supporters and fellow Republicans criticized his tactics. And he failed completely to undertake meaningful efforts to solve the problems of state-created segregation, to resolve the litigation through negotiations or settlement, or to provide constructive leadership on the issue, all important qualities for a future U.S. Attorney General.

Patrick Leahy

1. An Attorney General's crusade to obstruct voluntary desegregaton. Ashcroft's significant involvement with desegregation in St. Louis began around 1980, for in that year both the federal court of appeals for the Eighth Circuit and the federal district court in St. Louis found both the State of Missouri an the City school board liable for continued segregation of the public schools. The State's liability was based primarily on state legal and constitutional provisions dating back to 1865, which mandated separate schools for blacks and whites (provisions not completely repealed until 1976); the mandatory transfer of black suburban students into segregated city schools to enforce segregation; and the state's failure to take effective action to dismantle the racially dual school system and its effects. See Adams v. United States, 620 F.2d 1277, 1280-81 (8th Cir.), cert. denied, 449 U.S. 826 (1980). As the district court recognized that year, " the State defendants stand before this Court as primary constitutional wrongdoers who have abdicated their affirmative remedial duty." Liddell v. Board of Education of City of St. Louis, 491 F. Supp. 351, 359 (E.D. Mo. 1980), affd, 667 F.2d 643 (8th Cir.), cert denied, 454 U.S. 1081, 1091 (1981).

Patrick Leahy

As part of its May 1980 order, the district court ordered desegregation in St. Louis to begin that fall. One provisions of the court's order, as specifically suggested by the court of appeals, called on the City Board and the State to seek the Cooperation of suburban districts to enhance school desegregation by developing a "voluntary, cooperative plan" in which city and suburban students could choose to transfer between the city and the suburbs. 491 F. Supp. at 353.

Patrick Leahy

The City Board and the suburbs promptly began to discuss such a voluntary plan. On behalf of the State, however, Ashcroft immediately announced he would appeal, seeking to overturn event the provision that called only for planning of a voluntary city-suburb program. The St. Louis Post-Dispatch (June 20, 1980). Despite the opposition of the City Board and the United States, which had intervened in the case on the side of the plaintiffs, Ashcroft asked the court of appeals to delay the order while the appeal was being heard. When the court of appeals turned Ashcroft down in August, he asked the Supreme Court fro another delay. Ironically, he did not ask for a delay in mandatory student transfers within St. Louis, but did try to further postpone work on a voluntary city-suburb plan. The Court denied Ashcroft's request. years later, an expert witness involved in the case testified that the City Board and the state had enjoyed a brief period of cooperation in 1980, but that after the May 1980 order, Ashcroft told state education officials "not to talk with anyone." (St. Louis Post-Dispatch March 23, 1996).

Patrick Leahy

Although the district court's order had directed the parties to work out a voluntary plan to begin in 1980-81, delays continued throughout the school year. After the state finally submitted an initial plan, the judge rejected it as lacking in specifics and called on the state to submit another, but the state did not do so. The NAACP and the City Board then filed a claim for mandatory interdistrict relief, based in part on the failure of the state to act. Ashcroft responded not only by opposing any such mandatory relief, but by declaring that voluntary efforts were now impossible and by asking for another delay in submitting a voluntary plan. The St. Louis Post- Dispatch excoriated Ashcroft:

Patrick Leahy

The logic of these arguments is mystifying. . .Even now, acquiescence in a voluntary program might dispense with the need for one ordered by court. . .As matters stand, a state that for more than a century required its schools to segregate the races now presents itself as unable to help them desegregate, even on a voluntary basis. . .Judge Meredith had asked the state to take the lead in developing suggestions for a voluntary program. Take the lead? The attorney general has put state leadership in reverse. (St. Louis Post-Dispatch, Feb. 1 and Feb. 4, 1981.) Throughout this period, Ashcroft continually sought to thwart desegregation by failing to comply with orders and deadlines for submission of plans and seeking delays from the appellate court. Finally, in March, 1981, the district judge entered a blistering order threatening to hold the state in contempt if it failed to submit a voluntary plan within 60 days. The judge criticized the state's "continual delay and failure to comply" with the court's orders. Associated Press, March 5, 1981. "The court can draw only one conclusion," the judge explained, "the state has, as a matter of deliberate policy, decided to defy the authority of this court." St. Louis Post-Dispatch (March 5, 1981).

Patrick Leahy

Although Ashcroft claimed that the state was working on a voluntary plan, he again asked the appellate court and then the Supreme Court for a delay, as he also sought to have the Supreme Court overturn an appellate court decision fully affirming the district court's May 1980 order. All these requests were denied.

Patrick Leahy

As 1981 continued, Ashcroft persisted in his efforts to disrupt voluntary desegregation efforts. For example, when the court named Susan Uchitelle, a state education official, to oversee voluntary desegregation efforts, which could presumable have helped secure state cooperation, Ashcroft demanded her removal. The Post-Dispatch noted that the state could have felt "honored by the use of Ms. Uchitelle as a leader" in the voluntary desegregation effort, but "[i]nstead, Missouri's attorney general acts as if segregation is here to stay." St. Louis Post-Dispatch (July 14, 1981). Around the same time, the Reagan Administration Justice Department submitted a plan to encourage voluntary desegregation by offering fee state college tuition to students who agreed to city-suburban transfers. The City Board agreed, several suburban districts and a state university official praised the idea, and the Reagan Administration received praise for suggesting a plan to promote voluntary desegregation consistent with its opposition to mandatory busing. Nevertheless, Ashcroft balked at the suggestion, basing his opposition on cost and on claims that the plan would result in the transfer of "the most motivated" black city students to the suburbs. Newweek (May 18, 1991).

Patrick Leahy

The federal proposal also produced another result for Ashcroft. He began to hold talks with Reagan Administration officials, which Ashcroft reportedly tried to keep secret, about the St. Louis and Kansas City cases. It was soon reported that Ashcroft was trying to convince Reagan Justice Department officials to switch sides and support the state in its latest effort to get the Supreme Court to reverse lower court rulings in the St. Louis Case. In the short run, those efforts failed, as the Justice Department suggested that the Court should not accept Ashcroft's request. When the Court again rejected Ashcroft's appeal, he remained defiant, proclaiming that "this fight is a long way from being finished." UPI (Nov. 30, 1981) The Post-Dispatch noted that legal contentions can be pursued on and on," but urged "the state of Missouri and its attorney general" to "begin working for desegregation instead of obstructing it." St. Louis Post-Dispatch (Dec. 1, 1981).

Patrick Leahy

The new year of 1982, however, saw little change in Ashcroft's attitudes and tactics. In January, speaking to a suburban rotary club, he attached desegregation and declared that busing is "unconstitutional discrimination against all groups." St. Louis Post- Dispatch (January 13. 1982). He lost another appeal in which he contested again the state's liability and protested any voluntary city- suburb plan. The appellate court's opinion pointedly urged the state to participate in the desegregation budget process "so that the annual budget can be determined on a cooperative rather than an adversary basis." Liddel, supra 677 F.2d 626, 628 8th Cir.), cert. denied2, 459 U.S. 877 (1982). For the second year in a row, the Supreme Court denied Ashcroft's request for a full review. One news article noted that Ashcroft was "making himself a familiar advocate before the Supreme Court, most often as the antagonist of civil rights interests." St. Louis Post-Dispatch (Nov. 7, 1982). The article quoted civil rights lawyers who criticized Ashcroft's "zealous, litigate-to the-end" approach, and noted that his frequent appeals to the Court were discouraging suburban districts from joining the voluntary city- suburb plan. Although noting that the Court's acceptance of a number of (non-desegregation related) appeals demonstrated that Ashcroft's office was certainly not being frivolous, the article quoted one former assistant attorney general as highly critical of the "litigate-to the- end" approach even in innocuous suits, comparing Ashcroft unfavorably to his predecessor, John Danforth.

Patrick Leahy

The article noted Ashcroft's harsh and racially divisive rhetoric in court papers. For example, in his latest appeal to the Supreme Court, the article explained, Ashcroft call the lower court action "grossly unjust" and complained that if the defendant was "an individual, especially a minority, neither this court nor the court of appeals would have permitted" the procedures used. Id. Critics likened Ashcroft's handling of the St. Louis case "to the massive resistance that some Southern politicians mounted in the 1950's and 1960s to oppose desegregation." One attorney who asked not to be named stated that "[a] lot of what he does is to delay and harass" and that he "appeals everything to the Supreme Court." Id. School desegregation expert Dr. Gary Orfield was reported as testifying in court that the state's arguments reminded him of the defense of segregation in Brown v. Board of Education itself. Dr. Orfield stated that he had been reading the Brown transcript "where the attorney representing the government of South Carolina argued that it would be educationally better to leave the black children segregated." He explained that "I thought I wouldn't hear state government producing that argument again" but was "very disappointed to hear it" in the St. Louise case. Id.

Patrick Leahy

In 1983, Ashcroft's efforts to obstruct voluntary city-suburban desegregation reached a new level. Shortly before the trial of the segregation claims against the suburban districts was to begin, the City Board, the NAACP, and the suburban districts announced a tentative settlement. The agreement called for significant expansion on the city- suburb voluntary desegregation program, as well as for additional efforts to improve education in city schools to help remedy the educational vestiges of segregation. Although the State department of education had reportedly made positive comments about the plan, Ashcroft and the City of St. Louis promptly opposed it. Ashcroft criticized the costs that would be imposed on the state, and asserted that mandatory transfers could occur in the future ifs the plan failed. He had critical letters had-delivered to each of the suburban districts. A source close to the negotiations reported that Ashcroft was not "telling the whole story" and was "trying to scuttle this agreement." St. Louis Post-Dispatch (April 2, 1983).

Patrick Leahy

One of Ashcroft's major objections to the plan -- his claim concerning its costs -- was criticized not only by the Post-Dispatch, but also by St. Louis Archbishop John I. May. The Archbishop urged citizens to ignore the "hysterical figures" and to emphasize the positive "in place of the dirges we have been hearing from Jefferson City," the state capital. UPI (July 25, 1983). The Archbishop and 10 other prominent religious and public figures endorsed the plan. Although acknowledging Ashcroft's proper role in defending the state, then Senator and former state Attorney General John Danforth split with Ashcroft and announced his support for the plan. Suburban districts rejected Ashcroft's race-tinged claim that the plan would "subordinate education to other objectives" and his insistence that he would have preferred to litigate the case. In July 1983, despite Ashcroft's three- year efforts, the City board and all 23 suburban districts approved the plan, and the federal court accepted it.

Patrick Leahy

Ashcroft and the City announced they would appeal and sought a district court order to delay the plan. Even though the school year had already begun, Ashcroft asked the court of appeals-to stay the plan -- and effectively order thousands of students uprooted from the schools they had begun -- in September. Although the court of appeals did temporarily limit the plan to students who had already transferred and did prevent any possible court action to change city tax rates, the appellate court firmly rejected most of the stay order that Ashcroft requested. As a result of such a stay order, the court explained, the "lives of thousands of students and teachers would be disrupted before this court had decided the matter on its merits." AP (Sept. 13, 1983).

Patrick Leahy

In early 1984, the last year of his term as Attorney General, Ashcroft announced his intention to run for governor. In his announcement speech, he pledged to continue to fight "tooth and nail" to oppose the "just plain wrong" St. Louis desegregation orders, vowing that "this battle is not over." UPI (Jan. 4, 1984). Ashcroft soon received another court setback, as the full 8th Circuit Court of Appeals voted 7 to 2 to uphold most of the desegregation plan. The court painstakingly noted that on three separate occasions it had already rejected the state's arguments against the use of voluntary interdistrict transfers and that each time the Supreme Court had denied review, Liddel, supra, 731 F.2d 1294, 1302-05 (8th Cir.) (en banc), cert. denied, 469 U.S. 816 (1984). The appeals court nevertheless considered Ashcroft's arguments for the fourth time, and again rejected them Id. at 1305-1309.

Patrick Leahy

The court did agree with Ashcroft that the state should not pay for voluntary integrative transfers of black suburban students from predominantly black to predominantly white suburbs, since that would not help promote desegregation in the city Even though that part of the order affected only 311 students, Ashcroft moved immediately to cut off payments for those students, prompting fears that they would be forced to return to their former schools with only three months left in the school year. critics called Ashcroft's actions a "cruel way to deal with students who had placed their educational hopes in their new schools." (St. Louis Post-Dispatch Feb. 19, 1984). A split court of appeals avoided such an outcome by ordering the state to continue the payments temporarily, subject to a later good faith effort among the suburbs and the state to allocate the costs. Ashcroft called the decisions a "gross miscarriage of justice" and predicted it would help his case in the Supreme Court. (St. Louis Post-Dispatch March 6, 1984).

Patrick Leahy

Once again, Ashcroft sought review of the court of appeals decision in the Supreme Court, with the opposition this time joined by the League of Women Voters in the St. Louis area. Ashcroft did obtain a new ally, however, convincing the Reagan Justice Department to complete its reversal of position and join his efforts in the Court, as a result of what Ashcroft described as his " arduous effort" at persuasion. (St. Louis Post-Dispatch July 24, 1984). Nevertheless, the high Court turned Ashcroft down for a third consecutive year, prompting Ashcroft to claim that the Court had "wrongfully sanctioned the judiciary's usurpation of legislative authority" and to pledge to keep fighting. (St. Louis Post-Dispatch Oct. 3, 1984). The Post-Dispatch noted the progress made under the plan, with over 5,500 students participating in totally voluntary desegregation transfers plus better education in only its second year, all of "[d]espite the attorney general's efforts." (St. Louis Post-Dispatch Oct. 3, 1984).

Patrick Leahy

In the meantime, Ashcroft was busily using the desegregation issue is his gubernational campaign. During the Republican primary campaign, Ashcroft and his primary opponent were "trying to outdo each other as the most outspoken enemy of school integration in St. Louis," and "exploring and encouraging the worst racist sentiments that exist in the state." (St. Louis Post-Dispatch March 11, 1984). Ashcroft publicly wore the threatened federal contempt citation against him as a badge of honor, arguing that it showed he had "done everything in my power legally" to fight the desegregation plan. (UPI, Feb. 12, 1984). Ashcroft criticized the St. Louis plan as "grandiose programs just to enhance a few students," ignoring the thousands who were being helped. (Jefferson City Post Oct. 5, 1984). In one debate, he called the plan an "outrage against human decency" and an "outrage against the children of this state." (St Louis Post-Dispatch June 15, 1984). At one point, he appeared to compare desegregation to drug use, staring that the people who are against the desegregation plan also pay for it "[b]ut some people sell pot and think it should be legalized, and we fight against them with their tax money," and "I don't have any problem with that." (Oakombia Missourian July 18, 1983). Ashcroft's media consultant described an ad attacking alleged waffling by his primary opponent on desegregation as Ashcroft's "silver bullet." (St. Louis Post-Dispatch Dec. 30, 1984).

Patrick Leahy

Newspapers on both sides of the desegregation issue were highly critical of Ashcroft, along with his primary opponent, for divisive rhetoric. The Daily Dunklin Democrat, which had supported Ashcroft's desegregation appeals, nevertheless criticized the Republican primary campaign as "reminiscent of an Alabama primary in the 1950s." (St. Louis Post-Dispatch Oct. 26, 1984). The African-American newspaper (St, Louis Post-Dispatch Feb. 29, 1984).

Patrick Leahy

2. Ashcroft continues to battle desegregation as governor. Shortly after he was elected Governor, Ashcroft received yet another stinging rebuke for his handling of the St. Louis case -- this time, from the federal court. Ashcroft's office had vigorously opposed a request for civil rights attorneys' fees to be paid by the state to the attorney's who had successfully litigated against him. (In fact, he had previously asked President Reagan to support legislation to limit state liability for civil rights attorneys' fees, using St. Louis as an example. (St. Louis Post-Dispatch Nov 20, 1983.) Ashcroft argued that the size to the bill, over $3 million, was excessive and that much of the plaintiffs' attorneys' efforts were not necessary. Although the judge did substantially reduce the size of the award, he unequivocally rejected Ashcroft's claim and found that the work was "unquestionably necessary" because of the conduct of the state and its attorney general. The judge explain that the state had contributed significantly to the size of the award by its "opposition and repeated appeals." Ashcroft and the state had continued to "litigate what the other parties sought to settle, thereby increasing litigation costs for which it now seeks to avoid responsibility. "In fact, the judge stated, "[i]f it were not for the state of Missouri and its feckless appeals, perhaps none of us would be here today." (St. Louis Post-Dispatch, Dec. 30, 1983, Jan. 3, 1985) (emphasis added).

Patrick Leahy

Aschroft also argued that the attorneys for the original plaintiffs had ridden the "coattails" of other parties to seek unwarranted attorneys' fees. The court rejected this argument as well, with words aimed clearly at Ashcroft. "With equal validity," he explained, "one might argue that counsel for the state voluntarily rode Liddell's bus to political prominence." (Id.) Although the size of the award was reduced on appeal because the court determined that the plaintiffs were only 75% successful, the appellate court otherwise affirmed the trail court's decision. Liddell, supra, No. 85-1179 (8th Cir. July 9, 1985).

Patrick Leahy

After he assumed the governor's office, of course, Ascroft's direct involvement in the St. Louis case diminished. Nonetheless, he continued to urge vigorous opposition to the plan and to criticize the federal court rulings, particularly in election year 1988. Ironically, at a 1989 education conference in Washington, Ashcroft publicly supported the idea of public school choice in Missouri. The director of the St. Louis voluntary interdistrict desegregation choice program, whom Ashcroft had attempted to remove years earlier, responded in a way that aptly summarizes Ashcroft's record and the accomplishment that he tried to thwart:

Patrick Leahy

For nine years, Gov. John Ascroft has been fighting the voluntary choice plan in St. Louis and St. Louis County. But now the light suddenly dawns. At the president's education summit, Ashcroft announces he wants to offer Missouri school children the right to school choice. Where have you been, governor? Without your help -- indeed over your vehement opposition -- St. Louis has had school choice. In fact, St. Louis has the largest and most successful school choice program in the country. To date, more than 22,000 students are making school choices, both within the city system with its magnet schools and among 16 suburban districts. Ashcroft now says school choice could lead to more motivated students and higher achievement. He is right! We are finding the longer school choice students are in the program, the better they perform. All area schools can attest to improved curricula as a result of our voluntary school choice program. But school choice does not just happen. It requires equitable access that will not upset racial balance. It requires available transportation so that all students will have the right to choice. It requires funds to improve urban districts. (St. Louis Post-Dispatch Oct. 8, 1989). Gov. Ashcroft opposed all of the see and other features of the St. Louis plan, a situation that changed under his successor. Governor Mel Carnahan spent part of his first day in office discussing how to settle or end both the St. Louis and the Kansas City desegregation lawsuits. The settlement reached by the State and all other parties in early 1999 won widespread acclaim. St. Louis Post-Dispat (Jan. 7, 1999).

Patrick Leahy

Ashcroft's direct involvement in the Kansas city case was less significant than in St. Louis because most of the key court proceedings and the resulting controversial remedies in that case occurred at the end of or after this term as Attorney General Ashcroft opposed any state liability in that case as well, a position rejected by the district court in September of 1984. As governor, Ashcroft continued to direct the attorney general to appeal orders calling for significant expenditures by the state, and he received much more political and legal support for his position, up to and including a 1995 Supreme Court decision in the case that he praised as a Senator.

Patrick Leahy

Nevertheless, Ashcroft came under significant criticism, even from supporters and fellow Republicans, for his "continual harping against" desegregation in Kansas City and his failure to provide effective leadership and offer alternatives to remedy problems the state had helped cause. (Kansas City Times, Oct. 25, 1988). The president of the Kansas City board lamented in 1987 Ashcroft's earlier failure to "offer viable alternatives when he had a chance to do so." (Kansas City Star Nov. 10, 1987). A Republican state legislator from the area explained that she was "very disturbed that once the judge handed down his findings, the state was not more pro-active in finding a solution." She stated that contacts with Ashcroft's office on the subject were "not productive" because he did not appear to have a "philosophy that allows for different points of view." (St. Louis Post-Dispatch Jan. 10, 1993). A former St. Louis school board member suggested that Ashcroft was partly to blame for increasing expenditures, noting that "you can't help but wonder how soon this would've ended if (the governor) hadn't been so concerned with fighting this and more concerned with finding a resolution." (St. Louis Post- Dispatch Jan. 3, 1993). In short, the qualities displayed by Ashcroft in school desegregation controversies in Missouri, particularly in St. Louis, are not the qualities America has a right to expect from its Attorney General.

Patrick Leahy

Educational Consultant St. Louis, MO 63105 January 12, 2001 Mr. William Taylor Attorney at Law 2000 M Street, NW, 400 Washington, DC 20036 Dear Mr. Taylor,

Patrick Leahy

In response to your inquiry, I am forwarding to you the log I kept during the beginning days of the initiation of the St. Louis School Desegregation case in 1981. My contact at the State was Mr. William Wasson, the Deputy Commissioner of Elementary and Secondary Education for the State of Missouri. This information details the objections of State officials to my Court appointed position. Sincerely yours, Susan Uchitelle July 8, 1981 At 8:45 a.m. I received a call from Paul Rava asking me what school district or districts from the County would take the first step. Kirkwood and Ferguson are possibilities.

Patrick Leahy

Wish the Judge had given greater specificity. He wants me to get commitments from some districts that will stand up. It won't totally solve the St. Louis problem, and they know it. They would be willing to put on ice for one year any litigation to those districts who are willing to participate. He would see if this could be worked out. He indicated that they would be willing to do so. Wants actively with anyone who is cooperating with us in a dimension that is mutually satisfactory. We talked for 15 minutes.

Patrick Leahy

At 9:30 a.m. I went to see the law clerk in the Judge's office. I explained the difficult State situation.

Patrick Leahy

I spent the afternoon in St. Louis at the Counselling and Recruiting Center finding out procedures.

Patrick Leahy

At 3:20 p.m. Earl Hobbs, Clayton Superintendent, called. Clayton is preparing a response to the Court. They intend to cooperate on their own terms and will design a plan to present to the Judge by July 22, 1981.

Patrick Leahy

At 5:00 p.m. Bill Wasson from State called to tell me that the State did not want me to take the job, that there was a conflict of interest and that the State (Attorney General and Gov. Bond) had mailed a motion to the Judge requesting a release (for me to vacate) from the job. July 9, 1981 I talked with Bill Wasson and Commissioner Mallory early this morning. They did not want me to resign from the Department of Elementary & Secondary Education. They suggested that I not do anything, at least until the Judge rules on the motion to have me vacated filed by the Attorney General. The commissioner felt very strongly that I was needed in my own capacity as Supervisor of Instruction, and he requested that I hold on until next week. I should work on the implementation and do what I had to do.

Patrick Leahy

I called some school districts to let them know that I was available to help them in any way. July 15, 1981 Bob Moody of the Webster Groves Board of Education called wanting information about the Plan in some way.

Patrick Leahy

Rev. Ben Martin called to say that some board members had called him wanting information and don't know how to get it.

Patrick Leahy

I talked with Normandy to express my interest and concern in their position. Also talked with Lindbergh, Maplewood-Richmond Heights and Ferguson-Florissant. (I found out there was a Cooperating School Districts meeting with superintendents this morning.) I simply talked with these districts to get a sense of their own responses to the desegregation issue.

Patrick Leahy

At 10:20 a.m. I talked with Gary Wright at Lindbergh. They had a very late meeting the night before and upon advice of counsel they decided to decline to participate in the Plan because there is no provision to drop any litigation.

Patrick Leahy

At 11:45 a.m. Bill Wasson called me. He said that the State wanted me to come out in support of Ashcroft's motion to have me vacated from the job. They (State) would tolerate no action on my part -- public meetings, school board attendance, any efforts to talk about the Plan. Ashcroft was about to send a letter to me stating strongly his position and insisting I resign from the Court or resign from the State, and if I resign from the State, I would never receive another appointment or job from them. I can't preach and still be a state employee. He said they would not act on my request for a leave of absence -- they did not want to grant one. I told him it would need time to consider. The afternoon was spent working out legal alternatives with Skrainka and Sandweiss. I cancelled my appointment with Pattonville School District and also cancelled the appointment with Hope United Presbyterian Church were an informational meeting was [Note: material submitted ended in mid-sentence.]

Patrick Leahy

January 17, 2001 Addendum to the testimony of William L. Taylor

Patrick Leahy

In my testimony, I chronicle the history of the St. Louis school case which is a remarkable story of plaintiffs and local school officials voluntarily agreeing to remedy decades of discrimination by the State of Missouri and local school boards with a plan for voluntary desegregation. I will not read that testimony today, but I ask that it be made a part of the record of these hearings.

Patrick Leahy

What I would like to focus on is the role of John Ashcroft in this case, first as Attorney General until 1984 and then as governor until 1992. In particular, I will address certain statements that Mr. Ashcroft has made in these hearings about the case and his role in it, statements that are contradicted by the record. 1. was the state a party when it was held to be a constitutional wrongdoer and legally liable for segregation of the st. louis schools?

Patrick Leahy

Mr. Ashcroft said it was not a party when he took over and therefore he had to litigate these findings. The fact is that the State was made a party in 1977 at the time Mr. Ashcroft was Attorney General. Thus, in 1980, when the Court of Appeals held that the state hade violated the Constitution, Mr. Ashcroft had a full opportunity to litigate the issue before the courts and made a full-dress argument. Adams v. United States, 620 F. 2d 127, 1283 (1980) Nevertheless, he persisted in contesting state liability in appealing Liddell orders in 1981, 1982, and 1984. 667 F.2d 643,657 (8th Cir 1981); cert. denied 454 U.S. 1081; 677F2d.626 (8th Cir. 1982); cert. denied 459 U.S. 877; 731 F.2d 1294 (8th Cir 1981); cert denied 469 U.S. 816 (1984).

Patrick Leahy

The Court of Appeals repeatedly rebuffed the State's appeals. In 1981, it said the State's appeals. In 1981, it said that the State's contentions that the 1980 decision did not settle the matter were "wholly without merit," 667 F.2d at 629. The 1984 decision recited again the constitutional misdeeds of the State. 731 F.2d at 1303, 1306.

Patrick Leahy

It may be that Mr. Ashcroft has retracted his claim in dialogue with Senator Leahy on Wednesday, but I wanted to make the record clear that the State was a party and that it continued to press its claim long after the matter was seemingly settled. 2. is it true that the state had done nothing wrong?

Patrick Leahy

Mr. Ashcroft stated in his testimony that the state had "done nothing wrong" and was "found guilty of no wrong." These statements are astonishing and baseless. The Courts, on numerous occasions, had found that the State had done numerous things prior to 1954 to impose racial segregation on school districts, including participation in a scheme to have black children in the St. Louis suburban districts transported to school in St. Louis to keep the schools segregated. In the 1980 decision the District Court found that the State after 1954 "never took any effective steps to dismantle the dual system it had previously compelled." 491 F.Supp. at 351,357,359-601. The State, of course, had an affirmative constitutional duty to help dismantle the regime of segregation it had imposed on black children. Its past history and current abdication led the court to characterize it as a "primary constitutional wrongdoer with respect to the segregated conditions in the St. Louis schools." Id. This is hardly the picture of a blameless governmental entity that Mr. Ashcroft sought to paint. 3. is it true as mr. ashcroft claimed that "in all of the cases where the court made an order, i followed the order, both as attorney general and as governor? "

Patrick Leahy

Nothing could be further from the truth. one key period came in 1980 after the Court of Appeals asked the parties to explore the possibility of a voluntary inter-district remedy and Judge Meredith entered a formal order to begin the process. The State resisted the process at every turn. In March 1981, Judge Hungate, who had taken over the case, found that "the State as a matter of deliberate policy, decided to defy the authority of [this] Court" and that the State had resorted to "extraordinary machinations" in an effort to resist dismantling the dual system. H (11) 81 at 6. These findings came after a lengthy recitation of the numerous occasions on which the State had sought to delay and evade court orders. The Court considered holding the State in contempt, but decided to make one more effort to issue an order that might result in State to escape triumphantly from the consequences of its defiance of Judge Meredith's orders. . .The Court would be doing much less than its duty if the State defendants were not held accountable for their actions." Id. at 7. This Order is included as Exhibit 4 to my testimony.

Patrick Leahy

The resistance of John Ashcroft became quite personal. As I detailing my testimony, in July 1981, the Court appointed Susan Uchitelle, an employee of the State Department of Education, as interim director of a committee charged with devising a voluntary plan. The State objected strenuously to Ms. Uchitelle's appointment and filed formal objections with the Court which were later rejected. At the same time, the State sought to pressure Ms. Uchitelle to resign from this assignment. A contemporaneous log kept by Ms. Uchitelle reveals that a state education official relayed to her a threat from Mr. Ashcroft that if she chose to remain in the job she would have to resign her state job and, if she did, that she "would never receive another appointment or job from them."

Patrick Leahy

Delaying tactics did not cease. Indeed, after our settlement with the 22 suburban school districts was reached and the State appealed again and continued to resist even after its appeals were exhausted, the District Court noted that the State had delayed implementation of the voluntary plan through opposition and repeated appeals and concluded that "were it not for the state and its feckless appeals, perhaps none of us would be here at this time." Order H (355)) 84 at 17,25 (December 28, 1984.)

Patrick Leahy

These tactics continued through Mr. Ashcroft's tenure as governor. Judge Steven Limbaugh, a Reagan appointee to the bench, referred to conduct by the State that included "factual inaccuracies, statistical distortions and insipid remarks" regarding the Court's handling of the case. He warned the State to "desist in filing further motions grounded in rumor and unsubstantiated allegations of wrongdoing." and added that the State had even resorted to "veiled threats" toward the Court to try the "thwart implementation of the remedy." Order L (2311) 89 at 2.

Patrick Leahy

In sum, contrary to Mr. Ashcroft's claim of following court orders, we have a pattern of resistance and evasion that persisted for almost a decade and that drew many court rebukes. 4. other matters.

Patrick Leahy

While Mr. Ashcroft claims he was and is in favor of integration, he said nothing to support this during the conduct of the case. Indeed, he called the voluntary desegregation plan "an outrage against human decency." St. Louis Post-Dispatch, June 15, 1984. He opposed not only the desegregation aspects of the plan but the program to improve city schools as well, and he never offered a desegregation plan of his own.

Patrick Leahy

At one point in his testimony, Mr. Ashcroft suggested that the plan was harmful because it drew middle class students out of city schools. This is flatly wrong. Seventy-five percent of children participating in the plan are eligible for free and reduced priced lunches.

Patrick Leahy

Mr. Ashcroft has suggested that his conduct should be viewed along with the conduct of one of his successors as Attorney General, Jay Nixon, a Democrat. It is true that I have been critical of Mr. Nixon for his efforts to end the remedy. But there is one critical difference. In the end Jay Nixon joined with Governor Carnahan and a bipartisan majority in the Missouri legislature in successfully seeking state legislative appropriations to replace the court-ordered funding and allow the remedy to continue while the court ended active supervision, and Mr. Nixon entered into a final settlement agreement with the plaintiffs. This was eloquent testimony to the success of a plan that John Ashcroft fought at every step of the way. If he had prevailed, many thousands of St. Louis children would be denied the educational opportunities they now enjoy.

Patrick Leahy

Ms. James, I understand from Senator Hatch that you have a conflict. You were supposed to be on a later panel, and to accommodate your schedule, we put you on this panel. Is that correct?

Orrin G. Hatch

I don't know.

Orrin G. Hatch

Kay, can you be here tomorrow? Because if you can, that would be better to have you.

Patrick Leahy

I am trying to accommodate her.

Orrin G. Hatch

Why don't we get the last three witnesses and have them give their testimony, and then if you can stay, that would be great.

Patrick Leahy

I think we want to just keep to the --

Orrin G. Hatch

Why?

Patrick Leahy

We will start to question these witnesses, but, Ms. James, as I said to you, I would be perfectly willing to have her come here.

Patrick Leahy

Why don't you give your testimony, Ms. James.

Kay James

Thank you, Mr. Chairman, and I do appreciate your accommodation. I will try to speak at a little more rapid pace than would be my normal cadence to get it in, and I do understand that we are all operating under time constraints.

Kay James

I want to thank you for the opportunity to testify on behalf of the nomination of John Ashcroft to be Attorney General of the United States.

Kay James

My name, in fact, is Kay Cole James, and I am a senior fellow at the Heritage Foundation. I have known Senator Ashcroft for a number of years and in a variety of roles, beginning in 1991 as Governor and as head of the National Governors' Association, as a candidate, also as a member of the U.S. Senate, as a Presidential candidate, and as a conservative activist.

Kay James

Albert Einstein once said it is the duty of every citizen according to his best capacities to give validity to his convictions in public affairs. John Ashcroft's long career not only exemplifies the virtue of devoted public service, but it is a testament to his efforts to give validity to his convictions.

Kay James

Being a State Attorney General or a Governor or a Federal Cabinet member is quite different from being an activist or a partisan. Many individuals are not capable of making the transition. However, by his testimony and by his record as Governor and Attorney General, John Ashcroft has demonstrated that he understands the difference between being an activist and being a public servant.

Kay James

At the root of Senator Ashcroft's strong views is his religious faith which he has said is the bedrock of the principles which shape his life. Unfortunately, that faith has been dragged into the public debate and has been used to call into question his fitness for public service. This sentiment troubles me greatly as an American.

Kay James

Senator Ashcroft's opponents of veered perilously close to implying that a person of strong religious beliefs cannot be trusted with this office, perhaps with any office, on the pure basis that such a person will be unable to resist the temptation to use the office to impose his religious beliefs on others. This assertion troubles me for many reasons more so than I would have thought that we as a Nation had long ago transcended such prejudices.

Kay James

John Kennedy faced similar questions and attacks about a feared conflict between his Catholic faith and the duties of public office and demonstrated that ancient prejudices of this type have no place in our democracy.

Kay James

Several members of the Senate have questioned whether or not a man of strong personal faith and conviction can set aside his personal beliefs and serve as the Attorney General for all citizens. I would hope that this answer is obvious not only from John Ashcroft's 25 years of remarkable service, but from the history of our Nation as well. To the contrary, I believe that John Ashcroft is precisely the type of individual we need in the public arena, a man of strong principles, great integrity and intellect, who does not shirk from engaging in public discourse about the great issues or our day, and does so in a way that demonstrates not only his respect for others and divergent views, but an absolute and passionate commitment to the rule of law.

Kay James

The system our founders designed, of course, is famous for its many checks and balances from which no public official is immune. Nevertheless, the charge is still made that these are insufficient to deal with a man of religious conviction, as such a person cannot be trusted to faithfully execute the laws, especially those which may conflict with his deeply held belief. I reject such religious profiling.

Kay James

On this matter, let me attempt to reassure John Ashcroft's opponents by enlisting the very thing they profess to fear most, his religious faith. As with every other holder of public office, John Ashcroft must take an oath before assuming his responsibilities, and in this secular age, when even a hint of religion in the public sphere can arouse fierce opposition. We keep the religious element in our oath precisely because we understand the importance to the individual. John Ashcroft will raise his hand if he is approved by the Senate and voted on to become the Attorney General, and he will take an oath of office. And I think that it is great. I think that at this particular time in American history it is so important to all of us to have people with character, with integrity, that when they raise their hand and they promise to defend and protect this great nation, we can count on them to do that.

Kay James

Mr. Chairman, I have other comments, and I will reserve them for the question and answer period, and submit them for the written record. And thank you, again, very much for your accommodation.

Kay James

Albert Einstein once said, "It is the duty of every citizen, according to his best capacities, to give validity to his convictions in public affairs." John Ashcroft's long career not only exemplifies the virtue of devoted public service, but it is a testament to his efforts to "give validity to his convictions."

Kay James

I am tempted to focus my remarks on the reasons why Senator Ashcroft would make an outstanding Attorney General, for that would be a case that is both easy and enjoyable to make. If the vote to confirm were to rest on the nature of his character or his integrity, then I have little doubt that your decision would be a unanimous one. But, unfortunately, the public debate has become focused on other things. It has been diverted into areas that I believe not only are not founded on fact, but also are harmful to the larger process in which we are currently engaged. So, with your permission, I will use my time to address some of the wayward elements of the public debate that has unfolded outside these walls, a debate that I believe is profoundly miscast.

Kay James

I have watched these hearings and thought that there was an important distinction that needed to be made. There is an enormous difference between being an advocate for a particular viewpoint or course of action -- an activist, and in actually serving in government in an elected or appointed position. Each involves vastly different roles, different functions, and different goals and processes. Many spend their entire lives as advocates and truly do not understand the very different role of governing or interpreting the law. Being a state attorney general or a governor or a Federal Cabinet member is quite different from being an activist or a partisan. Many individuals are not capable of making the transition. However, by his testimony and by his record as governor and attorney general, John Ashcroft has demonstrated that he understands the difference between being an activist and being a public servant.

Kay James

At the root of Senator Ashcroft's strong views is his religious faith, which he has said, is the bedrock of the principles which shape his life. Unfortunately, that faith has been dragged into the public debate and has been used to call into question his fitness for public service. This sentiment troubles me greatly as an American. Senator Ashcroft's opponents have veered perilously close to implying that a person of strong religious beliefs cannot be trusted with this office -- perhaps with any public office -- on the spurious basis that such a person will be unable to resist the temptation to use the office to impose his religious beliefs on others. This assertion troubles me for many reasons, none more so than that I would have thought that we, as a nation, had long ago transcended such prejudices. John Kennedy faced similar questions and attacks about a feared conflict between his Catholic faith and the duties of public office and demonstrated that ancient prejudices of this type have no place in our democracy. Similarly, I was heartened by Senator Lieberman's many references during the recent presidential campaign to the importance of faith in his life and in that of the nation as a whole and his refusal to be silenced by those who believe that the mere discussion of personal faith in public life is a danger to be suppressed. Indeed, A1 Gore professed wondering "What would Jesus do?" when confronted with a difficult decision.

Kay James

Several members of the Senate have questioned whether or not a man of strong personal faith and conviction can set aside his personal beliefs and serve as the Attorney General for all citizens. I would hope that the answer is obvious not only from John Ashcroft's twenty- five years of remarkable service, but from the history of the United States as well. To the contrary, I believe that John Ashcroft is precisely the type of individual we need in the public arena: a man of strong principles, of great integrity and intellect, who does not shirk from engaging in public discourse about the great issues of our day, and does so in a way that demonstrates not only his respect for others and divergent views, but an absolute and passionate commitment to the rule of law.

Kay James

Since he is being considered for high public office, we might well ask: How would the Framers of the Constitution have looked upon a man of this type? The answer is obvious: We can assume they would have welcomed him as one of their own, for these characteristics describe those same men as well. I draw this comparison because it is directly relevant to the current debate and to the process of confirmation: Because the Framers could not foresee every eventuality, they designed a system they believed would be able to operate under virtually any condition. Being men of deep convictions and forceful character, their plans assumed that national offices would continue to be occupied by individuals with strong personalities and opinions, and especially by persons of faith. Not only were these men veterans of many sharp political battles, they expected that such conflicts would remain a permanent feature of the national government. I am certain that, far from being concerned, the Framers would be gratified that, two centuries later, the responsibilities of public office were still being entrusted to men of John Ashcroft's caliber.

Kay James

The system they designed is, of course, famous for its many checks and balances, from which no public official is immune. Nevertheless, the charge is still made that these are insufficient to deal with a man of religious conviction, as such a person cannot be trusted to faithfully execute the laws, especially those which may conflict with his deeply-held beliefs. On this matter, let me attempt to reassure John Ashcroft's opponents by enlisting the very thing they profess to fear most: his religious faith.

Kay James

As with every other holder of public office, John Ashcroft must take an oath before assuming his responsibilities. In this secular age, when even a hint of religion in the public sphere can arouse fierce opposition, we keep the religious element in our oaths, precisely because we understand its importance to the individual: the pledge is not only being made to the temporal world, but to one's Creator. Some may view these oaths as a dusty remnant of a longago age, the final ritual in a succession of formalities in the path to public office. I know that this is not Senator Ashcroft's view. I know -- and, more importantly, he knows -- that when he places his hand upon the Bible, the oath he will freely take will require him to faithfully execute the laws of the land, even those he himself might find repugnant. If there were any reservation in his heart regarding his ability to carry out his responsibilities, if he held some secret plan to betray the duties of his office, he would not take that oath; he could not take it. He could have no agenda higher than that which his oath prescribes for him. Such sentiments may appear a quaint notion to some, but they fill me with great confidence, and I would commend them to you as well.

Kay James

Some activists have shamelessly played the "race card" and suggested that John Ashcroft is a racist, at worst, or insensitive, at best. I really doubt that there is any person who knows him who actually believes these charges. However, apparently there are some who believe that political advantage may be gained by attempting to portray him as such. Since the facts will not support a charge of this type, this goal can only be accomplished through innuendo, by halfspoken suggestions, carried forward by a cynical conviction that the public can be made to believe anything.

Kay James

I'm certain we all can see the irony here: Ashcroft is a man whose integrity cannot be seriously questioned, a man whose forthright opinions are a matter of public record. For this reason, those of his opponents who would seek to discredit him must adopt an approach which is the very antithesis of the man whose character they hope to distort: they must imply things without actually saying them, they must whisper their allegations from the shadows in the hope and expectation that no one will shine a light on their charges.

Kay James

Perhaps it would be best to ignore those charges, but I would like to comment on them nonetheless. I am an African-American woman. I was born in the South and grew up during a time when the dead hand of the past lay heavily on everyone who lived there. As a child and as an adult, I encountered racism on a daily basis. It was no abstract concept to be regretted: it structured every element of our lives. I lived with it, not merely in its overt, public, legally mandated forms, but in all of its subtleties, in all of its forms, in every crevice of life it seeped into. I know all of the shadings of racism; I understand its many manifestations and can see past the smiling face it often wears.

Kay James

It is because of this first-hand experience that I can say that John Ashcroft is no racist. I know there are many who strongly disagree with Senator Ashcroft's views on various subjects, and they have every right to make their disagreements known. To disagree with someone philosophically is perfectly acceptable; as it is to differ with their ideology; indeed, to hold someone accountable for their positions and actions is an important part of the "advise and consent" function of this body. However, all of these things can and should be done in a way that respects the conviction, person and beliefs of those with whom you disagree. This has been a hallmark of Senator Ashcroft's career and I hope that the same consideration would be shown to him.

Kay James

In 1761, a Boston lawyer, James Otis, wrote, "The only principles of public conduct that are worthy of a man are to sacrifice estate, ease, health, and applause, and even life, to the sacred calls of his country. These ... sentiments, in private life, make the good citizen; in public life, the patriot and the hero." John Ashcroft's life has been an honorable and devoted response to the "sacred calls of his country." I am pleased to be here today to support his nomination and I respectfully encourage the Senate to confirm him as the next Attorney General of the United States.

Kay James

Thank you, Ms. James. Again, so we know the schedule, we will go to 6. We will then -- unless somebody is in the middle of an answer, of course, we will reconvene at 9, we will go without any breaks until we finish, if that is possible.

Patrick Leahy

Patrick Leahy

Ms. James, I hope you heard my opening statement on these, that no member of this Committee makes the charge of either racial or religious bias when it comes -- when it refers to Senator Ashcroft, and I also stated that we all know better.

Patrick Leahy

I would like to clarify a misperception that has created some comments during the testimony of Senator Ashcroft about the role of the late Mel Carnahan, the St. Louis desegregation case. Mr. Carnahan was the treasurer of the State of Missouri during the early 1980's. The state was ordered to make payments to fund desegregation. Under Missouri law the treasurer could be held personally liable for making a payment without the warrant of the commissioner of administration of the State of Missouri. When Mel Carnahan was asked to sign a multimillion dollar check, he did ask on the state's behalf -- he waited for the U.S. District Court to issue an order telling the commissioner of administration to issue the necessary warrant, instructing him to do it. Once he had the legal authority, he went and issued a check, so I did not want anybody to have the impression that the late Mel Carnahan in any way sought to slow down the progress of desegregation in Missouri.

Patrick Leahy

And Mr. Taylor, during his testimony, Senator Ashcroft criticized the Kansas City school desegregation litigation. He said it was not helping children. So let me ask you something about the St. Louis desegregation case.

Patrick Leahy

While then Attorney General Ashcroft was litigating that case, he convinced the Eighth Circuit that the state should not bear the cost of transferring students from one suburban district to the other. That part of the court's order covered only 300 students, who were just a few months from being in the school year. I understand that then Attorney General Ashcroft moved immediately to cutoff the state's payments for those students, which severely disrupted the education of those 300 children.

Patrick Leahy

If that is correct, is that something that would have helped children, and how did the court react to that?

William Taylor

You are entirely correct, Mr. Chairman. It was during the middle of the school year that then Attorney General Ashcroft asked the children be sent back to the schools that they had transferred from, and it would have been enormously disruptive. And the court recognized that it would not have furthered their education, and it was probably one of the more blatant of many actions which did not serve the interest of school children.

Patrick Leahy

And I understand that he had called the voluntary desegregation plan an outrage against human decency, an outrage against the children of this state. That was in the St. Louis Post Dispatch in 6-15-84.

Patrick Leahy

But then I understand that he made political use of the fact that he was nearly subject to contempt of court from a Federal judge, saying he had done everything in his power legally to fight the desegregation plan, and to prove his point he said, "Ask Judge Hungate, who threatened me with contempt." Is that the words of somebody who was supporting a plan of integration?

Kay James

It is not the words of somebody who was supporting a plan. These were statements he made during a Republican primary against -- where he was running against Gene McNary, who was another opponent of desegregation, and they were in many respects echoing the words that I heard during the 1950's and the 1960's during an era of massive resistance.

Kay James

I should add that Senator Ashcroft not only opposed this voluntary plan, but he also opposed other aspects of the court order that would require the state to pay money to improve the conditions of African-American children. He opposed funding for a school improvement plan in the central city, and issued a press release about that. And he never, never during the course of all the years that he was involved in the case, offered any kind of alternative program that he suggested would work better to provide educational opportunity for minority children.

Patrick Leahy

Thank you. Mr. Henderson, the civil rights community's reaction to this nomination is what you have already stated. How does that compare to previous nominations for Attorney General, including nominations made by Republican presidents?

Wade Henderson

Well, Mr. Chairman, I can assure you that many organizations within the civil rights community have never previously opposed an executive branch nominee for either the position of Attorney General, or for that matter, others. This is not something that is done regularly, very often. It is unusual. And what makes it especially disappointing in this instance is that many of us had hoped that with the new election, the opportunity to bring the country together in the spirit of cooperation and bipartisanship would have been a positive gesture.

Wade Henderson

Certainly there have been others who have been opposed in the past, but as I said to you, this is not a general matter that we undertake and we certainly don't undertake it lightly. And we see this as an only option when issues of principle, such as those involved in the direction of the Department of Justice are involved.

Patrick Leahy

The red light is on, so I yield to Senator Hatch.

Orrin G. Hatch

Well, let me just say I am pleased to have all of you here. I have listened carefully to your testimony, and I have been very interested in it. That is all I am going to say.

Patrick Leahy

Then we will go to Senator Kennedy.

Joe Kennedy III

Thank you very much. And thanks very much to the panel for all of your comments.

Joe Kennedy III

Mr. Taylor, I hope Mr. Chairman, that Senator Ashcroft will be given Mr. Taylor's testimony and be invited to make comments on it, so that we have that record. Because what you have said is basically that Mr. Ashcroft said initially the state was not involved. And you have indicated that they were involved. He indicated that he had complied with all the court orders. You have given us chapter and verse of the actions that were taken, that would cast considerable question and doubt on that. He also indicated that he was just conforming to the law, I mean, trying to test the law, and doing it the way that it should be done, in the court of law. And your response on that is that the judges that have the responsibility in the court found that these were frivolous. Let me hear from you what the judges said when he kept repeating and repeating and repeating, challenging the court orders that were ordering him to come up with a voluntary desegregation plan.

Joe Kennedy III

Was he not ordered in 1980 -- was there not a court order requiring Attorney General Ashcroft to submit a plan for desegregation within 60 days?

Wade Henderson

That's right. And he did not submit the plan, and --

Joe Kennedy III

Excuse me. Did he submit the plan?

Wade Henderson

He did not submit the plan, and that I think was part of what led to this court order that I have quoted, which said that the State had defied the authority of the court and had resorted to extraordinary machinations in order to resist dismantling the dual system.

Joe Kennedy III

Now, this is how long after Brown v. Board of Education?

Wade Henderson

This is 1981, so it is 26 years after Brown.

Joe Kennedy III

And spell out what was happening in the rest of the country? Was the rest of the country moving ahead in terms of trying to address this complex, difficult, and in many instances painful situation? I know it wasn't easy in my own city of Boston. But were they trying to move ahead in all parts of the country?

Wade Henderson

Well, certainly, and there had been widespread desegregation throughout the South after the Supreme Court decided the Green and the Swann cases in the 1970's.

Wade Henderson

Now, Missouri was one of the de jure States. It was covered by Brown v. Board of Education, and yet in Missouri in 1980 and 1981, you still had a condition of widespread segregation that the court felt it had to deal with.

Joe Kennedy III

Well, is it fair to say that it was over 16 years, 8 years when he was Attorney General and 8 years a Governor, that this case wasn't settled?

Wade Henderson

Well, it was settled over his objection while he was Attorney General and his appeals were rejected, and then the State continued, as Judge Limbaugh's order said, to try to obstruct implementation and not to fund the settlement that all the other parties had agreed to and that the court had said, had entered as a consent decree and said was the law of the case.

Joe Kennedy III

And did at some time this get settled after Governor Carnahan --

Wade Henderson

Well, then, in the early 1990's, the State moved under another Attorney General to bring the case to a close, to achieve what was called unitary status. And we went to trial in 1996, and the court then appointed William Danforth as the settlement coordinator in the case, and Danforth had made his own study, Dr. Danforth had made his own study, found that this was a very valuable and workable plan, and he suggested -- and we then went by joint -- I mean, going to the State legislature, and we got the legislature by a bipartisan vote and with Governor Carnahan's help to approve enough money to carry on the remedy, and then we entered into a new settlement, which I think is what you are --

Joe Kennedy III

OK. How are the students doing, very quickly?

Wade Henderson

The students are doing -- most of the students are doing fairly well. The students who have transferred to the suburban school systems -- and I have to tell you that, contrary to what I think Mr. Ashcroft said, 75 percent of these kids are poor. They are free and reduced price lunch eligible students. They are graduating high school at twice the rate of students in the city of St. Louis and students in other places, and they are going on to college at a very great rate. So they are doing well, and that program is working well.

Joe Kennedy III

Finally, Pastor Rice, we want to thank you for your testimony and for your presentation. You are a man of deep faith and obviously committed to your community and equality for all.

Joe Kennedy III

Yesterday, we heard Senator Ashcroft respond to questions regarding his interview with Southern Partisan magazine and his speech at Bob Jones University. Both took place while he was representing Missouri in the U.S. Senate, a State with approximately 500,000 African-American residents. Would you tell the Committee what impact those events had on African- Americans in your St. Louis community? Were they surprised or hurt? Did they care?

Joe Kennedy III

Rev. Rice. Yes, Senator. They were past surprise. They were devastated, and they cared greatly. Not only did they care greatly, several petitions had been offered to the Senator through several different grass-roots organizations asking him to return that honorary degree to the Bob Jones University, and to this point, we have gotten no response. And so it was hurting and devastating to many of our community.

Joe Kennedy III

Let me just say for the record that some say that we cannot speak in one voice, but I want to say that it was over 93 percent of the St. Louis and St. Louis area and Missouri of African-Americans that voted against John Ashcroft in this last November election. I think that is pretty close to a good voice.

Patrick Leahy

Senator Specter?

Arlen Specter

Mr. Taylor, you have an extraordinary record for civil rights beyond any question, and I compliment you for that.

Arlen Specter

William Taylor

Senator Danforth, former Senator Danforth, testified yesterday that Senator Ashcroft in the litigation was doing his job as a vigorous advocate. Would you have any suggestion for how a Senator would evaluate the difference in judgments between you and Senator Danforth, without going into the voluminous records and practically relitigating the case, at least on an individual basis?

Arlen Specter

William Taylor

Well, I appreciate your remarks, Senator. I think the best way is to look at what the court said about then-Attorney General Ashcroft's performance, and I am not sure you were here when I --

Arlen Specter

I was here. The follow-up question to that is: Did the court ever hold him in contempt?

William Taylor

No, but it said that it was prepared to hold him in contempt, and it said that he had defied the orders of the court and engaged in extraordinary machinations.

Arlen Specter

I heard you said that before, and those are tough words. Did the court ever impose sanctions?

William Taylor

No. What happened after that was the Attorney General turned in -- his responsibility was to turn in a plan, a voluntary plan, and the court looked at it and found it so sketchy and inadequate that it just decided to disregard it and go forward with the effort without the State's participation to bring about voluntary desegregation.

Arlen Specter

Mr. Taylor, I raised the question as to whether the court ever acted -- they can act, they can hold you in contempt, they can impose sanctions. When I was district attorney, I was held in contempt of court 1 day for pressing a sentence on a narcotics pusher, Arnold Marks, who got a life sentence when he had 280 -- he has several hundred thousand dollars' worth of heroin. So if a prosecuting attorney gets out of line in the eyes of the court, there are sanctions.

Arlen Specter

So I just wonder why, if it was all that bad, no sanctions were imposed on Ashcroft.

William Taylor

Well, I think, Senator -- I mean, I cheerfully concede that he was never held in contempt, and as far as I know, he was never sanctioned under Rule 11. But the court did evaluate his performance, and the record speaks for itself about how many times he sought to file motions, to relitigate questions that were already settled, and to do other things that the court said added up to a record of defiance.

William Taylor

And I don't know -- you know, I don't think the sole standard is contempt. I would note that I am not sure what kind of attention former Senator --

Arlen Specter

Mr. Taylor, let me pose it from a little different angle because there is very limited time here. Missouri is a pretty moderate State. In my day here, they sent Eagleton and Danforth and Bond.

William Taylor

And shortly before I came, they sent Symington. It is a State with a very moderate background, and Senator Ashcroft was elected five times, twice as Attorney General, twice as Governor, then again as Senator. If his conduct was so palpably outrageous, how in a moderate State could he be re-elected? If a Senator in Pennsylvania did what you say Ashcroft did, he couldn't be re-elected. And I think there are a lot of similarities between the States.

Arlen Specter

William Taylor

Well, I might defer to my friend, Reverend Rice, to answer that question, but I would note that, moderate as it may be, Missouri has a very long-term history of racial discrimination, which it has been struggling to eliminate. And some of the seminal cases, back to Jones v. Mayer and other cases of discrimination, came to the Supreme Court from the State of Missouri.

William Taylor

I can testify, Senator, because I spent a lot of time out there, that race relations have been in a very difficult state.

Arlen Specter

I have one more question -- and the warning light is on -- for you, Mr. Woodson. You have heard what Mr. Taylor has had to say, and at least in his view -- and he is a man of substantial standing in the civil rights area and describes Senator Ashcroft's conduct in very extreme terms. You say the African-American community doesn't speak with a single voice. How would you justify Senator Ashcroft's conduct in light of what Mr. Taylor has said?

Robert Woodson

There has never been --

Arlen Specter

May the record show my red light just went on.

Robert Woodson

There has never been any single-mindedness on the issue of desegregation. Polls continually suggest, point out that in the black community from the late 1960's to forward, 50 to 60 percent of black Americans support desegregation in principle, but object to it in strategies in which it is carried out.

Robert Woodson

Senator Kennedy's own city of Boston, in 1973, Judge Garrity, before he made his ruling, asked the community, Matapan and Jamaica Plain and all the grass-roots people, people who were suffering the problem, what they wanted. There were town meetings all over the city for about 9 months. The people in the community came back to Judge Garrity and said: We wanted the neighborhood schools strengthened; we do not want busing.

Robert Woodson

But the civil rights leaders told Judge Garrity, forget about the will of the majority of black Americans who said they didn't want busing, order the buses to roll, even though not a single civil rights leader had their children on those buses. They were in private schools.

Robert Woodson

And I recall, when I went there on behalf of the National Urban League to monitor this situation, talking to some of the white parents and some of the black parents. What we were doing, they said, is taking kids, black kids out of schools where there was a higher proportion going on to college and sending them into Southie, where white parents said bring your children into these schools, they will graduate as dumb as our kids.

Robert Woodson

But there has always been tension. In Atlanta, Georgia, the NAACP leader there struck a deal for the Atlanta plan. They negotiated to get a higher per capita expenditure on the black schools, and he was fired because -- so that there is no moralistic thinking in the black community on the issue of busing. A large majority of blacks are opposed to forced busing for integration.

Patrick Leahy