[Senate Hearing 107-196]
[From the U.S. Government Publishing Office]
. S. Hrg. 107-196
CONFIRMATION HEARING ON THE NOMINATION OF JOHN ASHCROFT TO BE ATTORNEY
GENERAL OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
----------
JANUARY 16-19, 2001
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Serial No. J-107-1
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Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARING ON THE NOMINATION OF JOHN ASHCROFT TO BE ATTORNEY
GENERAL OF THE UNITED STATES
S. Hrg. 107-196
CONFIRMATION HEARING ON THE NOMINATION OF JOHN ASHCROFT TO BE ATTORNEY
GENERAL OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
JANUARY 16-19, 2001
__________
Serial No. J-107-1
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
76-342 WASHINGTON : 2002
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
MITCH McCONNELL, Kentucky
C O N T E N T S
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TUESDAY, JANUARY 16, 2001
STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware....................................................... 12
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 34
Cantwell, Hon. Maria, a U.S. Senator from the State of Washington 29
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 26
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 27
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 21
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 19
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 16
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 7
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 11
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin... 15
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 23
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 30
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 24
Smith, Hon. Bob, a U.S. Senator from the State of New Hampshire.. 32
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 20
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina....................................................... 14
PRESENTERS
Bond, Hon. Kit, a U.S. Senator from the State of Missouri........ 37
Carnahan, Hon. Jean, a U.S. Senator from the State of Missouri... 36
Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of
Texas.......................................................... 36
STATEMENT OF THE NOMINEE
Ashcroft, John, former U.S. Senator from the State of Missouri... 43
Questionnaire................................................ 50
WEDNESDAY, JANUARY 17, 2001
WITNESSES
Collins, Hon. Susan M., a U.S. Senator from the State of Maine... 157
Danforth, John, former U.S. Senator from the State of Missouri... 159
Jackson Lee, Hon. Sheila, a Representative in Congress from the
State of Texas................................................. 230
Waters, Hon. Maxine, a Representative in Congress from the State
of California.................................................. 229
THURSDAY, JANUARY 18, 2001
WITNESSES
Campbell, Collene Thompson, Member, Memory of Victims Everywhere,
San Juan Capistrano, California................................ 305
Feldt, Gloria, President, Planned Parenthood Federation of
America, New York, New York.................................... 290
Greenberger, Marcia, Co-President, National Women's Law Center,
Washington, D.C................................................ 296
Henderson, Wade, Executive Director, Leadership Conference on
Civil Rights, Washington, D.C.................................. 373
Hulshof, Hon. Kenny, a Representative in Congress from the State
of Missouri.................................................... 311
Hunter, Jerry, Esq., former Labor Secretary of Missouri, St.
Louis, Missouri................................................ 272
James, Kay Cole, Heritage Foundation, Washington, D.C............ 416
Mason, Hon. David C., Circuit Judge, St. Louis, Missouri......... 371
Michelman, Kate, President, Naral, Washington, D.C............... 280
Rice, B.T., Pastor, New Horizons Seventh Day Christian Church,
St. Louis, Missouri............................................ 379
Robertson, Edward D. Jr., Esq., Attorney, Bartimus, Frickleton,
Robertson & Obetz, St. Louis, Missouri, and former Justice of
Missouri Supreme Court......................................... 265
Susman, Frank, Esq., Attorney, Gallop, Johnson, and Neuman, L.C.,
St. Louis, Missouri............................................ 277
Taylor, William L., Esq., Attorney, Citizens' Commission on Civil
Rights, Washington, D.C........................................ 386
Watts, Hon. J.C., Jr., a Representative in Congress from the
State of Oklahoma.............................................. 308
White, Hon. Ronnie, Judge, Missouri Supreme Court, Jefferson
City, Missouri................................................. 243
Woods, Harriet, former Lieutenant Governor of Missouri, St.
Louis, Missouri................................................ 267
Woodson, Robert L., Sr., President, National Center for
Neighborhood Enterprise, Washington, D.C....................... 383
FRIDAY, JANUARY 19, 2001
WITNESSES
Barnes, Michael, President, Handgun Control, Washington, D.C..... 451
Dunn, James M., Visiting Professor of Christianity and Public
Policy, Wake Forest University, Winston-Salem, North Carolina.. 461
------
QUESTIONS AND ANSWERS
Responses of the Nominee to questions submitted by Senator Biden. 487
Response of the Nominee to a question submitted by Senator DeWine 491
Responses of the Nominee to questions submitted by Senator
Feingold....................................................... 491
Responses of the Nominee to questions submitted by Senator
Feinstein...................................................... 498
Responses of the Nominee to questions submitted by Senator
Grassley....................................................... 509
Responses of the Nominee to questions submitted by Senator
Kennedy........................................................ 510
Responses of the Nominee to questions submitted by Senator Kohl.. 519
Responses of the Nominee to questions submitted by Senator Leahy. 525
Responses of the Nominee to questions submitted by Senator Levin. 546
Responses of the Nominee to questions submitted by Senator
Lincoln........................................................ 545
Responses of the Nominee to questions submitted by Senator
Mikulski....................................................... 544
Responses of the Nominee to questions submitted by Senators
Graham and Nelson.............................................. 547
Responses of the Nominee to questions submitted by Senator
Schumer........................................................ 548
SUBMISSIONS FOR THE RECORD
African American Republican Leadership Council, Washington, DC,
Alex-St. James, Chairman, statement............................ 553
Agudath Israel of America, Washington, DC, Abba Cohen, Director
and Counsel, statement and attachment.......................... 557
AIDS Action, Washington, DC, Claudia French, Executive Director,
letter......................................................... 561
America Cares, Inc., Silver Spring, MD, Joyce Nalepka, President,
letter and attachments......................................... 563
American Federation of Labor and Congress of Industrial
Organizations, Washington, DC, John J. Sweeney, President,
letter and attachment.......................................... 581
American Federation of State, County and Municipal Employees,
AFL-CIO, Washington, DC, statement............................. 592
American Federation of Teachers, AFL-CIO, Washington, DC, Sandra
Feldman, President, letter..................................... 594
American Indian Development Associates--New Mexico, Brennan
Center for Justice at NYU School of Law, Children's Defense
Fund, Children's Law Center of Massachusetts, Family Watch,
Justice Policy Institute, Juvenile Justice Project of
Louisiana, Juvenile Rights Advocacy Project at Boston College
Law School, League of United Latin American Citizens (LULAC),
National Association of Criminal Defense Lawyers, National
Association of School Psychologists, National Center on
Institutions and Alternatives, National Community Education
Association, Public Justice Center--Baltimore, Maryland, School
Social Work Association of American, and Youth Law Center,
joint letter................................................... 595
American Insurance Association, Washington, DC, Robert E. Vagley,
President, letter.............................................. 597
American Life League Inc., Stafford, VA, Judie Brown, President,
letter......................................................... 598
American Road & Transportation Builders Association, Washington,
DC, T. Peter Ruane, President & CEO, letter.................... 599
Americans United for Separation of Church and State, Washington,
DC, Barry W. Lynn, Executive Director, statement............... 600
Ancell, D.W., Sheriff of Randolph County, Moberly, MO, letter.... 603
Ashcroft, Hon. John, ``On Judicial Despotism'', transcript of
speech delivered at CPAC Annual Meeting, March 6, 1997......... 604
Asian Pacific American Labor Alliance, AFL-CIO; Japanese American
Citizens League; National Federation of Filipino American
Associations; and Organization of Chinese Americans, joint
statement...................................................... 608
Association of Former Vietnamese Political Prisoners of
Washington, DC, MD & VA, Quyen Cao Nguyen, Chairman, letter.... 614
Baker, John S., Jr., Dale E. Bennett Professor of Law, Paul M.
Hebert Law Center, Louisiana State University, Baton Rouge, LA,
letter......................................................... 615
Baker, Ross K., Professor of Political Science, Rutgers
University, New Brunswick, NJ, article......................... 617
Bar Association of San Francisco, San Francisco, CA, Douglas R.
Young, President, letter....................................... 621
Boat People S.O.S., Merrifield, VA, Nguyen Dinh Thang, Executive
Director, letter............................................... 625
Busalacchi, Pete, St. Louis, MO, statement....................... 627
Business Software Alliance, Washington, DC, Robert W. Holleyman,
II, President & Chief Executive Officer, letter................ 631
California Teachers Association, Burlingame, CA, Wayne Johnson,
President, letter.............................................. 632
Center for Reproductive Law and Policy, Washington, DC, Janet
Benshoof, President, statement................................. 633
Center for Security Policy, Washington, DC, Frank J. Gaffney,
Jr., President and CEO, letter................................. 639
Chamber of Commerce of the United States of America, Washington,
DC, Thomas J. Donohue, President and Chief Executive Officer,
letter......................................................... 640
Christian Legal Society, Annandale, VA, Samuel B. Casey, CEO and
Executive Director, letter..................................... 641
Citizens for a Sound Economy, Washington, DC, Paul Beckner,
President, letter.............................................. 642
Civic Progress Task Force on Desegregation of the St. Louis
Public School System, St. Louis, MO, report and attachments.... 643
Clay, Hon. Wm. Lacy, a Representative in Congress from the State
of Missouri, letter............................................ 705
Collett, Teresa S., Professor of Law, South Texas College of Law,
Houston, TX, letter............................................ 707
Commercial Internet Exchange Association, Washington, DC, Barbara
A. Dooley, President, letter................................... 710
Concerned Christian Citizens, Lynden, WA, Gary Hardaway,
Executive Director, letter..................................... 711
Cornyn, Hon. John, Attorney General of Texas and Stenberg, Hon.
Don, Attorney General of Nebraska, joint letter................ 712
Destro, Robert A., Interim Dean, Columbus School of Law, The
Catholic University of America, Washington, DC, statement...... 714
Dinh, Viet D., Professor of Law, Georgetown University Law
Center, Washington, DC, letter................................. 720
Doerge, Ron, Sheriff, Newton County, Missouri, Neosho, MO, letter 722
Duncan, Richard F., Welpton Professor of Law, College of Law,
University of Nebraska, Lincoln, NE, letter.................... 726
Earthjustice Legal Defense Fund, Washington, DC, Vawter Parker,
Executive Director, letter..................................... 727
Executive Intelligence Review, Washington, DC, Debra H. Freeman,
U.S. Political Editor, statement............................... 730
Federal Managers Association, United States Marshals Service,
Arlington, VA, Dave Barnes, President, letter.................. 741
Fisher, D. Michael, Attorney General, Commonwealth of
Pennsylvania, Harrisburg, PA, letter........................... 743
Focus, Metairie, LA, Archbishop Philip M. Hannan, President,
letter......................................................... 744
Forbes, Daniel, The Progressive Review, article.................. 745
Ford, Hon. Louis, Representative, Missouri House of
Representatives, Jefferson City, MO, letter.................... 750
Former Assistant Attorneys General for the State of Missouri,
joint letter................................................... 751
Fraternal Order of Police, Grand Lodge, Washington, DC, Gilbert
G. Gallegos, National President, letter........................ 753
Free Congress Foundation, Washington, DC, Thomas L. Jipping, Vice
President for Legal Policy and Director, Center for Law and
Democracy, article and attachments............................. 754
Friends of the Earth, Washington, DC, Brent Blackwelder,
President, letter.............................................. 796
Gaston, Doug, Texas County Prosecuting Attorney, Houston, MO,
letter......................................................... 798
Gephardt, Hon. Richard A., a Representative in Congress from the
State of Missouri and Democratic Leader, letter................ 799
Gerhardt, Michael J., Professor, William & Mary Law School,
Williamsburg, VA, statement.................................... 800
Gey, Steven G., Professor of Law, Florida State University
College of Law, Tallahassee, FL, article....................... 811
Grante, Jullian Irving, Senior Partner, J. Irving & Draper,
Spotsylvania, VA, letter and attachments....................... 816
Hammond, Phillip E., D. Mackenzie Brown Professor, Department of
Religious Studies, University of California, Santa Barbara,
Santa Barbara, CA, letter...................................... 820
Harshbarger, Scott, President, Common Cause, Washington, DC, and
Fred Wertheimer, President, Democracy 21, Washington, DC, joint
letter......................................................... 825
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah,
statement in response to the testimony of Michael Barnes of
Handgun Control................................................ 826
Hemenway, Jay, Mercer County Prosecuting Attorney, Princeton, MO,
letter......................................................... 828
Henderson, Col. Ronald, Chief of Police, City of St. Louis, St.
Louis, MO, letter.............................................. 830
Hispanic Bar Association of the District of Columbia, Washington,
DC, Ignacia S. Moreno, President, letter....................... 831
Hormel, James C., San Francisco, CA, letter and attachment....... 835
Human Rights Campaign, Washington, DC, Elizabeth Birch, Executive
Director, statement............................................ 838
Information Technology Association of America, Arlington, VA,
Harris N. Miller, letter....................................... 844
Information Technology Industry Council, Washington, DC, Rhett
Dawson, President, letter...................................... 845
Interfaith Alliance, Washington, DC, Rev. Dr. C. Welton Gaddy,
Executive Director, statement.................................. 846
International Association of Chiefs of Police, Alexandria, VA,
Bruce D. Glasscock, President, letter.......................... 852
International Brotherhood of Police Officers, Quincy, MA, Kenneth
T. Lyons, National President, letter........................... 853
Jenkins, Theron, Sheriff, Taney County, Forsyth, MO, letter...... 855
Johnson, Jim, Lincoln County Sheriff, Troy, MO, letter........... 856
Jones, Kenny, Sheriff, Moniteau County, California, MO, letter
and attachment................................................. 857
Justice Policy Institute, Washington, DC, Vincent Schiraldi,
President and Jason Ziedenberg, Senior Policy Analyst, letter.. 862
Krause, Michael I., Professor of Law, School of Law, George Mason
University, letter............................................. 864
Krauthammer, Charles, Washington Post, January 19, 2001, article. 865
Lambda Legal Defense and Education Fund, Inc., Kevin M. Cathcart,
Esq., Executive Director, letter............................... 866
LAVAS, Houston, TX, Scott K. Bui, Legal Counsel, letter.......... 872
Law Enforcement Alliance of America, Falls Church, VA, James J.
Fotis, Executive Director, letter.............................. 874
Lawyers' Committee for Civil Rights Under Law, Washington, DC,
Charles T. Lester, Jr., Co-Chair and John Payton, Co-Chair,
letter and attachments......................................... 876
Louisiana Lawyers for Life, Metairie, LA, Stephen M. Gere,
President, letter.............................................. 888
Mandelman, Joel C., Attorney, Arlington, VA, letter.............. 890
Martz, George W., Chief of Police, City of Bethany, MO, letter... 891
McConnell, Michael W., Presidential Professor, College of Law,
University of Utah, Salt Lake City, UT, letter................. 892
Miller, Geoffrey P., Professor of Law, New York University,
letter......................................................... 894
Milne, Paul, Sheriff, Cooper County, Boonville, MO, letter....... 895
Million Mom March, Mary Leigh Blek, President, statement......... 896
Missouri Federation of Police Chiefs, St. Louis, MO, Bryan Kunze,
Vice President, letter......................................... 898
Missouri Legislative Black Caucus, Jefferson City, MO, letter.... 899
Missouri Legislature, joint statement by 83 Members.............. 900
Missouri State Fraternal Order of Police, Jefferson City, MO,
Thomas W. Mayer, President, letter............................. 903
Mitchell, Aleta Grimes, Shallmar, FL, statement.................. 904
Mound City Bar Association, St. Louis, MO, Lee Clayton Goodman,
President, letter.............................................. 906
Moroz, Hon. Harold Ronald, Judge, Magistrate Court of Camden
County, Woodbine, GA, letter................................... 908
National Abortion Federation, Washington, DC, Vicki Saporta,
Executive Director, statement.................................. 909
National Asian Pacific American Bar Association, Washington, DC,
Howard L. Halm, President, letter.............................. 914
National Association for the Advancement of Colored People,
Baltimore, MD, Kweisi Mfume, President and Chief Executive
Officer, letter................................................ 915
National Association for the Advancement of Colored People-Saint
Paul Branch, St. Paul, MN, Nathan A. Khaliq, President, letter. 917
National Association of Criminal Defense Lawyers, Washington, DC,
Edward A. Mallett, President, statement........................ 920
National Association of Korean Americans, Washington, DC, press
release and attachment......................................... 925
National Association of Wholesaler-Distributors, Washington, DC,
Dirk Van Dongen, President, letter............................. 926
National Baptist Convention, USA, Inc., William J. Shaw,
President, letter.............................................. 927
National Baptist Convention, U.S.A., Inc., Civil Rights and Equal
Justice Commission, Leonard L.J. Young, Executive Director,
letter......................................................... 928
National Center for Tobacco-Free Kids, Washington, DC, Matthew
Myers, President, statement.................................... 930
National Clergy Council, Washington, DC, Rev. Rob Schenck,
President, letter.............................................. 938
National Coalition of Minority Businesses, Washington, DC, James
F. Garrett, Chairman and Melvin E. Clark, Jr., Vice Chairman,
letter......................................................... 940
National Consumers League, Washington, DC, Linda F. Golodner,
President, letter.............................................. 941
National Council of Jewish Women, Washington, DC, Jan
Schneiderman, President, statement............................. 942
National District Attorneys Association, Alexandria, VA, press
release........................................................ 945
National Family Planning & Reproductive Health Association,
Washington, DC, Judith M. DeSarno, President/CEO, letter....... 946
National Hispanic Leadership Agenda, Washington, DC, Manual
Mirabal, Chair, statement...................................... 947
National Latino Peace Officers Association, Diamond Bar, CA, Jose
Carlos Miramontes, President, letter........................... 968
National Organization for Women, Inc., Washington, DC, Patricia
Ireland, President, statement.................................. 969
National Organization for Women Legal Defense and Education Fund,
Washington, DC, Kathy Rodgers, President and Patricia Blau
Reuss, Vice President, Government Relations, letter............ 972
National Sheriffs' Association, Alexandria, VA, Jerry ``Peanuts''
Gaines, President, letter...................................... 974
National Sheriffs' Association, Alexandria, VA, Patrick J.
Sullivan, Jr., Chairman, Congressional Affairs Committee,
letter......................................................... 975
National Taxpayers Union, Alexandria, VA, John Berthoud,
President, letter.............................................. 976
National Troopers Coalition, Albany, NY, Johnny L. Hughes,
Director, Government Relations and James J. Doyle, III,
Counsel, statement............................................. 977
National Voting Rights Institute, Boston, MA, John C. Bonifaz,
Executive Director, letter..................................... 985
Noel, Edwin L., Attorney, St. Louis, MO, letter and attachment... 990
Nortel Networks, Washington, DC, Frank Carlucci, Chairman, letter 1001
Orthodox Union, New York, NY, Harvey Blitz, President, Rabbi
Raphael Butler, Executive Vice President, Richard Stone, Chair,
Public Affairs, and Nathan J. Diament, Director, Public
Affairs, letter................................................ 1002
Paulsen, Michael Stokes, Briggs & Morgan Professor of Law,
University of Minnesota Law School, Minneapolis, MN, letter.... 1003
People Advancing Christian Education, Washington, DC, John K.
Hutcheson, Sr., Executive Director, letter..................... 1005
People For the American Way, Washington, DC, Ralph G. Neas,
President and Tracy Hahn-Burkett, Acting Director of Public
Policy, letter and attachments................................. 1006
Petree, Leo, Chief of Police, Tipton, MO, letter................. 1076
Pierce, W.J., Sheriff of Jasper County, Carthage, MO, letter..... 1077
Plunkett, Larry W., Sr., Sheriff, Wayne County, Greenville, MO,
letter......................................................... 1078
Polish American Congress, Chicago, IL, Edward J. Moskal,
President, letter.............................................. 1079
Prudential Securities, James Lucier, article in Washington World. 1081
Public Campaign, Washington, DC, Nicholas Nyhart, Executive
Director, letter............................................... 1088
Religious Coalition for Reproductive Choice, Donna R. Gary, Co-
Chair, Board of Directors, letter and attachment............... 1092
Republican National Committee, David Israelite, Director,
Political and Governmental Affairs, letter and attachments..... 1095
Ross, William G., Professor of Law, Cumberland School of Law,
Samford University, Birmingham, AL, statement.................. 1106
Rotunda, Ronald D., Albert E. Jenner, Jr. Professor of Law,
College of Law, University of Illinois, Champaign, IL, letter.. 1116
Ryan, Jim, Attorney General, State of Illinois, Springfield, IL,
letter......................................................... 1117
St. Louis Black Leadership Roundtable, St. Louis, MO, Shelia
Stix, Chair, letter and attachment............................. 1118
St. Louis Globe-Democrat:
February 17, 1981, article................................... 1120
August 6, 1982, article...................................... 1121
St. Louis Post-Dispatch, Inc.:
December 24, 2000, editorial................................. 1122
January 14, 2001, editorial.................................. 1123
January 18, 2001, editorial.................................. 1126
Scrivner, Hon. Roger M., Circuit Judge (Ret.), Belleville, IL,
letter......................................................... 1128
Seneker, Doug, Sheriff, Lawrence County, Mt. Vernon, MO, letter.. 1130
Shurtleff, Mark L., Attorney General, State of Utah, Salt Lake
City, UT, letter............................................... 1131
Sierra Club, Washington, DC, Daniel J. Weiss, Political Director,
statement and attachments...................................... 1132
60 Plus Association, Arlington, VA, James L. Martin, President,
statement and attachments...................................... 1142
Southern Partisan, Second Quarter, 1998, interview with Senator
Ashcroft....................................................... 1147
Stovall, Carla J., Attorney General, State of Kansas, letter..... 1151
Sunstein, Cass R., Karl N. Llewellyn Distinguished Service
Professor of Jurisprudence, Law School and Department of
Political Science, University of Chicago Law School, Chicago,
IL, letter..................................................... 1152
Taylor, Stuart, Jr., National Journal, January 13, 2001, article. 1156
Texas Legislative Black Caucus, Austin, TX, letter............... 1158
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina, letter............................................... 15
Troy, Tevi, Washington Diarist, January 18, 2001, article........ 1160
United Methodist Church, Women's Division, Washington, DC, Susie
Johnson, Executive Secretary for Public Policy, letter......... 1163
USAction, Washington, DC, William McNary, President and Jeff
Blum, Executive Director, letter............................... 1165
United States District Court, Eastern District of Missouri,
Eastern Division, July 11, 1984, Memorandum Opinion, and Appeal
affirming the decision of the District Court................... 1167
Vermeersch, James L., Executive Director, Missouri Sheriffs'
Association, Jefferson City, MO, letter and attachment......... 1189
Victims Rights Political Action Committee, Washington, DC,
Charles G. Brown, Director, letter............................. 1196
Vietnamese Community of Houston and Vicinity, Inc., Houston, TX,
Khiet Nguyen, President, letter................................ 1197
Violence Policy Center, Washington, DC, statement................ 1199
Walsh, John, Host, America's Most Wanted, letter................. 1210
Weeks, Ron, Chief of Police, City of Pevely, Pevely, MO, letter.. 1211
Winograd, Anna-Beth, Amherst, MA, letter......................... 1212
Wisconsin Legislative Black & Hispanic Caucus, Madison, WI,
letter......................................................... 1213
Women's International League for Peace and Freedom, St. Louis
Branch, Mary Jane Schutzius, President, public hearing
transcript..................................................... 1216
Youth Law Center, Washington, DC, Mark I. Soler, President,
letter......................................................... 1243
Zywicki, Todd J., Associate Professor of Law, School of Law,
George Mason University, letter................................ 1245
NOMINATION OF JOHN ASHCROFT TO BE ATTORNEY GENERAL OF THE UNITED STATES
----------
TUESDAY, JANUARY 16, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 1:34 p.m., in
room SH-216, Hart Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kennedy, Kohl, Feinstein,
Feingold, Schumer, Durbin, Hatch, Thurmond, Grassley, Specter,
Kyl, DeWine, Sessions, Smith, and Brownback.
Senator Hatch. If we can have order? Can we have order,
please?
Mr. Chairman, it is with a great deal of honor and
privilege that I present you as our new Chairman with this very
important gavel to be able to keep order during these hearings
and hearings thereafter.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. Thank you, Mr. Chairman. I will protect the
gavel carefully in the few hours, the very few hours I get to
do it. I have a feeling I will be presenting you with one next
week. For the public to know, this gavel was actually made by
my son, Kevin, in seventh grade, which shows you how long it
has been since I have been Chairman of anything.
It is a privilege to call these hearings to order, and I
welcome my friend, Orrin Hatch, and all the continuing members
on both sides of the aisle. We are being rejoined this year by
Senator Durbin of Illinois. Senator Durbin was a very valuable
member of this Committee when he served here before leaving to
go to a different Committee. Dick, we are delighted to have you
back.
We are also joined by Senator Brownback, who has been in
the Senate for some time, but this is his first service here.
Sam and I have worked together on a number of significant
pieces of legislation. Sam, I am delighted to have you in the
Committee.
Senator Brownback. I am happy to join you.
Chairman Leahy. I understand my neighbor from New Hampshire
who is sitting in on these hearings and will be leaving. I am
sorry to have that happen because Senator Smith and I have also
worked together on matters. And we do have the ability to check
with each other on what the weather is along the Connecticut
River.
Senator Cantwell of Washington State will be joining us,
but she and Senator Biden are at the memorial service for our
former colleague Alan Cranston in California. Senator Cantwell
first came to Washington as a staff member of Senator Cranston.
Senator Biden and I along with several others here served with
him. They would be here if not for that. And, of course, we
have the nominee, Senator Ashcroft, his wife, Janet, and others
whom we will get to in a few minutes. I welcome Senator
Ashcroft, who certainly is no stranger to this Committee room,
along with his family here.
I have said many times, as most of us have, that the
position of Attorney General is of extraordinary importance.
The Attorney General is the lawyer for all the people. He is
the chief law enforcement officer in the country. That is why
the Attorney General not only needs the full confidence of the
President; he or she also needs the confidence and the trust of
the American people.
We all look to the Attorney General to ensure even-handed
law enforcement and protection of our basic constitutional
rights, including the freedom of speech, the right to privacy,
a woman's right to choose, freedom from government oppression,
and equal protection of all our laws.
The Attorney General plays a critical role in bringing the
country together, bridging racial divisions, and inspiring
people's confidence in their government. Senator Ashcroft has
often taken aggressively activist positions on a number of
issues that deeply divide the American people. While he had a
right to take these activist positions, we also have a duty to
evaluate how these positions would affect his conduct as
Attorney General.
On many of these issues, and on battles over executive
branch or judicial nominees, Senator Ashcroft was not just in
the minority in the U.S. Senate, but in the minority among
Republicans in the Senate. Now, we have to ask if somebody who
has been that unyielding on a policy outlook can unite all
Americans. That is an important question for the Senate.
The hearing is not about whether we like Senator John
Ashcroft or call him a friend. All of us like him and know him.
It is not about whether we agree or disagree with him on every
issue. Many of us have worked productively with him on selected
matters, and we have disagreed with him on others.
Let me be very clear about one thing. This is not about
whether Senator Ashcroft is racist, anti-Catholic, anti-Mormon,
or anti-anything else. Those of us who have worked with him in
the Senate do not make that charge.
At the same time, I know that all Senators and the nominee
agree that no one nominated to be Attorney General should be
given special treatment just because he or she once served in
the Senate.
Fundamentally, the question before us is whether Senator
Ashcroft is the right person at this time for the critical
position of Attorney General of the United States. The
Appointments Clause of the Constitution gives the Senate the
duty and responsibility of providing both its advice and its
consent.
Among the areas we will explore with Senator Ashcroft is
how he fulfilled his constitutional duty as a Senator in
exercising his own advise and consent authority in connection
with executive and judicial nominations. We will explore the
standards he would use in making recommendations to the
President on executive and judicial appointments if he is
confirmed as Attorney General.
President Kennedy observed that ``to govern is to choose.''
What choices the next Attorney General makes about resources
and priorities will have a dramatic impact on almost every
aspect of the society in which we live. The American people
will want to know not just whether this nominee will commit to
enforce the laws on the books, but what his priorities will be,
what choices he is likely to make, and what changes he will
seek in the law.
Most importantly, we will want to know what changes he will
seek in the constitutional rights that all Americans currently
enjoy. These include what positions he will urge upon the
Supreme Court and, in particular, whether he will ask the
Supreme Court to overturn Roe v. Wade or to impose more
burdensome restrictions on a woman's ability to secure safe and
legal contraceptives.
We are proceeding expeditiously with these hearings, as
requested by President-elect Bush, and as I told him I would.
But I have also said from the outset that these hearings have
to be thorough and fair, and they will be.
[The prepared statement of Chairman Leahy follows:]
Statement of Hon. Patrick Leahy, Chairman, U.S. Senator from the State
of Vermont
It is a privilege to call these important hearings to order. I
welcome Senator Hatch and all our continuing Members on both sides of
the aisle. We are being rejoined this year by Senator Durbin, and
joined by Senator McConnell, Senator Brownback and Senator Cantwell. I
look forward to working together with all of you. On behalf of the
Committee, I also welcome Senator Ashcroft and his family here today as
we begin hearings on his nomination to be Attorney General of the
United States.
The Importance of the Position of Attorney General
The position of Attorney General is of extraordinary importance,
and the judgment of the person who serves as Attorney General affects
the lives of all Americans. The Attorney General is the lawyer for all
the people and the chief law enforcement officer in the country. Thus,
the Attorney General not only needs the full confidence of the
President, he or she needs the confidence and trust of the American
people. All Americans need to feel that the Attorney General is looking
out for them and protecting their rights.
The Attorney General is not just a ceremonial position. Rather he
or she controls a budget of over $20 billion and directs the activities
of more than 123,000 attorneys, investigators, Border Patrol agents,
deputy marshals, correctional officers and other employees in over
2,700 Justice Department facilities around the country and in over 120
foreign cities. Specifically, the Attorney General supervises the
selection and actions of the 93 United States Attorneys and their
assistants and the U.S. Marshals Service and its offices in each State.
The Attorney General supervises the FBI and its activities in this
country and around the world, the INS, the DEA, the Bureau of Prisons
and many other federal law enforcement components.
The Attorney General evaluates judicial candidates and recommends
judicial nominees to the President, advises on the constitutionality of
bills and laws, determines when the Federal Government will sue an
individual, business or local government, decides what statutes to
defend in court and what argument to make to the Supreme Court, other
federal courts and State courts on behalf of the United States
Government. The Attorney General distributes billions of dollars a year
in law enforcement assistance to State and local government and
coordinates task forces on important law enforcement priorities. There
is no appointed position within the Federal Government that can affect
more lives in more ways than the Attorney General. We all have a stake
in who serves in this uniquely powerful position and how that power is
exercised.
We all look to the Attorney General to ensure even-handed law
enforcement; equal justice for all; protection of our basic
constitutional rights to privacy, including a woman's right to choose,
to free speech, to freedom from government oppression; and to safeguard
our marketplace from predatory and monopolistic activities, and
safeguard our air, water and environment.
As I said at the confirmation hearings for Edwin Meese to be
Attorney General, ``[w]hile the Supreme Court has the last word on what
our laws mean, the Attorney General has often more importantly the
first word.''
Our current Attorney General, Janet Reno, has helped us all make
unprecedented strides in combating violent crime, protecting women's
rights, protecting crime victims rights and reducing violence against
women. The nation's serious crime rate has declined for an
unprecedented eight straight years. Murder rates have fallen to their
lowest levels in three decades and since 1994 violent crimes by
juveniles and the juvenile arrest rates for serious crimes have also
declined. Our outgoing Attorney General must be commended for greatly
improving the effectiveness of our law enforcement coordination
efforts, federal law enforcement assistance efforts and for extending
the reach of those efforts into rural areas. Her success shows what can
be achieved and reemphasizes how important the position of Attorney
General is to all Americans.
In addition, the Attorney General has come to personify fairness
and justice to people all across the United States. Over the past 50
years, Attorneys General like William Rogers and Robert Kennedy helped
lead the effort against racial discrimination and the fight for equal
opportunity. In terms of addressing the issues that have divided our
country, bringing our people together and inspiring people's confidence
in our government, the Attorney General plays a critical role.
This hearing is not about whether we like Senator John Ashcroft or
call him a friend, which many of us do; not about whether we agree or
disagree with him on every issue, since many of us have worked
productively with him on selected matters and disagreed with him on
others; and certainly not about whether Senator Ashcroft is racist,
anti-Catholic or anti-Mormon--those of us who have worked with him in
the Senate do not make that charge.
What is an important question for the Senate is whether a nominee
who has taken aggressively activist positions on a number of issues on
which the American people feel strongly and on which they are deeply
divided can unite all Americans and have their full trust and
confidence. In the days following the announcement of the President-
elect's intention to nominate John Ashcroft, many people from different
communities and points of view have expressed their concerns with or
support for this selection for Attorney General. The President-elect
says that his choice is based on finding someone who will enforce the
law, but all must concede that this is a highly controversial choice.
The recent presidential election, the margin of victory and the way
in which the vote counting in Florida was ordered to stop through the
intervention of the United States Supreme Court remain a source of
public concern. Deep divisions within our country have infected the
body politic over the last several years as matters became increasingly
partisan. This Committee and the way it conducts itself can help heal
those wounds and help begin to restore confidence in our government.
These hearings provide the nominee with the opportunity to make his
case why he should be approved by the Senate as the Attorney General of
the United States, to convince the great number of Americans who view
this selection with skepticism that they should have confidence in him
and trust him, and to respond to his critics. I have met with Senator
Hatch and strived to work with him to ensure that these hearings will
be full, fair and informative. They provide an important opportunity
for the American people, through their elected representatives, to ask
the nominee about fundamental issues and the direction of federal law
enforcement and constitutional policy that affect all of our lives.
They provide an opportunity for members of the public to speak directly
to us about their concerns and their support for this nomination. At a
time of political frustration and division, it is important for the
Senate to listen. One of the abiding strengths of our democracy is that
the American people have opportunities to participate in the political
process, to be heard and to feel that their views are being taken into
account. Just as when the American people vote, every vote is important
and should be counted so, too, when we hold hearings we ought to do our
best to take competing views into account.
This is an Historic Time
We live in an historic time. During the last few years the country
and the Congress have experienced events without precedent or without
precedent for over 100 years. We saw the House of Representatives
impeach a popularly-elected President for the first time in our
history. The Senate conducted an impeachment trial for only the second
time in history and a bipartisan majority voted not to convict and not
to remove the President from office.
We have witnessed the closest presidential election in the last 130
years and possibly in our history. For the first time, a candidate who
received half a million fewer popular votes was declared the victor of
the presidential election based on electoral votes.
The Senate, for the first time in our history, is made up of 50
Democrats and 50 Republicans and this Committee, for the first time in
its history, will be composed of equal numbers of Democrats and
Republicans. On Saturday, Senator Hatch will again become Chairman of
this Committee. Accordingly, the Committee begins its consideration of
this nomination under a Democratic Chairman and will conclude it under
a Republican Chairman.
Over the last 200 years the confirmation process has evolved. The
first Congress established the office of the Attorney General in 1789
but confirmations were handled by the full Senate or special
committees. It was not until 1816 that the Senate established the
Judiciary Committee as one of the earliest standing Committees, chaired
initially by Senator Dudley Chase of Vermont.
It was not until 1868 that the Senate began regularly referring
nominations for Attorney General to this Committee. In the 26 years
that I have been privileged to serve in the United States Senate, these
confirmation hearings have become an increasingly important part of the
work of the Committee.
Of the 15 cabinet nominees not to be confirmed over time, nine were
rejected by the Senate after a floor vote. Of those, one was a former
Senator, John Tower, in 1989. Two were nominees to serve as Attorney
General. One of those rejected Attorney General nominees was Charles
Warren, an ultraconservative Detroit lawyer and politician nominated by
President Coolidge who was voted down by a Senate controlled by the
President's own party due to concern that Warren's prior associations
raised questions about his suitability to be Attorney General.
``Progressive Republicans, recalling that Warren had aided the sugar
trust in extending its monopolistic control over that industry
believed this appointment was a further example of the
President's policy of turning over government regulatory
agencies to individuals sympathetic to the interest they were
charged with regulating . . . . [T]he progressive Republicans
combined with the Democrats in March 1925 to defeat the
nomination narrowly . . . . The President then nominated an
obscure Vermont lawyer, whom the Senate immediately
confirmed.'' Richard Allen Baker, ``Legislative Power Over
Appointments and Confirmations,'' Encyclopedia of the American
Legislative System, at p.1616.
After the Senate rejected the nomination of Charles Warren,
President Coolidge nominated John Sargent, a distinguished lawyer from
Ludlow, and the only Vermonter ever to serve as the Attorney General of
the United States.
Of the nine Senators who have previously been Attorneys General,
seven were serving in the Senate and resigned in order to become the
nation's top law enforcement officer. Indeed, it has been more than 30
years since a Senator was nominated to be Attorney General. Senator
William Saxbe of Ohio resigned his Senate seat in 1974 to pick up the
reins of the Justice Department in the aftermath of Watergate, at a
time that saw two prior Attorneys General indicted toward the end of
the Nixon Administration.
There was a time, of course, when ``senatorial courtesy'' meant
that Senators nominated to important government positions did not
appear before Committees for hearings. I am sure all Senators and the
nominee agree that no one nominated to be Attorney General should be
treated specially just because he once served in the Senate. I am
confident that, as a former member of this Committee, the nominee
understands that our constitutional duty rather than any friendship for
him must guide us in the course of these proceedings. I expect this
Committee and the Senate to be courteous to all nominees and, for that
matter, all witnesses and all people. The fact that many of us served
with Senator Ashcroft and know Senator Ashcroft and like John Ashcroft
does not mean that the Committee and the Senate will not faithfully
carry out its constitutional responsibility with regard to this
nomination.
The Task at Hand
Fundamentally, the question before us is whether Senator Ashcroft
is the right person for the critical position of Attorney General of
the United States at this time. The Appointments Clause of the
Constitution gives the Senate the duty and responsibility of providing
its advise and consent. The Constitution is silent on the standard that
Senators should use in exercising this responsibility. This leaves to
each Senator the task of figuring out what standard to apply and, most
significantly, leaves to the American people the ultimate decision
whether they approve of how a Senator has fulfilled this constitutional
duty.
Many of us believe that the President has a right to appoint to
executive branch positions those men and women whom he believes will
help carry out his agenda and policies. Yet, the President is not the
sole voice in selecting and appointing officers of the United States.
The Senate has an important role in this process. It is advise and
consent, not advise and rubberstamp. As we begin a new Administration,
the extensive authority and important role of the Attorney General, the
need for the Attorney General to have the trust and confidence of all
the people, and the controversial positions taken by the President-
elect's nominee, require us to consider whether this nominee is the
right person for the critical position of Attorney General of the
United States at this time in our history.
Over the last several years, Republican have made much of the
Senate's ``advice and consent'' power and used objections, secret holds
and narrow ideological considerations in blocking and voting against
presidential nominees. Among the areas we will explore with Senator
Ashcroft is how he fulfilled his constitutional duty as a Senator in
exercising his advise and consent authority in connection with
executive and judicial nominations. We will explore the standards he
would use in making recommendations to the President on executive and
judicial appointments if confirmed as Attorney General.
We will also want him to explain any differences he sees in the
role of the Attorney General and positions he has previously held and
how that different role will affect his actions, policies, priorities,
and positions. And we will explore how Senator Ashcroft would exercise
the awesome power of the Attorney General and administer the programs
and laws that Congress has enacted.
While urging rigorous senatorial scrutiny of cabinet nominations,
scholars explain:
``A lack of interest by an administrator or overt hostility to a
legislative program can eviscerate the policies that Congress
has taken pains to announce as national goals. Administrators
so disposed can shatter agency morale and create uncertainty
for career personnel, who may not know whether they are
supposed to implement or sabotage the statutory objectives.''
William G. Ross, The Senate's Constitutional Role In Confirming
Cabinet Nominees and Other Executive Offices, 48 Syracuse Law
Review 1123, 1150 (1998).
I have been a prosecutor and I know what it means to exercise
prosecutorial discretion, with the result that some laws get enforced
more aggressively than others, some missions receive priority attention
and some do not. No prosecutor's office--unless you are an independent
counsel--has the resources to investigate every lead and prosecute
every infraction. A prosecutor may choose to enforce those laws that
promote a narrow agenda or ones that protect people's lives and
neighborhoods. An inquiry into Senator Ashcroft's actions as a State
Attorney General, Governor and as a Senator may provide a window on how
he might choose to exercise his prosecutorial discretion.
The American people will want to know not just whether he will
enforce the laws on the books today, but also what changes he will seek
and what positions he will take before the Supreme Court in defining
the constitutional rights that all Americans currently enjoy. In
particular, the American people will want to know whether he will urge
the Supreme Court to overturn Roe v. Wade or impose more burdensome
restrictions on a woman's exercise of her right to choose or ability to
secure legal, safe contraceptives.
Moreover, the Attorney General plays an important role in selecting
a President's nominees to the federal judiciary. The President-elect
has said he will not use a litmus test on abortion for his judicial
appointments, but will the Attorney General only recommend to him those
candidates who share Senator Ashcroft's opposition to abortion, even in
cases of incest and rape?
The Committee will want to know what changes he will seek in the
laws in this country, both at the federal level and at the state level,
through federal mandates. For example, during the debate on the Hatch-
Leahy juvenile justice bill in May 1999, Senator Ashcroft offered an
amendment to require states, before they would be eligible for federal
juvenile grant funds, to prosecute as adults juveniles older than 13
years who used or possessed a gun in the commission of certain violent
crimes. That amendment was voted down when it became clear that almost
forty-eight states would lose their eligibility for federal grant
funds.
We are proceeding expeditiously with these hearings, as requested
by President-Elect Bush, with bipartisan agreement to do so even before
we have received a complete FBI background report or Senator Ashcroft's
complete response to the Committee questionnaire for this nomination.
We will not and should not move forward to consider this important
nomination until we have received these documents and have had a
reasonable opportunity to review them. Indeed, should any questions be
prompted by review of those documents, we may decide that further
hearing is necessary before we report the nomination--and I will be
glad to confer with the next Chairman of this Committee about that
eventuality should it arise.
I have said from the outset that these hearings must be thorough
and fair. The President-Elect and his nominee have said that they
expect tough questioning and that the nominee is prepared to answer. We
would ill serve the American people if, as has happened on occasion, we
became distracted with what has be to be called the politics of
personal destruction. On the other hand, we would be neglecting our
sworn duties to the American people if we did not ask questions to
determine what kind of Attorney General the nominee would likely be.
I would like to review some housekeeping matters and outline the
procedures I intend to follow through the hearing. We will try to be
balanced and fair with respect to time. We will start by according each
Senator an opportunity for brief opening remarks. Thereafter, we will
turn to the nominee for any opening remarks that he would like to make.
Following the opening statement of Senator Ashcroft, Senators will have
the opportunity to question the nominee for 15 minutes each. After the
completion of the first round of questions we will continue with a
second, shorter round and so on until we have concluded the initial
questioning of the nominee. We will then turn to other witnesses for
statements and their responses to questions from Members of the
Committee. With the cooperation of Senator Hatch, I expect that we will
be able to provide a final witness list shortly. Throughout the process
we will try to keep the nominee, witnesses and the public advised of
the schedule.
Chairman Leahy. Senator Hatch?
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.
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.
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.
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.
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. Marshals
Service, the Federal Bureau of Investigation, all of the United
States Attorneys throughout the country, and the Bureau of
Prisons. This department also includes, among other things,
enforcement of the law in the areas of 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 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.
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.
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. 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.
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.
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.
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.
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.
Thank you, Mr. Chairman.
[The prepared statement of Senator Hatch follows:]
Statement of Hon. Orrin Hatch, a U.S. Senator from the State of Utah
Mr. Chairman, let me begin by acknowledging you as the Chairman of
the Committee as we begin this new session. I wish you the best in your
first confirmation hearing.
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.
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.
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.
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.
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:
(1) 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.
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.
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.
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.
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.
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.
Chairman 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.
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.
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.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
Thank you, Mr. Chairman. I look forward to the hearings.
Chairman Leahy. Thank you, Senator Kennedy.
We will put Senator Biden's statement in the record.
[The prepared statement of Senator Biden follows:]
Statement of Hon. Joseph R. Biden, Jr., a U.S. Senator from the State
of Delaware
Dear Mr. Chairman:
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.
Let me also preface my remarks by welcoming John Ashcroft, our
former colleague and Judiciary Committee member.
``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.
For me, one of the most memorable things about the
unforgettable presidential election recently concluded was Joe
Lieberman's frequent comment, ``Only in America.'' .
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:
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.
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.
Millions of American citizens and their ancestors took the
words on the Statue of Liberty quite literally: .
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Again, Mr. Chairman, thank you very much.
Chairman Leahy. We will turn to my good friend from South
Carolina, Senator Thurmond.
STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR FROM THE STATE
OF SOUTH CAROLINA
Senator Thurmond. Thank you.
Mr. Chairman, I am very pleased that President-elect Bush
has chosen John Ashcroft to serve as his Attorney General.
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.
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.
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.
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.
Twenty years ago, I recommended him to be Attorney General
for President Ronald Reagan and would like to place that letter
into the record.
Chairman Leahy. Without objection.
Senator Thurmond. And I would like for that to appear at
the end of my statement.
Chairman Leahy. Without objection.
Senator 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.
Thank you, Mr. Chairman.
[Senator Thurmond's letter follows:]
Hon. Strom Thurmond
Washington, D.C. 20510
November 17, 1980
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.
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.
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.
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.
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.
If I can provide other, additional materials of assistance to you
in this regard, please let me know.
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.
STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Kohl. Thank you, Mr. Chairman.
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.
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.
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.
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.
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.
I have enjoyed working with you as a colleague, and I look
forward to this hearing and your answers to our questions.
Thank you.
Chairman Leahy. Thank you.
I turn to the distinguished senior Senator from Iowa,
Senator Grassley.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator 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.
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.
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.
John also co-sponsored the Violence Against Women's Act
when he was here in the Senate.
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.
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.
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.
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.
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.
I yield.
Chairman Leahy. I thank the Senator.
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.
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.
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.
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.
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.
I would turn now to the distinguished--
Senator Hatch. If the Senator would yield for just one
comment on that?
Chairman Leahy. Of course.
Senator Hatch. 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.
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.
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.
Chairman Leahy. Well, I notice among our--
Senator Hatch. And they were the sole witnesses.
Chairman Leahy [continuing]. List of left-wing witnesses,
Heritage Foundation and a few like that, I suspect--
Senator Hatch. Well, for Meese, two conservatives, that is
true, way back when.
Chairman 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.
Anyway, moving along--
Senator Hatch. Just one more point.
Chairman Leahy [continuing]. Can we hear from the
distinguished Senator--
Senator Hatch. Mr. Chairman, just one more point of
privilege.
Chairman Leahy. I am trying to speed this thing up.
Senator 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--
Chairman Leahy. He is on the Members panel.
Senator Hatch. He was the prosecutor and one of the cases--
Chairman Leahy. He is on a Members panel.
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.
Chairman Leahy. Well, Orrin, let's go on with the--
Senator Hatch. Well, I hope you will give consideration to
that because it would be highly unfair if you don't.
Chairman 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.
Senator Hatch. I always waited for yours as well.
Chairman Leahy. The distinguished and highly competent
senior Senator from California.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Thank you very much, Mr. Chairman.
Chairman Leahy. Thank you.
I turn now to the distinguished senior Senator from
Pennsylvania, Senator Specter.
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. Thank you, Mr. Chairman.
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.
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.
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.
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.
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.
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.
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.
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.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator.
The distinguished Senator from Wisconsin, Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
Let me begin by touching on two general principles to guide
our consideration of Cabinet nominations.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
I will turn to the distinguished Senator from Arizona,
Senator Kyl.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman.
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.
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.
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.
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.
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.
I think that is the standard, and when applying it to John
Ashcroft, there can be no doubt that he should be confirmed.
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.
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.
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.
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.
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.
Chairman 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.
I would turn to the distinguished senior Senator from New
York.
STATEMENT OF HON. CHARLES E. SHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman, and welcome,
Senator Ashcroft.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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?
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.
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.
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?
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.
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.
Thank you, Mr. Chairman.
Chairman Leahy. The distinguished Senator from Ohio,
Senator DeWine.
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Mr. Chairman, thank you very much.
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.
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.
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.
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.
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.
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.
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.''
Chairman Leahy. Thank you, Senator.
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.
The distinguished Senator from Illinois, Senator Durbin.
STATE OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE STATE
OF ILLINOIS
Senator Durbin. Thank you, Mr. Chairman.
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.
Chairman Leahy. We like you senior Senators over here.
Senator Durbin. Yes. Well, thank you.
I agree wholeheartedly with the statement made by Senator
Hatch relative to the nature of this hearing and this
investigation.
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.
Some have suggested, though, that we are off to a rocky
start here in this evenly divided Senate by having such a
contentious hearing. Well, this hearing was not the idea of any
Democrat. It happened to be the idea of the Founding Fathers in
Article II, section 2, when they said it would be the
responsibility of the Senate to give advice and consent to the
President of the United States in his nominations. I don't
think that that was a casual reference or surplus verbiage. I
think, in fact, they decided very carefully that they would
restrain the power of the President and make certain that the
chosen leader of our Nation would be subject to review in these
decisions by another branch of Government.
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.''
``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?
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?
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.
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.
If minority voters feel disenfranchised by backward
election technology and politically biased oversight, it is the
Attorney General who must protect their rights.
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.
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.
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.
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.''
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.''
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.
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.
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.
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.
Thank you, Mr. Chairman.
Chairman Leahy. 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.
[The prepared statement of Senator Cantwell follows:]
Statement of Hon. Maria Cantwell, a U.S. Senator from the State of
Washington
Senator Ashcroft, I join with my colleagues in welcoming you to the
Judiciary Committee, a committee on which you have served and which I
am just joining. I am honored that my first appearance on this
committee involves the consideration of an extremely important
nomination, that of the Attorney General of the United States.
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.
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.
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.
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.
I look forward to my first hearing as a member of the Judiciary
Committee and listening to your answers to our questions.
Thank you.
Chairman Leahy. I would recognize the distinguished Senator
from Alabama, Senator Sessions.
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. I thank the Chairman.
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.
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.
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.
[Laughter.]
Senator 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.
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--
Chairman Leahy. You are going to have plenty of time to let
him know what you think about that.
Senator 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.
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.
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.
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.
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.
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.
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.
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.
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.
Thank you.
Chairman Leahy. I thank the Senator from Alabama and will
yield now to my neighbor from New Hampshire, Senator Smith.
STATEMENT OF HON. BOB SMITH, A U.S. SENATOR FROM THE STATE OF
NEW HAMPSHIRE
Senator Smith. Thank you very much, Mr. Chairman and,
Senator Ashcroft and Janet, welcome, I think.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
[Laughter.]
Senator 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.
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.
Thank you.
Chairman Leahy. 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.
Having said that--
Senator Sessions. It didn't go down all those years. Just a
few.
Chairman Leahy. It didn't go down any before.
Senator Sessions. Yes, it did.
Senator Hatch. Enough said.
Senator Sessions. I will show you the numbers. I was there.
Chairman Leahy. Well, maybe it went down when you were U.S.
Attorney.
Senator Hatch. It is going to go down a heck of lot more
under Attorney General Ashcroft, I guarantee you that.
[Laughter.]
Chairman Leahy. I wish you would stop delaying this,
Senator Hatch. We have got to get going with this.
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.
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
OF KANSAS
Senator 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.
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.
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.
[Laughter.]
Senator 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.
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.
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.
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.
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.
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.
Thanks.
Chairman Leahy. Thank you.
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.
With that we will stand in recess.
[Recess from 3 p.m. to 3:22 p.m.]
Chairman 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.
Senator 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.
Chairman 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.
PRESENTATION OF THE NOMINEE BY HON. JEAN CARNAHAN, A U.S.
SENATOR FROM THE STATE OF MISSOURI
Senator Carnahan. Thank you, Mr. Chairman, Senator Hatch.
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.
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.
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.
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.
Chairman Leahy. Thank you very much, Senator.
Senator Hutchison, along our original procedure, we will go
to you. Senator Kay Bailey Hutchison of Texas.
PRESENTATION OF THE NOMINEE BY HON. KAY BAILEY HUTCHISON, A
U.S. SENATOR FROM THE STATE OF TEXAS
Senator Hutchison. Thank you, Chairman Leahy, Chairman
Hatch, and other members of the Committee.
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.
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.
Mr. Chairman, I think he will do the same for the people of
America as Attorney General of the United States.
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.
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.
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.
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.
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.
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.
Chairman Leahy. Thank you, Senator Hutchison, and I
appreciate your taking the time to be here.
Senator Bond, we will go now to you, please.
PRESENTATION OF THE NOMINEE BY HON. KIT BOND, A U.S. SENATOR
FROM THE STATE OF MISSOURI
Senator Bond. Mr. Chairman, Ranking Minority Member,
temporarily, Senator Hatch--
Chairman Leahy. He wants you to emphasize, he wants you to
repeat ``temporarily.''
[Laughter.]
Senator 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
[The prepared statement of Senator Bond follows:]
Statement of Hon. Kit Bond, a U.S. Senator from the State of Missouri
Mr. Chairman. Ranking Minority Member Hatch.
Members of the Committee and colleagues.
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.
As a well-respected former member of this body, John Ashcroft needs
no introduction to you.
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.
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.
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.
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.''
I can think of very few of our colleagues--regardless of party--who
better personifies that virtue.
And in this day and age, what exactly does that mean? INTEGRITY.
It means a ``steadfast adherence to a strict moral or ethical
code.''
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.''
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.
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.
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.
John Ashcroft's consistently strong record on law enforcement is
supported by those on the front lines.
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.
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.
That is just plain wrong.
A well-respected former member of this body deserves better than
that.
John Ashcroft deserves better than that. Our new President and the
American people deserve better than that.
I must tell you, what I have seen in the weeks following John
Ashcroft's nomination has deeply disappointed me.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Failure to support this nominee would not only be a disservice to
John Ashcroft, it would also tarnish the reputation of this
institution.
We must not let that happen.
Thank you.
Chairman Leahy. I thank the Senator.
Senator Kennedy. 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.
Chairman 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.
Senator Bond. I would be happy to.
Senator Kennedy. We will wait until the question period.
Chairman 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.
I thank Senator Hutchison, Senator Carnahan, and Senator
Bond. I thank you for being here.
Chairman 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?
Senator Ashcroft. I do.
Chairman 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?
Senator Ashcroft. Mr. Chairman, if it pleases the
Committee, I would make that a part of my opening remarks.
Chairman Leahy. It is totally your choice. Go ahead.
STATEMENT OF THE NOMINEE, JOHN ASHCROFT, OF MISSOURI, TO BE
ATTORNEY GENERAL OF THE UNITED STATES
Senator Ashcroft. Mr. Chairman, Senator Leahy, Senator
Hatch, members of the Committee--
Senator Thurmond. Would you speak in your loud speaker?
Senator Ashcroft. Yes, Senator Thurmond, I will. Thank you
very much.
Senator Sessions. You should know that by now, John.
[Laughter.]
Senator 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.
Chairman Leahy. Be careful. You may lose some votes over
here.
[Laughter.]
Senator Hatch. I don't think so.
Senator 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.
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.
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.
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.
[Laughter.]
Chairman Leahy. Jimmy, what you got going for you, there
are a lot of grandparents on this panel.
Senator Ashcroft. Thank you, Jimmy. He upstages me around
the house, too. I'm not what I used to be.
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.
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.
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.
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.
No American should be turned away from a polling place
because of the color of her skin or the sound of his name.
No American should be denied access to public
accommodations or a job as a result of a disability.
No American family should be prevented from realizing the
dream of home ownership in the neighborhood of their choice
just because of skin color.
No American should have the door to employment or
educational opportunity slammed shut because of gender or race.
No American should fear being stopped by police just
because of skin color.
And no woman should fear being threatened or coerced in
seeking constitutionally protected health services.
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.
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.
Today, I would like to spend a few minutes telling you a
bit about myself and my family and my beliefs.
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.
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.
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.
[Laughter.]
Senator 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.
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.
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.
Senator Thurmond. Tell her to raise her hand.
[Laughter.]
Senator Ashcroft. Yes. Will the real Janet Ashcroft please
stand up?
[Applause.]
Senator Ashcroft. And, Anne, would you stand up with your
sister, please? Thank you.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
[The biographical information of Senator Ashcroft follows:]
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Chairman Leahy. Thank you, Senator.
What we will do now, we will have in the first round of
questioning--
[Audience disturbance.]
Chairman 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.
[Pause.]
Senator Thurmond. Put them out and keep them out.
Chairman Leahy. The Committee will also stay in order.
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.
I thank the Capitol Police for restoring order.
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.
I have told the nominee that if at any time he wants a
break, of course, we will take one, again, following normal
time.
So I will start the questioning, and then we will turn to
Senator Hatch.
Senator 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.
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.''
Now, Senator, using this Ashcroft standard, do you adhere
to those views as setting the proper standard by which Senators
should evaluate Presidential nominations?
Senator 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.
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.
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.
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.
Chairman Leahy. But, Senator--
Senator Ashcroft. Mr. Lee did not indicate a clear
willingness to enforce the law based on that decision, in my
judgment.
Chairman 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?
Senator 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--
Chairman Leahy. But how could he be more strict--
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--
Chairman Leahy. But he said he would uphold it. I mean,
what more could he say?
Senator 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.
Chairman Leahy. OK. Then I understand, as I said, the
Ashcroft standard on that, but let's go, then, further. Let's
take another step.
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.
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.
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?
Senator 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--
Chairman Leahy. Of course.
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.
When the State of Missouri was asked to fund with hundreds
of billions of dollars a program imposed by a Federal court--
Chairman Leahy. Hundreds of billions?
Senator 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.''
[Laughter.]
Chairman Leahy. I am more interested--I am more interested
in what you said at the time of the desegregation orders in
Missouri.
Senator 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.
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.
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.
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.
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.
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.
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--
Chairman 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.
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--
Senator Ashcroft. Mr. Chairman, I would be glad to respond
to that, if you would like to have me do so.
Chairman Leahy. I would. Hold on one moment and then--
Senator Ashcroft. Thank you. I take these very seriously.
Chairman Leahy. Go ahead. Respond to that. Respond to that.
Senator 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.
Chairman Leahy. So did you--
Senator 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.
Now, over time, it might be that if there had been a
different structure, something different would have happened.
Chairman 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?
Senator 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--
Chairman Leahy. So you have found--
Senator Ashcroft [continuing]. And if they weren't in a
position to defend themselves. That would be unfair.
Chairman Leahy. So you found the criticism of you by the
court to be unfair.
Senator 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.
Chairman 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?
Senator Ashcroft. Well, would you mind--this is 20-some
years ago.
Chairman 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?
Senator Ashcroft. Yes.
Chairman Leahy. Thank you.
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.
Senator Ashcroft. Mr. Chairman, I am pleased to have the
answer to--the opportunity to express my concerns here.
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.
Chairman Leahy. And you disagreed with those, his ethics
and values in that?
Senator 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.
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.
Chairman Leahy. So--
Senator Ashcroft. That was a matter of deep concern to me.
Let me, with all--if I might.
Chairman Leahy. Sure.
Senator Ashcroft. 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.
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.
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.
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.
Chairman 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.
Senator Ashcroft. I think it is fair to say that I believed
he violated the ethical values that are characteristic--
Chairman Leahy. I am not trying to parse words. I just want
to make sure I understand--
Senator Ashcroft. It was a shortfall in his--
Chairman Leahy [continuing]. Particularly the Ashcroft
standard.
Senator Ashcroft [continuing]. Adherence to ethical values
of the American medical community that I think were--
Chairman 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.
Senator Ashcroft. Well, then maybe--
Chairman Leahy. I am trying to give you the fairest--
Senator Ashcroft. Well, maybe if you would let me state my
words, then you don't have to worry--
Chairman Leahy. Right.
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.
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.
Based on both standards, which I believe are less than
acceptable standards in the medical community in this country,
I voted against him.
Chairman Leahy. That is what I was trying to get you to
say. Thank you.
Senator Ashcroft. I'm sorry.
Chairman Leahy. Maybe we were speaking past each other, but
thank you.
Senator Hatch?
Senator Hatch. Well, thank you.
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.
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.
Let me give just a couple of examples, and you gave some
other examples in your opening remarks.
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.
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?
Senator Ashcroft. It is correct.
Senator Hatch. You also, in Attorney General Opinion No.
50--I am just going to mention two. There are all kinds of
these.
Senator Ashcroft. Well, don't ask me to quote them.
Senator Hatch. I won't ask you to quote them.
Senator Ashcroft. We had about 800 or more.
Senator 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?
Senator 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--
Senator 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.
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.
Now, if confirmed as Attorney General of the United States,
will you enforce the laws of this land irrespective of your
personal beliefs?
Senator 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.
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.
Senator 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.
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.
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.''
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.
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.
I suspect that that is the reason you voted against him.
Senator Ashcroft. Well--
Senator 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?
Senator 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.
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.
Senator 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?
Senator Ashcroft. Well, very frankly, the Jenkins case was
a 5-4 case.
Senator Hatch. Right.
Senator Ashcroft. And it was a case in which the judge
imposing a tax was upheld in imposing the tax.
Senator Hatch. It wasn't the Congress that imposed the tax.
It was the judge.
Senator Ashcroft. Nor was it the State legislature or the
city council.
Senator Hatch. That is right. So it was a legitimate
argument.
Senator 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.
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.
Senator 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.
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.
Personally, I as a Christian am very unsettled by the
different treatment accorded you and Senator Lieberman. I think
it is wrong.
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.
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?
Senator 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.
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.
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.
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.
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.
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.
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.
You know, so I think this is something we're going to
work--we will work our way through.
Senator 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.
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.
Senator 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.
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.
Senator Hatch. Thank you, Senator Ashcroft.
Chairman 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?
Senator 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?
Chairman Leahy. I'm amazed at that.
Senator Ashcroft. Pardon?
Chairman Leahy. I said I'm amazed at that.
Senator 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.
Chairman Leahy. Senator Kennedy?
Senator Kennedy. Thank you very much, Mr. Chairman.
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.
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.
Now, let me just continue, and others will get--
Senator Ashcroft. It's your hearing, Senator.
Senator Kennedy. 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.
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?
Senator 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.
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.
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.
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.
Senator Kennedy. I want to try and--I want to give you a
fair chance, but we--
Senator Ashcroft. Well, you--
Senator Kennedy. Go ahead.
Senator Ashcroft. 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.
Senator Kennedy. 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.''
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.''
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.
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?
Senator Ashcroft. Now may I respond?
Senator Kennedy. Sure.
Senator Ashcroft. 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.
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.
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.
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.
In Missouri v. Jenkins, the case in Kansas City--
Senator Kennedy. Could we get on--I don't think we've got--
Senator Hatch. Let him answer the question.
Senator Kennedy. The question wasn't about Kansas City. I
asked about St. Louis.
Senator Ashcroft. Fine.
Senator Kennedy. But if he wants to talk about Kansas
City--
Senator Ashcroft. I would like to talk about Kansas City,
but it's not--I'd rather answer your question than talk about
Kansas City.
Senator Kennedy. That isn't the question, but if you want
to talk about it--
Senator Ashcroft. Well, I'll just give you an idea--
Senator Sessions. You characterized his interest in
education, Senator Kennedy--
Senator Kennedy. Well, that isn't the--
Senator Sessions. You suggested he didn't care--
Senator Hatch. You're accusing him of not--
Chairman Leahy. Gentlemen, gentlemen.
Senator Hatch. Let him answer the question.
Chairman 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.
Senator Kennedy. Well, I had one other area to cover, but
whatever you want to do, John.
Senator Ashcroft. Well, you're the Senator.
Senator Kennedy. Well, you're the--
Senator 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.
Senator Kennedy. 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.
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.
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.
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.''
That makes sense. The only difference between the county
and city is that the city is poorer, more heavily African-
American and votes Democratic.
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.
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?
Senator 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.
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--
Senator Kennedy. 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.
Senator 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.
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.
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.
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.
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.
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.
The second veto message--I'd be happy to read another one.
Senator Kennedy. Mr. Chairman, it's not necessary.
Senator Ashcroft. This is--
Senator Kennedy. 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.
Senator 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.
[Laughter.]
Chairman 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.
Senator 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.
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.
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.
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.
The registration apparatus must be available to everyone,
but it also must be protected jealously to prevent its abuse.
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.
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.
Chairman Leahy. Senator Thurmond, your turn.
Senator 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.
Do you think most Attorneys General have had to enforce
some law that they did not personally support?
Senator 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.
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.
Senator 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?
Senator Ashcroft. I would hope that we would be able to
more effectively enforce the laws relating to guns.
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.
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.
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.
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.
Senator 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.
As Attorney General, will you continue that commitment to
fighting illegal drugs?
Senator 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.
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.
Senator 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?
Senator Ashcroft. Indeed, they should.
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.
Senator 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?
Senator 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.
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.
Chairman 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.
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.
Senator Sessions. Mr. Chairman, we have leave to file a
written statement? May I have leave to file a written
statement?
Chairman Leahy. Oh, of course. Of course. All Senators
will.
We are adjourned.
[Whereupon, at 5:15 p.m., the Committee was recessed, to
reconvene at 10 a.m., Wednesday, January 17, 2001.]
NOMINATION OF JOHN ASHCROFT TO BE ATTORNEY GENERAL OF THE UNITED STATES
----------
WEDNESDAY, JANUARY 17, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
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.
Present: Senators Leahy, Kennedy, Biden, Kohl, Feinstein,
Feingold, Schumer, Durbin, Cantwell, Hatch, Thurmond, Grassley,
Specter, Kyl, DeWine, Sessions, Smith, and Brownback.
Chairman 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.
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.
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.
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.
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.
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.''
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.''
Now, that is my understanding, and I would ask if there is
any disagreement with that understanding.
Senator 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.
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--
Chairman Leahy. And you were Attorney General at that time.
Is that correct?
Senator Ashcroft. I believe that's correct.
Senator Hatch. I wonder if we could go to the regular
order, Mr. Chairman.
Chairman Leahy. I just wanted to--well, the answer--
Senator Hatch. That is the answer he gave yesterday as
well.
Chairman 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--
Senator Hatch. I don't think it needed a correction. I
mean, it was the answer he gave yesterday.
Chairman Leahy. The nominee--
Senator Hatch. Well, let's just have regular order.
Chairman Leahy. The nominee has just said he thanks me for
the chance to correct it, but go ahead, Senator Kohl.
Senator Ashcroft. Sir, in all due respect, I thank you for
the opportunity to clarify.
Chairman Leahy. Thank you.
Senator Kohl?
Senator Kohl. Thank you, Senator Leahy.
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.
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.''
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.''
[Laughter.]
Senator 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.
Senator 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.
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.
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.
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.
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.
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.
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.
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.
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.
Senator 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.
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?
Senator 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.
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.
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.
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.
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.
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--
Chairman Leahy. Separated at birth.
Senator 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.
Senator Kohl. OK. Thank you.
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.
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.''
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.
Can you explain to us why you chose to pursue that case so
vigorously?
Senator 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.
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.
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.
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.
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.
Senator 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.
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.
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.
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?
Senator 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.
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.
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.
Senator Kohl. Thank you, Mr. Chairman.
Chairman Leahy. 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.
Senator Specter. Thank you, Mr. Chairman.
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.
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.
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.
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?
Senator 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.
Senator Specter. Well, if you say aggressively, that is a
good assurance. Aggressive has a well-accepted meaning. I like
aggressive prosecutors.
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.
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?
Senator 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--
Senator Specter. So you would--
Senator 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.
Senator Specter. Let me move to freedom of religion,
Senator Ashcroft, an area again where substantial concern has
been expressed.
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.
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.
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.
Senator 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.
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.
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.''
Senator Specter. Senator Ashcroft, because of limited
time--
Senator Ashcroft. Sure.
Senator Specter.--Would you pinpoint what you did
specifically as Attorney General of Missouri in not permitting
religious matters to be handed out on campus?
Senator 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--
Senator Specter. Did you stop the distribution of those--
Senator Ashcroft. I issued the opinion that indicated that
distribution was unlawful.
Senator Specter. And what did you do?
Senator Ashcroft. Distribution ceased based on that.
Senator 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.
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?
Senator 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.
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.
Senator 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?
Senator 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.
Senator Specter. Your position as well. OK.
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.
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.
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.
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.
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.
Senator 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.
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.
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.
Senator Specter. My yellow light is on. So I have less than
a minute.
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.
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.
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.
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.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Specter.
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.
I turn to the distinguished senior Senator from California,
Senator Feinstein.
Senator Feinstein. Thank you very much, Mr. Chairman.
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.
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.''
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.''
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.
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.
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.
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?
Senator 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.
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.
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.
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.
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.
Senator 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?
Senator 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.
Senator 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?
Senator 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.
Senator 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?
Senator 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.
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.
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.
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.
Senator 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.
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.
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?
Senator Ashcroft. Yes.
Senator Feinstein. Will you support its reauthorization
when it sunsets in 2004?
Senator 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.
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.
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.
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.
Senator 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.
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.
Now, it is my understanding that you work to strip the bill
of these predicates. My question is why.
Senator 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.
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.
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.
Senator Feinstein. I believe my time is up.
Chairman Leahy. It is. Thank you.
Senator Feinstein. Thank you very much, Senator. I
appreciate that.
Chairman 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.
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.
Senator Kyl. Thank you very much, Mr. Chairman.
Mr. Chairman, I would like to cover three things if I could
in this round of questioning.
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.
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.
In my opinion, most of these attacks had the effect of
distorting Senator Ashcroft's record, and I think that they
were unfair.
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.
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.
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.
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.
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.
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.
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.
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.
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.''
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.
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.
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.
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?
Senator 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.
Senator Kennedy. 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.
Chairman 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.
Senator 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.
Chairman Leahy. We are trying to find our process, and
neither Senator will lose on their time as a result of that.
Senator 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?
Senator 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.
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.
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.
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.
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.
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.
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.
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.
Senator 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?
Senator 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.
Senator Kyl. Thank you.
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.
Let me go back. You actually worked to gain support of the
Missouri constitutional amendment on crime victims' rights. Is
that correct?
Senator 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.
Senator 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.
Senator Ashcroft. Well, I hope I was very accommodating to
you.
Senator Kyl. Well, you were, but also you were able to--you
helped us to do that in a very timely fashion. I appreciate
that.
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.
Senator 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.
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.
Senator Kyl. Thank you very much.
Senator Kennedy. 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.
Chairman Leahy. Following the normal procedure, you can.
Senator Kennedy. 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.
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.
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
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.
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.
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.''
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.
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?
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.
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.
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.''
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.''
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.
I could take other time, Mr. Chairman, but I will halt at
this time.
Senator Kyl. Mr. Chairman, I will be brief, if I could as a
matter of personal privilege.
Senator Kennedy. Well, then I will reserve time, too, then,
Senator. I thought we were here to consider the nominee.
Chairman Leahy. Following our procedure, the Senator from
Arizona has a chance to respond.
Senator Kyl. Thank you.
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.
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.
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.
So I will conclude--
Senator Kennedy. 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.
Chairman 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.
Senator Ashcroft. I side with the Chair.
Chairman Leahy. We will take a 5-minute recess.
[Recess from 11:31 a.m. to 11:44 a.m.]
Chairman Leahy. Let us be back in order. The distinguished
Senator from Wisconsin, Senator Feingold, is recognized for his
round of questions.
Senator Feingold. Thank you, Mr. Chairman.
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--
Chairman Leahy. Would the Senator pull the microphone just
a little bit closer?
Senator 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.
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.
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.
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.
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?
Senator 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.
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.
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.
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.
Senator 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?
Senator 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.
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.
Senator 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.
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.
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.
Senator, do you acknowledge that our justice system has
made mistakes and that innocent people have been convicted and
even sentenced to death?
Senator 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.
Senator 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.
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.
Senator Ashcroft. I think it is a very serious
responsibility and it should be only after a very reliable
process of integrity has been undertaken.
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.
Senator 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?
Senator Ashcroft. Yes.
Senator Feingold. 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?
Senator 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.
Senator Feingold. So those studies will not be terminated?
Senator Ashcroft. I have no intention of terminating those
studies.
Senator 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.
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.
If confirmed as Attorney General, would you support this
bill and encourage its passage in the House and Senate?
Senator 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.
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.
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.
Senator Feingold. Absolutely.
Senator 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.
Senator Feingold. Senator, in light of those points, which
we certainly agreed to, would you support this legislation?
Senator 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.
Senator 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.
As Attorney General, what other steps would you take to
eliminate racial profiling?
Senator 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.
Senator Feingold. Will you make racial profiling a priority
of yours?
Senator Ashcroft. I will make racial profiling a priority
of mine.
Senator 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?
Senator 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.
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.
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.
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.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator.
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.
Senator 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.
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.
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.
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.
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.
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.
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.
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.
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?
Senator 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.
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.
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.
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.
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.
Senator 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.
Senator 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.
I don't want to make a statement in this hearing today
which would affect the value of these entities in any way--
Senator Grassley. I know you can't.
Senator 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.
Senator 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?
Senator 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.
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.
Senator 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.
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.
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.
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?
Senator Ashcroft. Yes.
Senator Grassley. 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?
Senator Ashcroft. Yes.
Senator Grassley. 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.
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.
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.
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.
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.
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.
Senator Ashcroft. Senator, I believe that the laws in
place, the constitutionality has been affirmed, and we would
treat the law with respect.
Senator Grassley. Thank you.
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.
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?
Senator 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.
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.
Senator Grassley. Could I please ask one question--
Chairman Leahy. Of course.
Senator Grassley.--And it will just be a short answer?
Because it is on bankruptcy, but--
Chairman Leahy. The Chair will give extra time. Go ahead.
Senator Grassley. Well, just a little while.
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?
Senator 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.
Senator 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.
Senator Ashcroft. If you ask me to study it, Senator, I can
assure you that I will study it.
Senator Grassley. Would you please study it, and would you
discuss it with me again?
Senator Ashcroft. I would be delighted to discuss it.
Senator Grassley. It doesn't necessarily have to be before
I vote for you for Attorney General.
Senator Ashcroft. Well, that's--that is good to know.
Chairman Leahy. In case the nominee is keeping count.
I thank the Senator from Iowa. I know he has tried to
juggle two important things, and I appreciate it.
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--
Senator Sessions. You got two of them down here.
Chairman Leahy. What?
Senator Sessions. Two of us on this end.
Chairman Leahy. No, I understand that, but I am just trying
for our schedule--
Senator Sessions. I can't hear very good. I'm sorry.
Chairman 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.
Senator Schumer, you are recognized, and then we will break
for lunch.
Senator Sessions. When do I get to talk?
Chairman 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.
Go ahead, Senator Schumer.
Senator Schumer. Well, thank you, Mr. Chairman, and thank
you, Senator Ashcroft.
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.
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?
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.
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.''
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?
Senator 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.
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.
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.
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.
Senator Schumer. Right. That is what I think, too.
Senator 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.
Senator Schumer. I appreciate the answer.
Senator 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.
Senator 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?
Senator 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.
Senator 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?
Senator 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.
Senator 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?
Senator 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.
Senator 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.
Senator 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.
Senator 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?
Senator 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.
Senator Schumer. OK. I don't think I can push you any
further, although I wish the answer would be a little clearer,
but--
Senator Ashcroft. I am just not going to issue an opinion
here.
Senator Schumer. I understand.
Senator Ashcroft. I will with all deference--
Senator Schumer. No, I made it hypothetical that if the law
would agree.
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?
Senator 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.
Senator Schumer. Right.
Senator Ashcroft. 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.
Senator 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?
Senator 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--
Senator Schumer. That's all I need to hear.
Senator Ashcroft.--Any opportunity they want to, to have an
abortion. I mean, it is an unrestricted right.
Senator Schumer. OK.
Senator Ashcroft. And I would advise him in that respect as
to what the law is.
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.
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.
But let me ask you this, these four issues, do you think
any of them violate the Second Amendment? The Brady law?
Senator Ashcroft. No.
Senator Schumer. The assault weapons ban?
Senator Ashcroft. No.
Senator Schumer. I think you have answered that.
Licensing and registration, which many States obviously
have now.
Senator 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.
Senator Schumer. Argue for its constitutionality?
Senator Ashcroft. Yes, sir.
Senator Schumer. 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?
Senator 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.
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.
Senator 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--
Senator Ashcroft. I think when--well, pardon me.
Senator 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.
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?
Senator 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.
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.
Senator 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--
Senator 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.
I think what--may I just add this little bit--
Senator Schumer. I think what--
Senator 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.
Senator 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.
Senator Ashcroft. I think that's correct.
Senator Schumer. The staff guy is shaking his head yes, so
I would trust him.
Senator 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.
Senator Schumer. So has your position evolved any on the
72-hour check?
Senator 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.
Senator 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--
Senator Ashcroft. I would advise--
Senator Schumer.--For it in the past.
Senator 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.
Senator Schumer. Thank you.
Chairman Leahy. 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--
Senator 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.
Senator 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.
Chairman Leahy. Well, the fact of the matter is we never
had a conference, so we couldn't seek a consensus--
Senator Hatch. Well, because we knew it was a waste of
time.
Chairman Leahy. I have never been able to predict votes
that well.
Senator Hatch. I have been pretty good about it.
Senator Kennedy. Regular order. Can we have regular order,
Mr. Chairman?
Chairman Leahy. We haven't had it yet. Why should we start
now?
[Laughter.]
Chairman Leahy. The distinguished senior Senator from Ohio.
Senator 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.
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.
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.
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.
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.
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.
A related area in regard to guns is when guns are used
during the commission of a felony. I can't think of anything
that is more important to the safety of the public than to get
people who use guns during the commission of an offense off the
streets. The U.S. attorney can play a very unique and special
role in that regard, and I would hope that that would also be
one of the priorities of your administration.
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.
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.
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.
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.
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.
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.
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.
Senator 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.
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.
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.
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.
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.
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.
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.
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.
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.
Senator DeWine. Senator, thank you very much. Thank you,
Mr. Chairman.
Chairman Leahy. Did you have something else?
Senator DeWine. No, it's fine. Thank you.
Chairman 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.
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.
Senator Collins, please go ahead.
STATEMENT OF HON. SUSAN M. COLLINS, A U.S. SENATOR FROM THE
STATE OF MAINE
Senator 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.
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.
Similarly, if I were to point out that this candidate was
also an individual of tremendous integrity and high personal
values, there would be little doubt that the candidate met the
ethical standards for the position.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Thank you, Mr. Chairman, for your courtesy in allowing me
to appear before the Committee today.
Chairman 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.
Our former colleague, the Senator from Missouri, Senator
Danforth.
STATEMENT OF JOHN DANFORTH, FORMER U.S. SENATOR FROM THE STATE
OF MISSOURI
Senator 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 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.
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.
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.
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.
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.
``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.''
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.
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.
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.''
So for John, the weight of the law determined his conduct
in office and not his personal thoughts about desirable
actions.
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.
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.
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.
Chairman 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.
Are there any questions of either of the Senators? Any
other questions on this side?
[No response.]
Chairman Leahy. Then we will stand in recess until 2:09.
[Whereupon, at 1:09 p.m., the Committee was recessed, to
reconvene at 2:09 p.m., this same day.]
AFTERNOON SESSION [2:17 p.m.]
Chairman 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.
[Pause.]
Chairman Leahy. The distinguished senior Senator from
Illinois, Senator Durbin, is recognized.
Senator Durbin. Thank you very much, Mr. Chairman.
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.
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.
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.
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.''
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.
That was the man who was elevated to the Missouri Supreme
Court, Ronnie White. That was the context of his elevation.
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.
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.
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.
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.
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.
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.
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.
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.
Senator Ashcroft, did you treat Ronnie White fairly?
Senator 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.
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.
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.
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.
Not a single Republican voted for Judge White because of a
substantial number of law enforcement organizations that
opposed his nomination.
Senator Durbin. How many?
Senator Ashcroft. Well, I know that the National Sheriffs'
Association did.
Senator 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?
Senator 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--
Senator Durbin. Your campaign did not contact these
organizations?
Senator 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.
Senator 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.''
Senator Ashcroft. I would be very pleased to continue to
respond to your question.
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.
Senator Durbin. In which specific cases?
Senator 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--
Senator Durbin. Senator Ashcroft--
Senator Ashcroft.--I was Governor of the State.
Senator Durbin. I am sorry--
Senator Hatch. Let him answer the question.
Senator Sessions. Let him answer the question. He has been
interrupted about five times.
Senator 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.
Senator Ashcroft. Well, you have made a number of
statements, Senator, and obviously I'm not running this
hearing.
Senator Durbin. Please--
Senator Ashcroft. But I would like to have the opportunity
to respond--
Senator Durbin. Please do.
Senator Ashcroft.--To your statements, and I think it's
fair to put the situation in context.
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.
Senator 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.
Senator Ashcroft. Well, I think that being the only point,
it's an inadequate point to overturn a guilty verdict for
murder.
Senator Durbin. So the competency of counsel in a death
penalty case you don't believe is grounds for overturning?
Senator 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.
Senator 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.
Senator 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.
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.
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.
Senator Durbin. That was the point that Judge White made--
Senator Ashcroft. That is the point--
Senator 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.
I yield to the Chairman.
Senator Ashcroft. Mr. Chairman?
Senator Hatch. Do you have anything further to say on that?
Senator 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.
That's not my view. That's the law.
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.
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.
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.
Senator 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.
Chairman 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.
Senator 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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
I didn't like the Kinder case either. I think that was
almost a very strange ruling. So that was, to me, significant.
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.
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.''
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.''
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.
Do you have anything to add to that?
Chairman Leahy. Don't you agree?
Senator Sessions. The first one is do you agree.
Senator 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.
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.
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.
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.
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.
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.
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.
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.
Chairman 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.
Senator Ashcroft. I thank the Chair.
Senator Sessions. Could I just have 1 second to wrap up?
Chairman Leahy. Well, the Senator from Alabama, then, will
have more time. Let's go ahead.
Senator 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.
Chairman Leahy. I know the Senator from Alabama wanted to
note the fairness of both the Republican and Democratic leaders
in this Committee.
Senator Sessions. I will note that, Mr. Chairman.
Chairman 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.
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.
Senator 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.
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.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
``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.''
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.
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?
Senator Ashcroft. Thank you, Senator, and I appreciate the
candor of your remarks. I also appreciate the kind things you
have said about me.
Senator Biden. I mean it.
Senator Ashcroft. If some day there is a President Biden,
maybe you will consider Defense and Commerce and those other
things for me.
Senator Biden. America is in enough trouble right now.
Senator 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.
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.
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.
Senator Biden. No, just to make it clear, John, I am not
saying that. I know you better.
Senator Ashcroft. OK.
Senator Biden. 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.''
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.
Senator Ashcroft. Well, I condemn those things which are
condemnable. I mean, slavery--
Senator 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.
Senator 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.
Senator Biden. Allegedly, they sold T-shirts with a picture
of Abraham Lincoln with the words, ``Thus always to tyrants,''
the words of an assassin.
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.''
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.
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.
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.''
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.
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.''
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.
Sorry. Sounds more like a lecture than anything else, but I
do not mean it that way. That is my frustration.
Chairman Leahy. Senator Ashcroft, do you wish to respond?
Obviously, you have time to.
Senator Ashcroft. Well, thank you very much.
First of all, I want the make very clear that I repudiate
racist organizations and racist ideas, racist views.
Senator Biden. Is the Southern Partisan Magazine racist, in
your opinion?
Senator 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.
Senator 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?''
Senator Ashcroft. No.
Senator Biden. What more do you need to know?
Senator 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--
Senator 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.
Senator Ashcroft. Well, I'm not--that's not my purpose. Let
me express to you that I believe that racism is wrong.
Senator Biden. I know you do.
Senator 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.
Senator 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.
Chairman Leahy. Gentlemen.
Senator Biden. I have spoken too much.
Chairman Leahy. Did you have further?
Senator 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.
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.
Chairman 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?
Senator 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.
Chairman 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.
With that, I will turn to the Senator from New Hampshire,
Mr. Smith.
Senator 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?
Chairman Leahy. You have not had a chance?
Senator Smith. No.
Chairman Leahy. Then you have 15 minutes.
Senator Smith. Thank you, Mr. Chairman.
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.
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.
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.''
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.
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.
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.
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.
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.
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.
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.''
``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.''
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.
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.
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?
Senator Durbin. Mr. Chairman? Mr. Chairman?
Senator Kennedy. [Presiding] Yes?
Senator 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.''
Senator 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.
Senator Kennedy. Both letters will be included as part of
the record.
Senator 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.
Senator Kennedy. They will be so included.
Senator Smith. Thank you, Mr. Chairman. I yield my
remaining time to Senator Specter.
Senator Specter. How much time remains for Senator Smith?
Chairman Leahy. 4 minutes and 30 seconds.
Senator Specter. With a little extra time, Senator
Ashcroft, I would be glad to oblige.
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?
Senator Ashcroft. I am happy to respond to that. Thank you.
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.
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.
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.
Let me address the special counsel item which you have
raised.
Senator 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.
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.
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.
What would your thinking be on such a procedure to review
the Attorney General's discretion?
Senator 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.
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.
Senator Specter. Let me explore it with you when my next
round comes.
Chairman 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.
Senator 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.
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.
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.
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.
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?
Senator 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.
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.
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.
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.
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.
Senator 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.
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.
Senator 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.
Senator 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.
Senator Ashcroft. I'll be happy to work to provide you with
additional information on that.
Senator Cantwell. Thank you.
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.
Are your personal views opposed to family planning?
Senator Ashcroft. I think individuals who want to plan
their families have every right to do so.
Senator Cantwell. In the use of contraception?
Senator Ashcroft. And I think individuals who want to use
contraceptives have every right to do so.
Senator Cantwell. So in regard--
Senator Ashcroft. I think that right is guaranteed by the
Constitution of the United States.
Senator 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.
Notwithstanding your personal opinion, will you defend
challenges to this law or initiate actions against employers
who fail to provide such coverage?
Senator 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.
Senator Cantwell. And is that something that you wouldn't
comment further on before your vote on nomination or just this
afternoon?
Senator 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.
Senator Cantwell. Yes, would you defend challenges to the
law or initiate action against employers who did discriminate--
Senator Ashcroft. I would defend challenges to the law and
seek to uphold the law.
Senator Cantwell. Including actions against employers who
failed to provide such coverage?
Senator 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.
Senator 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.
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.
Senator 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.
Senator 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.
Senator 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--
Senator 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.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
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.
Senator Brownback?
Senator 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.
Senator Ashcroft. Nor do I.
Senator Brownback. Very good.
Senator Ashcroft. I'll get that out as quickly as I can.
Senator 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--
Senator 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.
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.
Senator 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.
Chairman 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.
Senator Brownback. Thank you, Mr. Chairman.
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.''
I ask that be submitted into the record as well.
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.''
I submit that into the record as well.
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.
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.''
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.
Chairman Leahy. I would just note the light is back on and
it is at 3 minutes.
Senator Brownback. OK. Thank you.
I would appreciate your comments on what we should do about
meth labs and methamphetamine and its scourge on this country,
John.
Senator 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.
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.
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.
Our young people are only 25 percent of the population.
They are 100 percent of our future.
Senator 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.
Thank you, Mr. Chairman.
Chairman Leahy. 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.
[Recess from 4:10 p.m. to 4:42 p.m.]
Chairman Leahy. We will give a moment or two for everyone
to have a chance to come on in.
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.
I understand, Senator Hatch, everybody on your side has had
their initial--
Senator Hatch. That is right. Everybody has.
Chairman 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.
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.
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.''
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.
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.
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?
Senator 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.
He just addressed these issues as little bit since they--
Chairman 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?
Senator 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.
Chairman Leahy. He was your dean, was he not?
Senator Ashcroft. At the University of Chicago, he was an
assistant dean of the law school.
Chairman Leahy. OK.
Senator Ashcroft. 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--
Chairman Leahy. To what extent will the fact--
Senator Ashcroft.--Responsibilities.
Chairman 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?
Senator 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.
Chairman 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.
Senator 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.
Chairman 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.
Senator Ashcroft. I don't believe I put a hold on Mr.
Hormel's nomination.
Chairman Leahy. Never?
Senator Ashcroft. I don't believe I put a hold on Mr.
Hormel's nomination.
Chairman Leahy. If you find otherwise, feel free to correct
the record on that.
Senator Hatch?
Senator Hatch. 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?
Senator Ashcroft. That's correct.
Senator Hatch. I mean, we can disagree once in a while
around here--
Senator Ashcroft. I think that--
Senator Hatch.--Or do we just have to play the political
correctness game right on down the line?
Senator Ashcroft. Well, I made a judgment based on the
totality of the record. I am one of--
Senator Hatch. I accept that.
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?
Senator Ashcroft. That's my recollection.
Senator 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?
Senator Ashcroft. That's correct.
Senator Hatch. 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?
Senator 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.
Senator 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.
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?
Senator Ashcroft. Yes, it is true.
Senator 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?
Senator Ashcroft. I think it is fair to say that he has
been supported by Democrats. He is the Democrat Attorney
General of the State.
Senator Hatch. I don't blame him for that. I am just saying
that it just seems like kind of a double standard to me.
Senator 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--
Senator Hatch. All right.
Senator Ashcroft.--Of the Federal District Court and of the
Eighth Circuit Court of Appeals and of the United States
Supreme Court.
Senator 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.
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.
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.
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.
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?
Senator 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.
Senator Hatch. Well, thank you, Senator. My time is up.
Chairman Leahy. Senator Kennedy.
Senator Kennedy. Thank you very much.
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.
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.
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.
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.
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?
Senator 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.
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.
Senator Kennedy. 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--
Senator Ashcroft. Senator--
Senator Kennedy.--In these areas--
Senator 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.
Senator Kennedy. OK.
Senator Ashcroft. And I would just ask the Senate for the
right for me to respond.
Chairman Leahy. The Chair will give you whatever time you
need. I have said that a dozen times during this hearing.
Senator 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.
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.
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.
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.
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.
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.
Now, I defended the State of Missouri. I defended the State
of Missouri aggressively. That is the job of the Attorney
General.
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.
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.
Jay Nixon has done that as the Attorney General of
Missouri. I don't criticize him.
I'm sorry, Mr. Chairman. I have gone too long, and I
apologize, and I thank all of you for allowing me to respond.
Senator Kennedy. 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.
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--
Senator Ashcroft. Oh, I think that is a very good question.
I am very pleased to have a chance to answer that.
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.
Chairman 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.
I turn to the distinguished soon-to-be President pro tem.
Senator Thurmond. Thank you.
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.
Thank you.
Senator Ashcroft. Thank you, sir. I am grateful to you.
Senator Kennedy. [Presiding.] Senator Kohl?
Senator Kohl. Thank you very much.
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.
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.
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.''
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?
Senator 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.
As it related to the Firestone Tire case, I was active
following that because I don't think we have a good enough
clearinghouse for providing information about recalls. And I
would hope that the United States could find a way to take a
lead in providing, if nothing more than a clearinghouse so that
we could know when problems have emerged with products anywhere
in the world.
Senator 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--
Senator Ashcroft. Yes.
Senator Kohl. Just consider the impact on the public health
and safety before they agree to a gag order.
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.
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.
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?
Senator 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.
Senator 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?
Senator 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.
Senator Kohl. I thank you.
Senator Ashcroft. Thank you.
Chairman Leahy. The senior Senator from Pennsylvania.
Senator Specter. Thank you, Mr. Chairman.
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.
Senator Ashcroft. I'd be happy to do so.
Senator 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.
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.
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.
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.
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.
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.
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?
Senator 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.
Senator Specter. And a Senator.
Senator 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.
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.
I offer myself fully to confer with you about that and to
find a way to resolve these issues.
Senator Specter. Thank you.
Chairman Leahy. The Senator from Wisconsin, Senator
Feingold.
Senator Feingold. Thank you, Mr. Chairman.
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.''
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.
If confirmed as Attorney General, would you continue and
enforce this policy of non-discrimination based on sexual
orientation?
Senator Ashcroft. As Attorney General, I will not make
sexual orientation a matter to be considered in hiring or
firing in that matter.
Senator Feingold. So you will continue that policy?
Senator 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.
Senator 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?
Senator Ashcroft. It would be my intention not to
discriminate against any group that appropriately was
constituted in the Department of Justice.
Senator 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?
Senator 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.
Senator Feingold. I respect that and hope the conclusion
will be consistent with your earlier answers.
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.
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''?
Senator 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.
Senator 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?
Senator 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--
Senator Feingold. But you don't consider the First
Amendment vague on the point of the separation of church and--
Senator 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.
Senator Feingold. I thank you for that clarification. I
think my time is up. Thank you, Mr. Chairman.
Chairman Leahy. The Senator from Arizona.
Senator 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.
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.
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.
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.
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?
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?
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.
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.
Senator Ashcroft. Well, I thank the Senator. I really
believe my record is a record of operating to enforce the law
as Attorney--
Senator Thurmond. Speak in your loud speaker.
Senator 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.
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.
Senator Kyl. Thank you.
Chairman Leahy. The senior Senator from New York.
Senator Schumer. Thank you, Mr. Chairman. And thank you for
your cooperation, Senator Ashcroft. It has been a long day.
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.
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?
Senator 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.
Senator 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?
Senator 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.
Senator Schumer. OK. But we could take it, given your
previous statements, that you would fully enforce the Hate
Crimes Act.
Senator Ashcroft. I would fully enforce the Hate Crimes Act
were it to be passed, and--
Senator Schumer. A few acts--the Statistics Act has been
passed already.
Senator Ashcroft. Yes, OK.
Senator Schumer. I was the author of it.
Senator Ashcroft. All right. Yes, sir.
Senator 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?
Senator Ashcroft. From what I know about the Act now, I
believe it to be constitutional. I would defend it--
Senator Schumer. How about--
Senator 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.
Senator Schumer. But you wouldn't urge him to veto it on
any constitutional or legal or moral basis?
Senator Ashcroft. Based on what I know now, I would not.
Senator 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.
Senator Ashcroft. That's regarding the denial of cert of
that specific challenge--
Senator 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--
Senator Ashcroft. I stand by my answer from this morning.
Senator 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?
Senator 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--
Senator Schumer. Correct.
Senator Ashcroft.--What would my advice be to the
President?
Senator Schumer. Correct. It passed both Houses. He has to
sign it or veto it.
Senator 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.
Senator 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?
Senator 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--
Senator Schumer. But the Supreme Court's ruling was a
Federal ruling, sir.
Senator Ashcroft. Yes, it was, but--
Senator 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.
Senator 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.
Senator Schumer. Correct.
Senator Ashcroft. And I will tell the President that.
Senator 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.
Senator Ashcroft. Well, nothing prevents me from saying it,
and I believe the Nebraska law has been clearly ruled
unconstitutional.
Senator Schumer. Correct.
Senator 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.
Senator Schumer. So you would tell the President it's
unconstitutional?
Senator 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.
Senator Schumer. Thank you for your indulgence of a little
extra time, Mr. Chairman.
Chairman Leahy. And I will certainly offer the Senator from
Ohio the same amount of extra time. The Senator from Ohio?
Senator DeWine. Mr. Chairman, thank you very much. Senator
Ashcroft, thank you.
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.
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.
Senator 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.
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.
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.
Senator DeWine. Senator, thank you very much. Mr. Chairman,
thank you.
Senator Kennedy. [Presiding.] Senator Durbin?
Senator Durbin. Thank you very much.
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.
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.
Senator 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.
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.
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--
Senator 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.
Senator 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.
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.
Senator 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?
Senator 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.
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.
Senator 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?
Senator 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.
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.
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.
Chairman Leahy. So are you equating Bob Jones with the
Catholic Church, Senator?
Senator Ashcroft. Obviously not. And I thank you for
clarifying that. Throughout this hearing you have helped me
clarify things that were important.
Chairman Leahy. The Senator from Alabama.
Senator 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.
Chairman 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.
Senator Sessions. Well, if that was the spirit, I will
apologize for my error.
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.
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.
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.
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?
Senator Ashcroft. In the courts, the Attorney General
represents the interests of the States--State.
Senator Sessions. You speak for the legal interests of the
State.
Senator 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.
Senator 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.
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?
Senator Ashcroft. No, I think in general that correctly
states the law.
Senator Sessions. So the point--
Senator Ashcroft. You know, it has been a while since I was
Attorney General.
Senator Sessions. Well, I had this.
Senator Ashcroft. That was in 1984, I ceased that role.
Senator 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.
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.
Is my time out? I guess it is, Mr. Chairman. I apologize.
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.
My time is up.
Chairman Leahy. Is the Senator from Alabama finished?
Senator Sessions. Yes.
Chairman Leahy. The distinguished senior Senator from
California.
Senator Feinstein. Thank you very much, Mr. Chairman.
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?
Senator 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.
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.
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.
Senator Feinstein. Do you have reason to believe that they
are no longer anti-Catholic?
Senator Ashcroft. No. I don't know whether they are
abandoning or changing or modifying their position.
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.
Senator 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.
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.
Senator 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.
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.
Senator Feinstein. Thank you.
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.
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?
Senator 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.
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.
Senator 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.
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.
As Attorney General, would you support felons obtaining
this so-called ``relief from disability'' so they could buy
guns despite their felony convictions?
Senator Ashcroft. Thank you, Senator.
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--
Senator Feinstein. No, I understand. My question is a very
simple one.
Senator Ashcroft. Yes, I understand that, and let me
address that.
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.
Senator 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.
Senator Ashcroft. Keeping guns out of the hands of felons
is a top priority of mine, and it would be as Attorney General.
Senator Feinstein. So the answer is yes, you would be
supportive?
Senator Ashcroft. Yes. I think that's--yes, it is.
Senator Feinstein. Let me ask another gun question, if I
may.
Chairman Leahy. The Senator's time--
Senator Feinstein. Oh, it is? I apologize. Thank you very
much, Mr. Chairman.
Chairman Leahy. The Senator from Kansas.
Senator Brownback. Thank you, Mr. Chairman.
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.
Chairman Leahy. Without objection.
Senator Brownback. I think that pretty well wraps up the
topics.
Thank you, Mr. Chairman. I would like to yield some time to
my colleague, Senator Kyl.
Senator Kyl. No. No, I don't.
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.
Chairman Leahy. Yes.
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.
The Senator from Kansas, is that it?
Senator Brownback. That is sufficient for me.
Chairman 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.
Senator Feinstein. Mr. Chairman, may I submit some
amendments--or some questions to be answered in writing?
Chairman Leahy. Yes. The Senator from California may, of
course.
If nobody else has any submissions, the Senator from
Washington--
Senator Kennedy. 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.
Chairman Leahy. Do you want to use it now, or do you want
to--
Senator Cantwell. I yield to the Senator. I yield.
Senator Kennedy. I'll do whatever. Oh, I'm sorry. Excuse
me. I apologize.
Chairman Leahy. Why don't we have the Senator from
Washington State--
Senator Kennedy. I apologize.
Chairman Leahy.--And then the Senator from Massachusetts.
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.
Senator Cantwell?
Senator Cantwell. Thank you, Mr. Chairman.
Senator Ashcroft, thank you for your patients and
fortitude.
Senator Hatch. Excuse me. Could I ask one question? Are we
coming back to re-question Senator Ashcroft, or will that be it
for him?
Chairman Leahy. Well, I have got a couple of questions. I
mean, I would be happy--
Senator Hatch. Well, why don't we finish the questions.
Chairman 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.
Senator Cantwell. Thank you.
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.
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.
Senator Ashcroft. Maybe I need to be refreshed, and I am
very sorry, but I don't understand what you are talking about.
Senator Cantwell. OK. The roadless area policy--
Senator Ashcroft. Oh, roadless area. OK.
Senator 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--
Senator 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.
Senator Cantwell. OK.
Senator Ashcroft. But I am not familiar with them.
Senator 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--
Senator 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--
Senator Cantwell. Yes.
Senator Ashcroft.--And I don't want to do that, Senator.
Senator 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.
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.
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?
Senator 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.
Senator Cantwell. Even if the President might be seeking a
new administrative overturn of that?
Senator Ashcroft. I think if the President wants to change
the law, he has to follow the law in order to do so.
Senator Cantwell. OK.
Senator Ashcroft. 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.
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.
Senator Cantwell. Thank you very much. Thank you.
Chairman Leahy. Thank you.
Senator Kennedy who has reserved the time of Senator Biden.
Senator Kennedy. I will tell my good friend, Senator
Sessions, that if Jay Nixon was nominated, I would be asking
him the same questions.
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.
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.
Senator Ashcroft. I believe these are all enactments of the
Congress signed by the President, laws of the United States
that are under attack.
Senator Kennedy. Good, OK.
Senator Ashcroft. I would expect to defend those
vigorously.
Senator Kennedy. Good. Thank you.
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.
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.
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?
Senator 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.
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.
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.
Senator Kennedy. 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.
Senator Ashcroft. Well, suffice it to say--
Senator Kennedy. 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.
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.
Thank you. Thank you, Mr. Chairman.
Senator Hatch. I think our side is about wrapped up, at
least I hope so, and I hope yours is, too.
Chairman 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.
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.
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.
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.
In March, Bob Jones made clear on national TV that he views
the Pope as the antichrist and both Catholicism and Mormons as
cults.
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.
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.
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.''
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.''
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.
How do you feel about that speech today?
Senator 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.
Chairman 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?
Senator Ashcroft. I don't think it will appear in any
briefs.
[Laughter.]
Chairman 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?
Senator Specter. Thank you, Mr. Chairman.
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.
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.
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.
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.
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.
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.
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.
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?
Senator Ashcroft. While I see the time is up, let me just
briefly say that--
Chairman Leahy. I think the Senator from Pennsylvania has
asked a very good question, so certainly take the time to
answer.
Senator 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.
Senator Ashcroft. Let me just say thank you for the
question. I'm delighted to respond to the question.
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.
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.
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.
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.
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.
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.
Chairman 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.
[Recess from 6:38 p.m. to 7:44 p.m.]
Chairman 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.
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.
Senator Hatch?
Senator Hatch. 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.
Now, it is my understanding, Mr. Chairman, that we will
proceed with whoever is here tonight congressionally.
Chairman Leahy. That is right.
Senator Hatch. 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.
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.
Senator Specter. Mr. Chairman?
Chairman Leahy. Yes?
Senator 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.
Senator 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.
Senator Durbin. Mr. Chairman?
Chairman Leahy. Yes.
Senator Durbin. 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.
Senator 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.
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.
Chairman 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.
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.
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.
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--
Senator Specter. Mr. Chairman, did you say you are putting
the letter in the record?
Chairman Leahy. Yes.
Senator Specter. 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.
Chairman Leahy. Well, the letter was given to the press. I
heard about it after he gave it to the press.
Senator 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.''
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.
Chairman Leahy. Well, the incoming Chairman, of course,
would have that opportunity.
Senator Hatch. I do not intend to do that, but let me just
bring this to closure because we have to go to our next--
Senator Kyl. Mr. Chairman, I still have not been recognized
on this point, and I would like to be as a member of the
Committee.
Senator 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.
Chairman 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--
Senator Hatch. Well, neither is Justice White.
Chairman 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.
Senator Hatch. Will he be on his own panel?
Chairman 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--
Senator 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.
Chairman 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.
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.
And I yield to the Senator from Arizona.
Senator 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.
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.
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.
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.
Chairman 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.
If Congressman Hulshof is that concerned about appearing
with his colleagues from the House, we can arrange a time.
Senator Kyl. That is not what we are asking.
Chairman 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.
Senator 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.
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--
Chairman 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--
Senator Hatch. We were prepared.
Chairman 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.
Congresswoman Waters.
STATEMENT OF HON. MAXINE WATERS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Representative 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.
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.
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.
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.
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.
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.
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.
I was in St. Louis 4 years ago during an election where
there was disenfranchisement, and I called the Justice
Department from there.
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.
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.
I would be happy to answer any questions you may have.
Chairman 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.
Congresswoman, go ahead.
STATEMENT OF HON. SHEILA JACKSON LEE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
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.
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.''
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.
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.
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.
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.
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.
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.
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.''
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
I thank the Committee for their kindness and the
opportunity to make my testimony this evening.
Chairman 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.
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.
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.
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.
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.''
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.
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.
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.
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.
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.
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.
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?
The Senator from Utah.
Senator 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.
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.
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.
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.
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.
Chairman Leahy. Senator Durbin?
Senator Durbin. Thank you, Mr. Chairman.
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.
And, Congresswoman Waters, I grew up across the river in
East St. Louis, and so we come from similar backgrounds.
And, Congresswoman Jackson Lee, thank you, too, for being
here.
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.
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.
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.
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.
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.
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.
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.
Thank you both for being here. Your testimony makes a big
difference.
Chairman Leahy. The Senator from Pennsylvania.
Senator Specter. Thank you very much, Mr. Chairman. Just a
word or two.
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.
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.
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.
Thank you.
Representative Jackson Lee. Thank you, Senator.
Chairman Leahy. I thank the Senator from Pennsylvania.
The senior Senator from New York.
Senator 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.
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.
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.
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.
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.
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.
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.
Representative 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.
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.
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.
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.
Now, when you talk about the insensitivity, it could be
described as that. But, you know, there is something called
1,000 nicks.
Chairman Leahy. What?
Representative 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.
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.
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.
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.
It does not ring true. It does not ring true.
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.
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.
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.
Representative Jackson Lee. Would the Chairman allow me
to--
Chairman Leahy. Of course.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Chairman Leahy. Thank you.
The senior Senator from Ohio.
Senator DeWine. Thank you, Mr. Chairman.
I just want to thank our witnesses for their patience
today, and I appreciate their testimony. I don't have any
questions.
Chairman Leahy. The Senator from Alabama.
Senator 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.
Chairman Leahy. Unless there are further questions, we will
stand in recess until 9:30 in the morning.
Representative Jackson Lee. Thank you so very much.
[Whereupon, at 9 p.m., the Committee was recessed, to
reconvene at 9:30 a.m., Thursday, January 18, 2001.]
NOMINATION OF JOHN ASHCROFT TO BE ATTORNEY GENERAL OF THE UNITED STATES
----------
THURSDAY, JANUARY 18, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
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.
Present: Senators Leahy, Kennedy, Kohl, Feinstein,
Feingold, Schumer, Durbin, Cantwell, Hatch, Thurmond, Specter,
Kyl, DeWine, Sessions, Smith, and Brownback.
Chairman Leahy. The Committee will be in order. I would
urge those who are attending to please take their seats.
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.
We will hear your testimony, but first did you have
anything you wanted to add?
Senator Hatch. No. I am happy to just proceed. Thank you.
Chairman 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.
STATEMENT OF HON. RONNIE WHITE, JUDGE, MISSOURI SUPREME COURT,
JEFFERSON CITY, MISSOURI
Judge 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.
I appreciate this opportunity to tell my story to the U.S.
Senate and to reclaim my reputation as a judge and a lawyer.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.''
I deeply resent those baseless misrepresentations. In
fact--and I want to say this as clearly as I can--my record
belies those accusations.
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.
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.
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.
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.
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.
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.
Thank you for giving me the opportunity to testify today,
and I will be pleased to take any questions you may have.
[The prepared statement of Judge White follows:]
Statement of Hon. Ronnie White, Judge, Missouri Supreme Court,
Jefferson City, Missouri
Thank you Chairman Leahy, Senator Hatch and all of the members of
the Judiciary Committee for inviting me to testify today. Thank you for
twice voting in favor of my nomination to the Federal District Court,
in 1998 and 1999.
I appreciate this opportunity to tell my story to the United States
Senate. And to reclaim my reputation as a lawyer and a judge.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.''
I deeply resent those baseless misrepresentations. In fact--and I
want to say this as clearly as I can--my record belies these
accusations.
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.
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.
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.
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.
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.
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.
Thank you for giving me the opportunity to testify today. I will be
happy to take any questions that you may have.
Chairman Leahy. Thank you, Judge.
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.
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.
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.''
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?
Judge White. That is correct.
Chairman Leahy. And do you recall what happened in that
incident?
Judge 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?
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.
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.
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.
Chairman Leahy. So the sponsor of the bill, which then-
Governor Ashcroft supported, as I understand--
Judge White. I believe that is correct.
Chairman 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?
Judge 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.
Chairman Leahy. Judge White, you serve on the bench with a
number of justices who were appointed by then-Governor
Ashcroft. Is that correct?
Judge White. That is correct.
Chairman Leahy. 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?
Judge 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.
Chairman 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?
Judge White. Well, not really, because there is not that
much variation on those death penalty cases.
Chairman 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?
Judge 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.
Chairman 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.
Judge White. I believe so.
Chairman Leahy. Thank you.
Senator Hatch. Justice White, welcome to the Committee. We
are happy to have you back before the Committee.
Judge White. Thank you, Senator.
Senator Hatch. 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.
Senator Feinstein. We can't hear.
Chairman Leahy. They can't hear you, Orrin.
Senator Hatch. I think they can. I will just do my best.
I just have two questions--
Chairman Leahy. Senator Feinstein can't hear you.
Senator Hatch. Oh, you can't hear?
Senator Feinstein. It is hard to hear back here.
Chairman Leahy. I don't know if we are having trouble with
the sound system.
Senator Hatch. I don't know how to make it work any better,
but--
Chairman Leahy. Boost it up a bit.
Senator 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?
Judge White. To my knowledge, he did not.
Senator 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?
Judge 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.
Senator 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.
Judge White. Thank you, Senator.
Chairman Leahy. Senator Kennedy?
Senator Kennedy. 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.
Let me ask you, did Senator Ashcroft ever raise these
issues with you prior to the vote in 1999?
Judge White. No, he did not, Senator.
Senator Kennedy. 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?
Judge 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.
Senator Kennedy. 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?
Judge 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.
Senator Kennedy. 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.
Judge 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.
Senator Kennedy. 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.
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.
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.
Mr. Chairman, I have no further questions.
Judge White. Thank you, Senator.
Chairman Leahy. Thank you very much.
The senior Senator from Pennsylvania.
Senator Specter. Is it appropriate to call you ``judge'' or
``justice''?
Judge White. It is ``judge,'' Senator.
Senator Specter. ``Judge''?
Judge White. But I will answer by either one.
Senator Specter. In Pennsylvania Supreme Court, those are
called ``justices,'' and in the lower courts, they are called
``judge.'' But they call you ``judge''?
Judge 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.''
Senator 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.
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.
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.
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.
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.
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?
Judge 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.
Senator 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.
He said people in the middle of the road are either
moderates or dead skunks.
OK on time?
Chairman Leahy. You are out of time, but go ahead and
finish your thought.
Senator Specter. OK. Well, I saw the red light on, but I
want to pursue this a bit.
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?
Judge 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.
Senator Specter. Well--
Chairman Leahy. Senator, we will go back with another
round.
Senator Specter. Let me just ask one more question at this
time.
Chairman Leahy. I will give extra time for that one, but
then the Senator from California will also have extra time.
Senator 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?
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?
Judge White. I think the facts of my situation show that
Senator Bond came before this Committee and spoke very highly
of me.
What happened between the time I was presented to the
Committee by Senator Bond and the vote was taken, I don't know.
Senator Specter. Thank you. Thank you.
Chairman Leahy. The Senator from California.
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.
Go ahead.
Senator Feinstein. Thank you very much, Mr. Chairman.
Judge White, good morning.
Judge White. Good morning.
Senator 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.
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.
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.
Judge White. Thank you, Senator.
Senator Feinstein. 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.
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?
Judge White. Senator, I don't have the numbers in front of
me, but I don't believe that that's correct.
Senator Feinstein. Well, I do have the numbers. Let me just
find them here. I have the percentages.
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.
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?
Judge 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.
Senator 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?
Judge 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?
Senator Feinstein. Please do.
Judge 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.
Senator Feinstein. I believe my time is up. Thank you, Mr.
Chairman.
Chairman Leahy. The Senator from Arizona, Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
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.
Judge White. Thank you, Senator.
Senator Kyl. 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?
Judge White. Thank you, Senator.
Senator Kyl. Would it not also say anything about the
Governor who appointed the first African-American to the
Missouri Court of Appeals?
Judge White. Possible, yes.
Senator 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.
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.
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.
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.
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.
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.
Judge White. Thank you.
Chairman Leahy. I understand the Senator from Wisconsin
does not have questions.
Then we will go to the senior Senator from New York.
Senator Schumer. Thank you, Mr. Chairman, and thank you,
Judge White.
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.
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.
Judge 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.
Senator 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?
Judge 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.
Senator 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.
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.
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.
Judge 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.
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.
Senator Schumer. Do you think there was a feeling that a
double standard was used in opposing your nomination?
Judge White. Yes.
Senator Schumer. 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?
Judge 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.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
The senior Senator from Ohio, Senator DeWine.
Senator DeWine. Mr. Chairman, thank you very much.
Judge White, thank you very much for coming in. We very
much appreciate your testimony, and, Mr. Chairman, I do not
have any questions.
Judge White. Thank you, Senator.
Chairman Leahy. Thank you.
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.
Senator 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.
Chairman Leahy. Thank you.
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.
We would then go to the senior Senator from Illinois,
Senator Durbin.
Senator Durbin. Thank you very much, Mr. Chairman, and,
Judge White, thank you for joining us.
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.
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.
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.
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.
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.
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?
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?
Judge White. That is not true that I was opposed to law
enforcement.
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.
Senator 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.
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.
Judge 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.
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.
Senator Durbin. Did you call for his release in your
dissent?
Judge 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.
Senator 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.
Judge White. Thank you, Senator.
Senator Durbin. Thank you.
Chairman Leahy. The Senator from Alabama, Senator Sessions.
Senator 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.
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.
Judge White. No, Senator Sessions, I am not bitter at all.
Senator Sessions. You have got a great career. You have had
a good career, and we validate that.
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.
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.
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.
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.
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?
Judge White. I can understand his approach, but I can't
understand his distortion of my record.
Senator 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?
Judge White. No, he was not censured.
Senator 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.
Would you like to comment on that?
Judge 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.
Senator 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.
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.
You dissented, I believe, that procedure was unfair because
the highway traveller would be tricked. That troubled me.
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?
Judge 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.
Senator 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.
Chairman Leahy. Could I--
Senator Sessions. I don't think they were--
Judge 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.
Senator Sessions. My view was they just simply put on a
defense that was proven unfounded, and the jury found--
Chairman 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.
The Senator from Wisconsin, Senator Feingold.
Senator Feingold. Thank you very much, Mr. Chairman.
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.
Judge White. Thank you.
Senator Feingold. 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.
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.
Senator Sessions. Mr. Chairman, may I correct myself?
Chairman Leahy. Yes.
Senator Sessions. I think insensitive--I meant to say
insensitive at worst. They were very bad comments that--
Senator Feingold. Excuse me. I should have said--I stand
corrected.
Senator Sessions.--Were subject to possible censure, and I
did misspeak.
Senator Feingold. You said they were insensitive at worst.
I think they go--
Senator Sessions. I didn't say that, and I apologize--
Senator Feingold. I think they go well beyond that.
Senator Sessions.--For being inaccurate.
Senator Feingold. Mr. Chairman?
Chairman Leahy. Yes.
Senator Feingold. My apology for getting that wrong.
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.
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.
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.
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.
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.
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?
Judge 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.
Senator Feingold. Thank you again, and thank you, Mr.
Chairman.
Chairman Leahy. Thank you, Senator Feingold.
The Senator from Kansas, Senator Brownback.
Senator Brownback. Thank you, Mr. Chairman, and welcome,
Justice White. We are delighted to have you here at the
Committee.
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.
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.
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.
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.
Thank you for being here today.
Mr. Chairman, I have no questions.
Chairman Leahy. Thank you, Senator.
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.''
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.
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.
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.''
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.
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.
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.
Judge White. Thank you, Senator.
Senator Hatch. If I could just add one comment myself.
Judge White, I called you ``Justice White.'' As far as I am
concerned, that is good enough.
Judge White. That is fine.
Senator Hatch. Both are good.
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--
Judge White. Thank you.
Senator Hatch.--And let you know that I respect you for it,
and I appreciate you being here and accept your testimony.
That is it.
Judge White. Thank you, Senator Hatch.
Chairman Leahy. There are no further questions. The
Committee will--
Senator Specter. Mr. Chairman?
Chairman Leahy. I'm sorry.
Senator Specter. Are we going to have a second round?
Chairman Leahy. I just asked the ranking member, and he
said he did not want any more.
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.
Thank you.
[Recess from 10:50 a.m. to 11:05 a.m.]
Chairman 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.
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.
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.
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.
So, Judge Robertson, we will start with you and move from
my right to the left.
STATEMENT OF EDWARD D. ROBERTSON, JR., ESQ., ATTORNEY,
BARTIMUS, FRICKLETON, ROBERTSON & OBETZ, FORMER JUSTICE OF
MISSOURI SUPREME COURT
Mr. Robertson. Thank you, Mr. Chairman.
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.
I appear before you today to speak on behalf of John
Ashcroft's nomination to become Attorney General of the United
States.
Chairman Leahy. Would you pull the microphone just a little
bit closer, please, Mr. Robertson?
Mr. Robertson. Yes, sir.
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.
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.
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.
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.
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.
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.
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.
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.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Robertson follows:]
Statement of Edward D. Robertson, Jr., Lawyer, Bartimus, Frickleton,
Robertson & Obetz, Kansas City and Jefferson City, Missouri
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 with offices in Kansas City and Jefferson City,
Missouri.
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.
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.''
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.
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.
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.
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.
I do not intend to take much more of the Committee's time with
these prepared remarks.
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.
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.
Chairman Leahy. Thank you very much.
Ms. Woods?
STATEMENT OF HARRIET WOODS, FORMER LIEUTENANT GOVERNOR OF
MISSOURI, ST. LOUIS, MISSOURI
Ms. Woods. 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?''
I have listened to these hearings and heard him say that he
will conform to Roe v. Wade, he will support mandatory trigger
locks.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.''
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.
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.
[The prepared statement of Ms. Woods follows:]
statement of harriett woods, former lieutenant governor of missouri
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.
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.''
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.
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.
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.
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.''
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.
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?
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
Chairman Leahy. Thank you.
Mr. Hunter?
STATEMENT OF JERRY HUNTER, ESQ., FORMER LABOR SECRETARY OF
MISSOURI, ST. LOUIS, MISSOURI
Mr. Hunter. 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.
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.
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.
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.
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.
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.
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, 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.
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 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.
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.
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.
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.
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.
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.''
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.
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.
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.
Thank you, Mr. Chairman, and I would be happy to respond to
any questions.
[The prepared statement of Mr. Hunter follows:]
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
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.
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.
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. . . .
[T]he appointment that you have just made, and your track record
for appointing women and minorities, are certainly positive indicators
of your progressive sense of fairness and equity. We commend you. . .''
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.
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.''
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.
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.
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.
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
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.
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.
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.
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.
Chairman 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.
Senator Hatch. We are hoping by late tonight to get this
hearing over, and there is no reason--
Chairman 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.
Senator Hatch. We know how hard you work, Senator, and we
know you are willing to--
Chairman Leahy. But I don't want to interfere with the
President-elect and Ricky Martin.
Senator Hatch. Well, I do if it is going to put us into
tomorrow--
Chairman Leahy. You think the show here is better than
Ricky?
Senator Hatch. This is a good show.
Chairman Leahy. All right. Mr. Susman, please go ahead.
Mr. Susman. If you would be kind enough to reset the clock,
I will--
Chairman Leahy. I am looking at the clock myself, and I am
saying--here we go. Well, it is almost there. Go ahead.
STATEMENT OF FRANK SUSMAN, ESQ., ATTORNEY, GALLOP, JOHNSON, AND
NEUMAN, L.C., ST. LOUIS, MISSOURI
Mr. 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.
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.
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.
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.
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.
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.
History is, indeed, a reliable precursor of the future.
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.
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.
As directly related to the case of Sermchief v. Gonzales,
filed by impacted physicians and nurses, these nursing
activities were being provided in federally designated low-
income counties, in which there was not a single physician who
accepted as Medicaid-eligible women patients for prenatal care
and childbirth because of the low-fee reimbursement schedules
established by the State of Missouri.
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.
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.
In Sermchief, a unanimous Missouri Supreme Court struck
down the nominee's interpretation of the Nursing Practice Act.
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.
The nominee vigorously opposed the Snowe-Reid amendment to
the Federal Health Benefits Plan, seeking to extend Federal
health care coverage to include contraceptives.
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.
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.
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.
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.
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.
Thank you.
[The prepared statement of Mr. Susman follows:]
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.
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.
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.
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.
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.
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.
History is, indeed, a reliable precursor of the future.
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.
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.
As directly related to the case of Sermchief v. Gonzales, 660
S.W.2d 683 (Mo. banc 1983), filed by impacted physicians and nurses,
these nursing activities were being provided in federally designated
low income counties, in which there was not a single physician who
accepted as Medicaid eligible women patients for pre-natal care and
childbirth, because of the low fee reimbursement schedules established
by the State of Missouri.
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.
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.
In Sermchief, an unanimous Missouri Supreme Court struck down the
nominee's interpretation of the Nursing Practice Act.
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.
The nominee vigorously opposed the Snowe/Reid amendment to the
federal health benefits plan, seeking to extend federal health care
coverage to include contraceptives.
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.
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.
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.
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.
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.
Chairman Leahy. Ms. Michelman, we welcome you to this
Committee. You have been a witness here before, and we
appreciate having you here today.
STATEMENT OF KATE MICHELMAN, PRESIDENT, NARAL, WASHINGTON, D.C.
Ms. Michelman. Thank you, Mr. Chairman, Senator Hatch, and
members of the Committee. I appreciate the invitation to
testify--
Chairman Leahy. Pull the microphone just a little bit
closer, would you, please?
Ms. Michelman. Sorry.
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.
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.
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.
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.
I will discuss our opposition to this nomination in the
context of three dominant themes:
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.
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.
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.
John Ashcroft's record includes the following, and I will
note some of those that have already been mentioned:
He cosponsored the Human Life Act which would have
virtually outlawed all abortions and common contraceptive
methods like birth control pills.
In his support for banning abortion procedures, he has
called preserving the woman's life ``rhetorical nonsense.''
As Attorney General, he tried to stop nurses from providing
contraceptive services, an effort the State Supreme Court
unanimously rejected.
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.
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.
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.
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.
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.
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.
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.
Thank you.
[The prepared statement of Ms. Michelman follows:]
Statement of Kate Michelman, President of NARAL, Washington, DC
Thank you, Senator Leahy and Members of the Committee, for inviting
me to testify. Almost ten years ago before this Committee, I spoke of
my experience as a struggling young mother of three, again pregnant by
the husband who had abandoned my family and me. I testified as a woman
forced to endure humiliating interrogation by a hospital committee and
confronted with laws that made abortion a crime.
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.
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.
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.
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.
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.
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.
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.
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
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.
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
------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\1\ Reproductive Health Services v. Freeman, 614 F.2d 585 (8th
Cir.), vacated, 449 U.S.
---------------------------------------------------------------------------
Ashcroft defended a 1974 Missouri law requiring physicians
under pain of criminal penalties to inform women seeking an abortion
that if the infant is delivered alive, it will become a ward of the
state. The Supreme Court affirmed a decision that struck down the
law.\2\
---------------------------------------------------------------------------
\2\ Ashcroft v. Freiman, 440 U.S. 941 (1979); Morton Mintz, Mo.
Seeking Review of its Ward-of-State Abortion Law Clause, WASHINGTON
POST, Mar. 4, 1979, A7. 3
---------------------------------------------------------------------------
Ashcroft brought suit against the National Organization
for Women (NOW) for exercising their first amendment right to sponsor a
boycott of states that had not ratified the Equal Rights Amendment
(ERA), alleging that the organization had violated federal anti-trust
laws. So entrenched was his opposition to the ERA that Ashcroft
appealed the case all the way to the U.S. Supreme Court.\3\
---------------------------------------------------------------------------
\3\ Missouri v. National Organization for Women, 467 F.Supp. 289,
291 (W.D. Mo. 1979), aff'd, 620 F.2d 1301 (8 th Cir. 1980),
cert. denied, 449 U.S. 842 (1980).
---------------------------------------------------------------------------
1980
Ashcroft participated in an anti-abortion rally entitled
``Pilgrimage for Life'' in St. Louis, Missouri.\4\
---------------------------------------------------------------------------
\4\ Anti-Abortion Rally in St. Louis Draws Thousands, ASSOCIATED
PRESS, Oct. 27, 1980.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\5\ Bernard Weinraub, Senate Hearings on Abortion Close on
Emotional Note, NEW YORK TIMES, June 19, 1981, A16; Hearings on S. 158
Before the Subcomm. on Separation of Powers, Senate Comm. on the
Judiciary, 97 th Cong. 1105-1116 (1981) (statement of Att'y
Gen. John Ashcroft, Mo.).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\6\ Scott Kraft, Supreme Court Decision Hailed as ``Most
Significant in Decade'' ASSOCIATED PRESS, June 15, 1983; Planned
Parenthood Assoc. of Kansas City, Mo. v. Ashcroft, 462 U.S. 476 (1983).
---------------------------------------------------------------------------
As Attorney General, Ashcroft attempted to block nurses in
Missouri from providing basic gynecological services--including
providing oral contraceptives, condoms, and IUDs, and providing PAP
smears and testing for gonorrhea--by intervening on behalf of the
respondent in a Missouri Supreme Court case. The suit was based on an
Attorney General opinion by Ashcroft.\7\ According to Susan Hilton, who
was involved in the suit, if the medical board (known as the Board of
Registration for the Healing Arts) had been able to carry out its
threats against doctors who worked with nurse practitioners, it would
have stopped the delivery of health care in the family planning system
dead in its tracks.\8\
---------------------------------------------------------------------------
\7\ Sermchief v. Gonzales, 660 S.W.2d 683 (Nov. 22, 1983); Op.
Att'y Gen. No. 32 (Jan. 2, 1980).
\8\ Susan Hilton, Personal Communication with Elizabeth Cavendish,
Vice President of the NARAL Foundation and NARAL Legal Director (Jan.
10, 2001).
---------------------------------------------------------------------------
According to the Jefferson City News & Tribune, Ashcroft
told the Missouri Citizens for Life annual convention that ``he would
not stop until an amendment outlawing abortion is added to the
constitution.'' He said, ``Battles (for the unborn) are being waged in
courtrooms and state legislatures all over the country. We need every
arm, every shoulder and every hand we can find. I urge you to enlist
yourself in that fight.'' \9\
---------------------------------------------------------------------------
\9\ Ashcroft Urges Support for Right-to-Life Amendment, JEFFERSON
CITY NEWS & TRIBUNE, Mar. 1983.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\10\ Associated Press, Backers, Opponents of Court Decision Express
Views; Abortion Ruling Anniversary Observed, LOS ANGELES TIMES, Jan.
23, 1985, 12.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\11\ 1986 MO HB 1596; Christopher Ganschow, Missouri Limits Funds
for Abortions, CHICAGO TRIB., June 28, 1986, 3; Webster v. Reproductive
Health Services, 492 U.S. 490 (1989).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\12\ Office of the Governor, State of Missouri, Proclamation
Declaring January 22, 1989 a Day in Memoriam for Unborn Children (Jan.
17, 1989).
---------------------------------------------------------------------------
Immediately after the Webster decision, Ashcroft announced
that he ``would appoint a panel of legal and medical experts to
`consider further changes in Missouri's laws regulating abortion,'' '
including ``additional measures the state could enact within the
framework of [the Webster] decision.'' Ashcroft subsequently
established a Task Force for Mothers and Unborn Children consisting of
seven people tied to the anti-abortion movement and no obstetricians.
When asked whether he would appoint people who support abortion rights,
Ashcroft responded, ``It would not be appropriate to have groups that
recommend abortion on the panel.'' Task force member and Missouri
Citizens for Life leader Loretto Wagner commented, ``What did you
expect the governor to do? . . . The governor is very clear--he wants
to stop abortion. You're not going to put people on who will try to
scuttle that.'' In early 1990, the task force issued a report calling
on legislators to pass a law to challenge Roe v. Wade.'' \13\
---------------------------------------------------------------------------
\13\ State of Missouri, Task Force for Mothers & Unborn Children,
Final Report, Appendix C, p. 10 (Jan. 11, 1990); Virginia Young,
Abortion Panel's Report Less Forceful than Expected, ST. Louis POST-
DISPATCH, Jan. 14, 1990, 7C; Karen Ball, Missouri Law Won't Have Much
Impact on Availability of Abortions, ASSOCIATED PRESS, July 4, 1989;
Virginia Young, Abortion Task Force is Told to Work Fast, ST. Louis
POST-DISPATCH, Aug. 9, 1989, 1 C.
---------------------------------------------------------------------------
Governor Ashcroft described abortion as ``an atrocity against the
future.'' \14\
---------------------------------------------------------------------------
\14\ Sharon Cohen, Anti-Abortion Forces: ``Best Sign of Hope We've
Had in 16 Years,'' ASSOCIATED PRESS, Apr. 11, 1989.
---------------------------------------------------------------------------
Speaking at the National Right to Life Committee's annual
convention, Ashcroft said that abortions contributed to a ``vacuum of
values'' among American youth. ``What kind of signal are we as a
society sending them about the value of life? We need to send an
unmistakable message that there is a fundamental value in life itself .
. . . 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.'' \15\
---------------------------------------------------------------------------
\15\ Congressmen Warn Against Complacency In Anti-Abortion
Movement, ASSOCIATED PRESS, July 2, 1989.
---------------------------------------------------------------------------
Praising the U.S. Supreme Court decision in Webster,
Ashcroft commented, ``By beginning the dismemberment of Roe vs. Wade,
the Supreme Court gives the American people greater ability to save
innocent lives. That's something Missourians take very seriously.\16\
---------------------------------------------------------------------------
\16\ Lori Dodge, Abortion Clinic Officials Call Court Ruling an
``Outrage,'' ASSOCIATED PRESS, July 3, 1989.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\17\ Ethan Bronner, US States Face Flood of Bills on Abortion;
Aftermath of Webster Ruling, BOSTON GLOBE, Jan. 29, 1990, 1 P.
\18\ Jim Mosley, Ashcroft Would Ban 2nd Abortion,
Challenge All Others, ST. LOUIS-POST DISPATCH, Jan. 20, 1990, 1 A.
---------------------------------------------------------------------------
Ashcroft refused to intervene on behalf of activists who
were denied access to retail stores while seeking signatures for an
abortion rights ballot initiative, even though he personally requested
that the stores give special permission to petitioners for an ethics
initiative that Ashcroft sponsored.\19\
---------------------------------------------------------------------------
\19\ Mark Schlinkmann, Area Stores Bar Petitions on Abortion, ST.
LOUIS-POST DISPATCH, June 28, 1990, 3A.
---------------------------------------------------------------------------
Ashcroft vetoed nearly $1 million in appropriations for
Missouri's overburdened foster-care system, even though he supports
tight abortion restrictions, which make such care all the more
necessary.\20\
---------------------------------------------------------------------------
\20\ Marcee Frontenac, Missouri's Children Get Mixed Signal, ST.
Louis POST-DISPATCH, May 19, 1990, 313.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\21\ Virginia Young, Sponsor Shelves Anti-Abortion Bill, ST. LOUIS
POST-DISPATCH, May 1, 1991, 14A.
---------------------------------------------------------------------------
Ashcroft supported a bill that would have outlawed
abortions performed for 18 different reasons, including:
to prevent multiple births from the same pregnancy;
to prevent the loss or deferment of an educational or
employment opportunity;
because of nonuse or failure of birth control;
to avoid the expense or legal responsibility for
childbearing or rearing;
to prevent having a child not deemed to be wanted by the
woman or ``father'';
because of financial reasons;
because of cosmetic reasons;
because of a change in life-style or to maintain any
particular life-style;
to avoid single parenthood;
to avoid perceived damage to reputation;
to prevent the birth of a developmentally handicapped
child;
to avoid marital difficulty;
to limit family size; and
for a reason of social convenience.
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\
---------------------------------------------------------------------------
\22\ 1991 MO SB 339; Virginia Young, Key ``No'' Vote is Just One
Obstacle to Passing 1991 Anti-Abortion Bill, ST. LOUIS POST-DISPATCH,
Mar. 28, 1991, 1 C.
---------------------------------------------------------------------------
1992
Ashcroft refused to appropriate funds for family planning
services in Missouri beyond those required by federal law.\23\
---------------------------------------------------------------------------
\23\ Martha Shirk, Urban Families: How They Have Fared Under
Ashcroft, ST. LOUIS POST-DISPATCH, Mar. 1, 1992.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\24\ Missouri NARAL and Planned Parenthood of the St. Louis Region,
John Ashcroft Fact Sheet (on file with NARAL).
---------------------------------------------------------------------------
1995-Senator
During Senate debates on banning so-called ``partial-
birth'' abortion, Ashcroft called talk of preserving the woman's life
``rhetorical'' nonsense.\25\
---------------------------------------------------------------------------
\25\ Ellen Debenport, Senate Postpones Vote on Abortion, ST.
PETERSBURG TIMES, Nov. 9, 1995, 3A.
---------------------------------------------------------------------------
Ashcroft voted against the repeal of the discriminatory
Hyde amendment that bans Medicaid coverage for abortion services for
low-income women except in cases of rape, incest, or life
endangerment.\26\
---------------------------------------------------------------------------
\26\ Nickles motion to waive the Chafee point of order and Smith
motion to instruct Senate conferees to adopt House-passed language to
the Balanced Budget Reconciliation Act of 1995, S 1357, 10/27/95.
---------------------------------------------------------------------------
During the hearings for the nomination of Dr. Henry Foster
for Surgeon General, whose nomination never received a floor vote,
Ashcroft said, ``Very frankly, the optimal candidate for this
responsibility should not be someone who has committed abortions
because there is a large group of individuals in this country for whom
a person who has committed abortions cannot be a real leader.'' \27\
---------------------------------------------------------------------------
\27\ Keith White, GANNETT NEWS SERVICE, May 11, 1995; NARAL, 1995
Congressional Record on Choice.
---------------------------------------------------------------------------
1996
Ashcroft stated, ``Does my religious belief affect the way
I do politics and government? It affects virtually everything I do, I
hope.\28\
---------------------------------------------------------------------------
\28\ Deborah Mathis, Religion-But Not Religious Groups-Drive
Ashcroft, GANNETT NEWS SERVICE, July 17, 1996.
---------------------------------------------------------------------------
1997
As in 1995, Ashcroft again cosponsored legislation to
criminalize safe abortion procedures used prior to fetal viability.\29\
---------------------------------------------------------------------------
\29\ ``Partial-Birth'' Abortion Ban Act of 1997, S 6; ``Partial-
Birth'' Abortion Ban Act of 1995, S 939.
---------------------------------------------------------------------------
Ashcroft voted to ban access to abortion services except
in cases of rape, incest, or life endangerment for those enrolled in a
new children's health program, writing into permanent law for the first
time the discriminatory Hyde Amendment.\30\
---------------------------------------------------------------------------
\30\ Kerrey amendment to the Balanced Budget Act of 1997, S 947, 6/
25/97.
---------------------------------------------------------------------------
Ashcroft opposed the confirmation of Dr. David Satcher as
Surgeon General in part because Satcher opposed a ban on so-called
``partial-birth'' abortion. Ashcroft said, ``It is shocking that the
nominee for surgeon general . . . would associate himself with partial-
birth abortion . . . . In so doing, he chooses . . . barbarity over the
judgment of medicine.'' \31\
---------------------------------------------------------------------------
\31\ John Godfrey, Rush to Adjournment Precludes Satcher Vote; Lott
Expects Confirmation Next Year, WASHINGTON TIMES, Nov. 14, 1997, A12.
---------------------------------------------------------------------------
At a Christian Coalition convention, Ashcroft said, ``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.\32\
---------------------------------------------------------------------------
\32\ David Goldstein, Ashcroft Mixes Religion, Action in Pitch to
Christian Coalition, KANSAS CITY STAR, Sept. 14, 1997, A24.
---------------------------------------------------------------------------
In a speech on ``judicial despotism,'' Ashcroft said: \33\
---------------------------------------------------------------------------
\33\ Senator John Ashcroft, Speech to the Conservative Political
Action Conference Annual Meeting, ``On Judicial Despotism,'' Mar: 6,
1997, http://www.reagan.com/HotTopics.main/HotMike/document-
4.18.1997.6.html.
---------------------------------------------------------------------------
``[C]onsider 1992 when the court challenged God's ability
to mark when life begins and ends. Three Reagan appointees joined the
majority in Planned Parenthood of Southeastern Pennsylvania v. Casey to
uphold a `woman's right to choose.' So much for recapturing the court.
Together, Roe, Casey and their illegitimate progeny have occasioned the
slaughter of thirty-five million children, thirty-five million
innocents denied standing before the law.''
``As Judge Bork asserts, the abortion rulings represent
`nothing more than the decision of a Court majority to enlist on one
side of the culture war.'' '
1998
When asked, ``. . .[O]ne choice, cut taxes or outlaw
abortion-what would you do?'' Ashcroft replied, ``Outlaw abortion.''
\34\
---------------------------------------------------------------------------
\34\ Meet the Press (NBC television broadcast, Apr. 19, 1998).
---------------------------------------------------------------------------
Ashcroft, along with Senators Helms and Smith, cosponsored
a resolution calling for an amendment to the U.S. Constitution to ban
abortion even in cases of rape or incest.\35\ The amendment also would
outlaw several of the most common contraceptive methods.
---------------------------------------------------------------------------
\35\ SJ Res. 49, 1998.
---------------------------------------------------------------------------
Ashcroft co-signed a letter expressing opposition to a
Senate amendment to require that the Federal Employee Health Benefits
Plan (FEHBP) cover the cost of FDA-approved contraceptives, citing
concern that it would fund abortifacients.\36\
---------------------------------------------------------------------------
\36\ Letter signed by Senator John Ashcroft et al., to Senator Ben
Nighthorse Campbell, Subcomm. on Treasury, Postal Service and General
Government (Sept. 4, 1998) (on file with NARAL).
---------------------------------------------------------------------------
Ashcroft, along with Senators Helms and Smith, cosponsored
legislation that declares that life begins at fertilization and would
therefore outlaw abortion-as well as some of the most common
contraceptive methodsexcept in cases of life endangerment.\37\
---------------------------------------------------------------------------
\37\ Human Life Act of 1998, S 2135.
---------------------------------------------------------------------------
Ashcroft proposed the Putting Parents First Act of 1998,
which would require minors to obtain parental consent for abortion
referrals or contraceptives in any facility receiving federal
funds.\38\ In promoting the bill, Ashcroft said, ``When federal dollars
fund programs that provide children with contraceptives or refer them
to abortionists the critical role of parents must be recognized and
respected . . . . These critical life decisions are the business of
parents, not bureaucrats. Parents must not be reduced to the status of
mere bystanders when their children are facing these difficult
decisions. The law must put parents first.'' \39\ Ashcroft also stated,
``How disturbing that a child's only source of advice can be a
bureaucrat or abortion clinic employee.'' \40\
---------------------------------------------------------------------------
\38\ Putting Parents First Act of 1998, S. 2380.
\39\ Government Press Release, Federal Document Clearing House,
Ashcroft Proposal Affirms Role of Parent, Requires OK for Abortions,
Contraceptives (July 16, 1998).
\40\ Government Press Release, Federal Document Clearing House,
Ashcroft Bill Affirms Parents' Role in Critical Choices by Children
(July 30, 1998).
---------------------------------------------------------------------------
On the 1998 anniversary of Roe v. Wade, Ashcroft marched
with Missouri Right to Life in the National March for Life.\41\ In a
speech entitled ``Roe v. Wade: Has it Stood the Test of Time?''
Ashcroft said: \42\
---------------------------------------------------------------------------
\41\ Government Press Release, Federal Document Clearing House,
Ashcroft Announces Events for Week of March for Life (Jan. 15, 1998).
\42\ Senator John Ashcroft, Prepared Remarks, Roe v. Wade: Has it
Stood the Test of Time? (Jan. 21, 1998) (congressional testimony).
---------------------------------------------------------------------------
``As a legal matter, the absence of any textual foundation
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.''
``The current constitutional standard permits restrictions
on abortion only if they do not place an `undue burden' on the right to
an abortion. Tragically, it is a standard which gives the Court
discretion to authorize the destruction of innocent human life.''
``Regrettably, the damage that Roe has wrought on the
culture and the Constitution has not been confined to the realm of
abortion. To buttress Roe as constitutional law, the courts have
created exceptions to individual rights that--unlike abortion--are
constitutionallyprotected.''
``The poetry springs from the growing network of crisis
pregnancy centers giving women alternatives to the destruction of
fragile life. Millions of Americans have heard the silent cries for
help, and are responding.''
Ashcroft received an award from the American Life League,
an extremist anti-abortion and anti-contraception group.\43\
---------------------------------------------------------------------------
\43\ American Life League, Press Release, Big Abortion Group Seeks
to Defame ALL, Jan. 3, 2001, http://www.all.org/news/010103.htm;
American Life League, Birth Control: The Abortion Connection, http://
www.all.org/issues/bcOO.htm (last visited Jan. 12, 2001).
---------------------------------------------------------------------------
During Ashcroft's bid for the Republican nomination for
the presidency: \44\
---------------------------------------------------------------------------
\44\ Bill Lambrecht and Patrick Wilson, Abortion Activists Vow to
Stress Moral Issues, ST. LOUIS POSTDISPATCH, Jan. 23, 1998, A4.
---------------------------------------------------------------------------
``Ashcroft carried a Missouri Right to Life banner at a
meeting with abortion opponents.''
Ashcroft likened the fight to end legal abortion to the
civil rights movement of the 1960s. ``We have the most noble and worthy
objective that we could have.'' \45\
---------------------------------------------------------------------------
\45\ Lambrecht and Wilson, Abortion Activists Vow to Stress Moral
Issues.
---------------------------------------------------------------------------
Ashcroft suggested that American leaders should pursue a
religious agenda, stating, ``if only our government had a heart closer
to God's.'' \46\
---------------------------------------------------------------------------
\46\ Liz Szabo, Senator Focuses on Themes of Faith, Family and
Politics, VIRGINIAN-PILOT & LEDGERSTAR, May 10, 1998, B1.
---------------------------------------------------------------------------
Ashcroft said, ``They say you can't legislate morality. .
. well, you certainly can.'' \47\
---------------------------------------------------------------------------
\47\ Who is John Ashcroft? And Why are Leaders of the Christian
Right Saying Such Nice Things About Him? CULTURE WATCH (June 1998),
http://www.igc.apc.org/culturewatch/issue53.htmi.
---------------------------------------------------------------------------
Ashcroft stated, ``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.\48\
---------------------------------------------------------------------------
\48\ Terence Jeffrey, Ashcroft Affirms He is 100% Pro-Life, HUMAN
EVENTS MAGAZINE, May 29, 1998.
---------------------------------------------------------------------------
Ashcroft said, ``On moral issue after moral issue, the
Congress has cut and run, when we needed to stand and lead . . . . We
must start by voting to defend innocent human life. God's precious gift
of life must be protected in law and nurtured in love.'' \49\
---------------------------------------------------------------------------
\49\ Ed Anderson, Quayle Slams Clinton at State GOP Convention,
TIMES-PICAYUNE, Mar. 8, 1998, A13.
---------------------------------------------------------------------------
1999
Ashcroft voted in favor of overturning Roe v. Wade and
denying a constitutional right to safe and legal abortion services.\50\
---------------------------------------------------------------------------
\50\ Harkin/Boxer non-binding resolution to ``Partial-Birth''
Abortion Ban Act of 1999, S 1692, 10/21 /99.
---------------------------------------------------------------------------
In reference to so-called ``partial-birth'' abortion,
Ashcroft said, ``. . . this procedure is never necessary to save the
life and preserve the health of the unborn child's mother.'' \51\
---------------------------------------------------------------------------
\51\ Senator John Ashcroft, Barbaric Practice, CONGRESSIONAL PRESS
RELEASES, Oct. 21 , 1999.
---------------------------------------------------------------------------
Ashcroft co-signed another letter expressing opposition to
a Senate amendment to require that the Federal Employee Health Benefits
Plan (FEHBP) cover the cost of FDA-approved contraceptives, citing
concern that it would fund abortifacients.\52\
---------------------------------------------------------------------------
\52\ Letter signed by Senator John Ashcroft et al., to Senator Ben
Nighthorse Campbell, Subcomm. on Treasury, Postal Service, and General
Government (June 21, 1999).
---------------------------------------------------------------------------
Ashcroft voted against an amendment to prevent persons who
commit acts of violence or harassment at reproductive health care
facilities from using bankruptcy proceedings to avoid paying the
damages, court fines, penalties, and legal fees levied against them as
a result of their illegal activities.\53\
---------------------------------------------------------------------------
\53\ Schumer amendment to Bankruptcy Overhaul (Senate Judiciary
Committee), S 625, 4/27/99. Although he voted for the amendment on the
floor, 80 Senators did so, and the vote may not have been fully
reflective of some Senators' opposition to clinic violence. Vice
President Gore had arrived to break any tie vote, and Republican
leaders counseled an ``Aye'' vote so as to avoid public embarrassment,
on the promise that the amendment would be killed later.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\54\ David Lightman, Ashcroft Satisfies GOP Right; Attorney General
Choice Known for Conservatism, HARTFORD COURANT, Dec. 23, 2000, A1;
American Life League, Press Release, Big Abortion Group Seeks to Defame
ALL, Jan. 3, 2001, http://www.all.org/news/010103.htm; American Life
League, Birth Control. The Abortion Connection, http://www.all.org/
issues/bcOO.htm (last visited Jan. 11, 2001); American Life League,
Press Release, ALL Campaigns to Stop Wal-Mart's Abortion Referral
Service, June 9, 2000, http://www.all.org/news/000609.htm.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\55\ Free Congress Foundation, Press Release, Grassroots
Endorsements of Senator John Ashcroft's Nomination to be United States
Attorney General (Jan. 5, 2001), http://freecongress.org/press/
releases/01 0105-list.htm.
Chairman Leahy. Thank you, Ms. Michelman.
Ms. Feldt, you are one not unaccustomed to testifying
before the Congress. Good to have you here.
STATEMENT OF GLORIA FELDT, PRESIDENT, PLANNED PARENTHOOD
FEDERATION OF AMERICA, NEW YORK, NEW YORK
Ms. 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.
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.
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.
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.
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.
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.
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.
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.
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.''
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.
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.
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?
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.
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?
Thank you very much.
[The prepared statement of Ms. Feldt follows:]
Statement of Gloria Feldt, President of Planned Parenthood Federation
of America
Good morning. My name is Gloria Feldt. I am president of Planned
Parenthood Federation of America, the nation's largest and most trusted
provider of reproductive health care and education. Each year, nearly
five million women, men, and teenagers receive reproductive health
services at the 875 centers operated by the Planned Parenthood network
of 127 affiliates, serving communities in 48 states and the District of
Columbia.\1\
---------------------------------------------------------------------------
\1\ Planned Parenthood Federation of America. January 2000. This is
Planned Parenthood [Brochure].
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\2\ Ibid
\3\ Ibid
\4\ AGI--The Alan Guttmacher Institute. (1999, accessed 2000,
January 16). Contraception Counts: Stateby-State Information [Online].
http://wwwagi-usa.org/pubs/ib22.html.
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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.
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.
---------------------------------------------------------------------------
\5\ NARAL--National Abortion and Reproduction Action League.
(Accessed January 16, 2001). ``John Ashcroft: A Chronology ofAssaults
on Women's Reproductive Rights.'' [Online] http://naral.org/
mediaresources/fact/ash-- chron.html
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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\
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\6\ Cunningham, G., MacDonald, p., Gant, N., et.al, eds. (1997).
Williams Obstetrics, 20'' Edition. Stamford, CT: Appleton & Lange
Hughes, E. (1972). Obstetric-Gynecologic Terminology with
Neonatology And Glossary of Congenital Anomalies. Philadelphia, PA: F.
A. Davis Company.
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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\
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\7\ Human Life Amendment of 1998, S 2135.
\8\ NARAL--National Abortion and Reproduction Action League.
(Accessed January 16, 2001). ``John Ashcroft: A Chronology of Assaults
on Women's Reproductive Rights.'' [Online] http://naral.org/
mediasources/fact/ash chron.html
\9\ Ashcroft, John (Dear Colleague Letter to Treasury, Postal
Service and General Government, September 4, 1998)
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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.
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.
---------------------------------------------------------------------------
\10\ Griswold v. Connecticut, 381 U.S. 479 (1965).
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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.
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.
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.
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\11\ Federal Bureau of Investigation. (Accessed January 16, 2001).
``Freedom of Access to Clinic Entrances.'' [Online] http://www.fbi.gov/
programs/civilrights/face.html
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
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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.
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\
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\12\ NAF--National Abortion Federation. (2000, accessed 2000,
January 16). NAF Violence and Disruption Statistics: Incidence of
Violence & Disruption Against Abortion Providers [Online]. http://
www.prochoice.org/ default7.htm.
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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.
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.
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.
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.
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.
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.
``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. . .''
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.
---------------------------------------------------------------------------
\13\ United States v. Kelly, (1999).
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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.
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.
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.
ashcroft's legislative record demonstrates his extreme positions
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.
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:
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)
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)
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)
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)
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
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
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.
Chairman Leahy. Thank you, Ms. Feldt.
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.
STATEMENT OF MARCIA GREENBERGER, CO-PRESIDENT, NATIONAL WOMEN'S
LAW CENTER, WASHINGTON, D.C.
Ms. 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Thank you.
[The prepared statement of Ms. Greenberger follows:]
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.
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.
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
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\
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\1\ See, e.g., Letter to the Honorable Ben Nighthorse Campbell,
September 4, 1998 (Sen. Ashcroft was a signatory to a letter opposing
contraceptive coverage for federal employees which stated ``[b]ut more
importantly 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''); Letter to the
Honorable Ben Nighthorse Campbell, June 21, 1999 (Sen. Ashcroft was a
signatory to a letter opposing contraceptive coverage for federal
employees which stated ``[a]s you are aware, some of the contraceptives
that were mandated under the Snowe/Reid provision act de facto as
abortifacients upon failing to prevent fertilization'').
\2\ Human Events Magazine, May 29, 1998 (confirming his opposition
to a rape and incest exception). Mr. Ashcroft has also supported
legislation that would ban abortions and make no exception for
pregnancies caused by rape or incest, or a woman's health. See, e.g.,
the Human Life Amendment, S.J.Res. 49, 105th Cong., 2d
Sess., June 5, 1998; and the Human Life Act of 1998, S. 2135,
105th Cong., 2d Sess., June 5, 1998. 2
\3\ Hearings on S. 158 Before the Subcommittee on Separation of
Powers of the Senate Judiciary Committee, 97th Cong.,
15st Sess. (1981) at 1107.
\4\ S. 158, ``Human Life Bill,'' 97th Cong.,
1st Sess. (1981) (Section 4).
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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\
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\5\ Jefferson City News & Tribune, March 13, 1983.
\6\ Human Events Magazine, May 29, 1998.
\7\ Human Events Magazine, May 29, 1998.
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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\
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\8\ Kansas City Star, September 14, 1997.
\9\ Meet the Press, April 19, 1998.
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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\
---------------------------------------------------------------------------
\10\ John Ashcroft's Spirit of America Website, (last visited on January 17, 2001).
---------------------------------------------------------------------------
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.
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\
---------------------------------------------------------------------------
\11\ St. Louis Post Dispatch, February 25, 1989.
---------------------------------------------------------------------------
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\
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\12\ Deposition of John Ashcroft, National Organization for Women
v. Ashcroft, Case No. 81-4094-CV-C-W, 24 (January 7, 1982).
\13\ Missouri v. NOW, 620 F.2d. 1301 (8th Cir.1980),
cert. denied, 449 U.S. 842 (1980).
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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\
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\14\ Veto Letter, Missouri S.B. 542, July 13, 1990. See also, St.
Louis Post Dispatch, March 3, 1990. The 1990 Missouri bill covered only
women employees; it did not cover seriously ill children or other
family members, or even adoptive fathers; it did not protect employee's
health insurance during their leave; it guaranteed employees' jobs for
only eight weeks (except in cases of premature births); and it
contained an exemption for food service personnel.
\15\ St. Louis Post Dispatch, March 3, 1990. Less than two weeks
after Governor Ashcroft vetoed the state's minimum wage bill, the
Missouri House tentatively approved a bill to place the minimum wage
bill before Missouri voters. St. Louis Post Dispatch, March 16, 1990.
The state legislature then passed a new version of the bill by
unanimous vote. St. Louis Post Dispatch, April 25, 1990. Finally,
threatened by the effort to take the bill directly to voters and facing
certain override, Ashcroft signed the bill. St. Louis Post Dispatch,
May 3, 1990.
\16\ Veto Letter, Missouri H.B. 1101, June 21, 1990; Veto Letter,
Missouri H.B. 1101, June 26, 1992; Daily Capital News, June 30, 1992;
Kansas City Star, June 30, 1992.
\17\ St. Louis Post Dispatch, March 1, 1992.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\18\ St. Louis Post Dispatch, February 25, 1989.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\19\ Id.
\20\ St. Louis Dispatch, March 21, 1988.
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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\
---------------------------------------------------------------------------
\21\ Hearing before the Subcommittee on the Constitution,
Federalism, and Property Rights of the Senate Judiciary Committee,
105th Cong., 1st Sess., (September 30, 1997)
(opening statement of John Ashcroft).
\22\ Hearing before the Senate Judiciary Committee,
105th Cong., 1st Sess. (November 6, 1997); St.
Louis Post-Dispatch, October 8, 2000.
\23\ Kennedy Amendment to S. 2549, June 20, 2000, (57 Yes-42 No).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\24\ Los Angeles Times, November 3, 1997.
\25\ St. Louis Post-Dispatch, January 11, 2001.
---------------------------------------------------------------------------
In a similar vein, Senator Ashcroft was only one of 11 Senators to
vote against the confirmation of Margaret McKeown to the Ninth Circuit
in 1998, after a delay of nearly two years, and he was in the minority
voting against the confirmation of Sonia Sotomayor to the Second
Circuit after a delay of more than a year, against the confirmation of
Susan Oki Mollway to the federal district court in Hawaii after a delay
of two and a half years, against the confirmation of Ann Aiken to the
federal district court in Oregon, and against the confirmation for
Marsha Berzon to the Ninth Circuit after a delay of nearly two years.
John Ashcroft Has Misread the Law and Used His Public Positions to
Undermine Women's Legal and Constitutional Rights
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.
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.
---------------------------------------------------------------------------
\26\ Executive Session--Senate, 106th Cong.,
1st Sess., October 4, 1999 (Congressional Record, p. S
11871--82)
\27\ Kinder, 942 S.W.2d. at 340.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\28\ Freiman v. Ashcroft, 440 F.Supp. 1193, 1195 (E.D. Mo., 1977)
(Webster, J. concurring).
\29\ Freiman v. Ashcroft, 584 F.2d 247, 250 (8th Cir.,
1978).
\30\ Ashcroft v. Freiman, 440 U.S. 941 (1979).
\31\ Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. 1983).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\32\ Hearings on S. 158 Before the Subcommittee on Separation of
Powers of the Senate Judiciary Committee, 97th Cong.,
1st Sess. (1981) (Statement of Attorney General John
Ashcroft, noting that he was the ``chief lawyer in a law office that
maintains a . . . caseload of about 5,000 cases'').
\33\ S. 158, ``The Human Life Bill,'' 97th Cong.,
1st Sess. (1981).
\34\ New York Times, June 19, 1981.
\35\ Hearings on S. 158 Before the Subcommittee on Separation of
Powers of the Senate Judiciary Committee, 97th Cong.,
1st Sess. (1981) (Statement of Senator John Ashcroft).
\36\ Kansas City Times, January 25, 1990.
\37\ St. Louis Post-Dispatch, March 28, 1991 (discussing Missouri
SB 339 (January 22, 1991)).
---------------------------------------------------------------------------
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
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.
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.
---------------------------------------------------------------------------
\38\ Judiciary Act of 1789, 1 Stat. 73 Sec. 35, superceded by, 28
U.S.C. Sec. Sec. 511-513 (2000).
\39\ Nancy v. Baker, Conflicting Loyalties: Law and Politics in the
Attorney General's Office, 1789-1990, 5 (1992).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\40\ Cornell W. Clayton, The Politics of Justice: the Attorney
General and Making of Legal Policy, 60 (1992).
\41\ Id. at 70.
\42\ Id. at 67.
\43\ Between 1925 and 1988, the Justice Department prevailed on
average in nearly 69 percent of its cases. Id. at 69.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\44\ U.S. General Accounting Office, Abortion Clinics: Information
on the Effectiveness of the Freedom of Access to Clinic Entrances Act
Report to Ranking Minority Member, Subcomm. on Crime, Comm. on
Judiciary, House of Representatives, (November 1998).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\45\ Clayton, supra at 61.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\46\ Id. at 194 (citing Newman v. United States, 382 F.2d 497
(1967)).
\47\ Id. at 197.
\48\ Id.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\49\ 1d. at 203-04.
\50\ Id.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\51\Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992)
(O'Connor, J.).
---------------------------------------------------------------------------
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
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.
Chairman Leahy. Thank you, Ms. Greenberger.
Ms. Campbell, as always, it is good to have you here.
Please go ahead with your testimony.
STATEMENT OF COLLENE THOMPSON CAMPBELL, MEMBER, MEMORY OF
VICTIMS EVERYWHERE, SAN JUAN CAPISTRANO, CALIFORNIA
Ms. Campbell. Thank you, honorable Senators. This is a
tough one for me, but I'm going to get through it.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Thank you, Senators, for allowing me to speak, and I'm
sorry I choke up.
[The prepared statement of Ms. Campbell follows:]
Statement of Collene Thompson Campbell, Member, Memory of Victims
Everywhere, San Juan Capistrano, California
Mr. Chairman and Senators:
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.
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.
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.
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.
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.
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.
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.
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.
John Ashcroft will fight for legal rights and true remedies for
crime victims. We urge you to support John Ashcroft's confirmation.
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.
Chairman 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.
Ms. Campbell. Thank you.
Chairman Leahy. And so--
Ms. Campbell. They must think I have a lot of tears. They
got me the whole box. Thank you for saying that.
Chairman 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.
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.
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.
[Pause.]
Chairman Leahy. We have a very large room here, and I know
that there are some people who are leaving and some people
coming in.
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.
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.
Congressman Watts, I understand we will begin with you as a
member of the Republican leadership.
STATEMENT OF HON. J.C. WATTS, JR., A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF OKLAHOMA
Representative 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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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.
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.''
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.
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.
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.
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.
[The prepared statement of the Mr. Watts follows:]
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.
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.
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.)
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.
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.
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.
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.
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.
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.
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.
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.''
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.
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.
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.
You have observed Senator Ashcroft to be a man of compassion,
strength and integrity.
He is extremely qualified to be the next attorney general of the
greatest nation in the world.
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.
Thank you very much.
Chairman Leahy. 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.
Mr. Hulshof.
STATEMENT OF HON. KENNY HULSHOF, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF MISSOURI
Representative 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.
Chairman Leahy. I assure your mother that you are one of
the hardest-working and most valued members of the Congress.
Representative Hulshof. I appreciate that, Mr. Chairman.
That's high praise.
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.
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.
Chairman Leahy. It will be.
Representative 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.
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.
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.
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.
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.
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.
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.
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.
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?
Chairman Leahy. Of course.
[Mr. Jones stood.]
Mr. Hulshof. 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.
Chairman Leahy. I direct the staff to make copies for each
Senator, and make sure a copy is given to each member of the
panel.
Mr. 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.
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.
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.
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.
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.
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.''
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.''
``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.''
And with that, I appreciate the deference of the Chairman,
I would be happy to answer questions about this case or others.
[The prepared statement and an attachment of Representative
Hulshof follow:]
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.
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.
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.
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.
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.
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.
Let me share with you the facts of the Johnson case:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.''
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.
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.
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.
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 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
Chairman 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.
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.
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.
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.
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.
Representative 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.
Chairman 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.
Representative Hulshof. That is correct, Mr. Chairman.
Chairman Leahy. And, actually, under the canons of ethics,
once having accepted that assignment, you have to do that, do
you not?
Representative Hulshof. That is correct.
Chairman Leahy. 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.''
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?
Representative Hulshof. It is, Mr. Chairman, with some
qualification, and I will be happy to state this.
Chairman Leahy. Go ahead.
Representative Hulshof. 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.
Chairman 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?
Representative 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.
Chairman Leahy. The call of ``officer down'' galvanizes all
law enforcement.
Representative Hulshof. Absolutely.
Chairman Leahy. I have been there. I know what that is
like.
Representative 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.
Chairman 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?
Representative Hulshof. Judge--excuse me, Mr. Chairman. I
have already put you on the Federal bench. Mr. Chairman, I--
Chairman 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.
Representative 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.
Chairman 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?
Representative 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.
Chairman Leahy. I understand.
Senator Hatch?
Senator Hatch. 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.
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.
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.
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.
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.
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?
Representative Hulshof. Yes, sir, I am.
Senator 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?
I don't mean to put you on the spot, but I think that
question has to be answered.
Representative 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.
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.
Senator Hatch. Was that the rule of law that should have
been applied in this case?
Representative 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.
I see the red light is on, and let me undertake--
Senator Hatch. You can continue the answer. I will ask my
colleague to just give me a few more minutes.
Chairman Leahy. Of course.
Representative Hulshof. 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.
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.
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.
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.
Senator Hatch. Thank you very much.
Chairman Leahy. The senior Senator from New York.
Senator 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.
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.
Representative Hulshof. Yes, sir.
Senator Schumer. 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.
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.
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.
Could you comment on that?
Representative 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.
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.''
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.
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--
Senator 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.
Representative 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.
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.
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.
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--
Senator 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?
Chairman 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--
Senator 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.
Chairman Leahy. About 2 minutes 21 seconds.
Senator 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.
Senator Schumer. I have no further questions, Mr. Chairman.
Chairman 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.
Senator Thurmond?
Senator Thurmond. Thank you.
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.
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.
I thank you.
Chairman Leahy. Now, there is an example of how to stay
within the time.
The distinguished senior Senator from Illinois, Senator
Durbin.
Senator Durbin. Thank you very much, Mr. Chairman.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Representative 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.
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.
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.
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.
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.
Senator 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?
Chairman Leahy. Both of us agree. Go ahead with your
answer.
Representative 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.
Thank you.
Chairman Leahy. With that, we will go to the senior Senator
from Pennsylvania.
Senator Specter. Thank you.
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.
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.
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.
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?
Representative 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--
Senator Specter. Without taking too much more time--
Representative Hulshof.--I think the fact that there are
now individuals trying to target him with slurs, I think, is
intolerable.
Senator 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--
Senator Hatch. Please don't point at me.
Senator 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.
My red light just went on. Thank you.
Chairman Leahy. If the Senator wants to finish his
question, feel free.
Senator Specter. Thank you.
Chairman Leahy. Well, we will go to Senator Kyl. I am not
hearing an answer. I simply will go ahead. Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
So I think this vindicates the judgment not only of the
Senate, but also of Senator Ashcroft in opposing him.
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.
Thank you.
Chairman Leahy. The senior Senator from Ohio.
Senator DeWine. I have no questions, Mr. Chairman. Thank
you.
Chairman Leahy. I can't tell you how much the chairman
thanks the senior Senator from Ohio.
The Senator from Alabama.
Senator Sessions. Thank you, Mr. Chairman. Not so lucky
with me.
Congressman Watts, thank you for coming. Thank you for all
you do to advance good and healthy ideas in America.
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.
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?
Representative 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.
Senator 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?
Representative Hulshof. Yes, sir.
Senator Sessions. 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?
Representative 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.
Senator 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.
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.
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?
Representative Hulshof. It is, Senator Sessions.
Senator Sessions. And as have the Sheriffs Association.
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.
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.
Mr. Chairman, thank you. My time has expired.
Chairman Leahy. Do you have something further to add?
Senator Sessions. I will stay within my time.
Chairman Leahy. You would be one of the very few on the
other side of the aisle, but I appreciate it.
Senator Sessions. I would just offer that and say there are
other letters from significant organizations that should be
submitted.
Chairman 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.
Does the Senator from Kansas wish to ask questions?
Senator Brownback. Yes, I would, if I could.
Thank you very much for coming in, Kenny. I appreciate
that.
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.
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.''
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.''
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.
The Missouri Sheriffs Association said, ``We strongly
consider his dissenting opinion in the Missouri v. Johnson
case.''
Senator Brownback. Is that the pattern you spoke of, of why
these organizations were all opposed to his taking the Federal
bench?
Representative 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.
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.
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.
Senator 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.
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.
Representative 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.
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.
Senator Brownback. Thank you very much. Thank you both for
joining us, too.
Senator Sessions. Could I bother to offer one more letter?
Chairman Leahy. The Senator from Alabama can interrupt any
time he would like. You go right ahead.
Senator Sessions. You are very kind. You have been very
patient.
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.
Chairman 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.
With that, we will stand--
Senator 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.
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.
Chairman Leahy. Ultimately, of course, the question will
come down to how 100 United States Senators will vote for John
Ashcroft.
Senator Hatch. That is right.
Chairman Leahy. While that vote will not be held today,
eventually it will be held, and that will be the question.
I do thank our two colleagues from the House, both valued
members of that body. They have been most patient.
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.
[Whereupon, at 1:26 p.m., the Committee recessed for lunch,
to reconvene at 2:30 p.m., this same day, Thursday, January 18,
2001.]
AFTERNOON SESSION [2:43 p.m.]
Chairman Leahy. Thank you all, and as sometimes happens in
these events, we have to move things around, and I apologize
for that.
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.
Senator 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.
Chairman Leahy. Would you rather go first?
Senator Specter. That is all right. I will follow Senator
Kennedy.
Chairman Leahy. Let's turn to Senator Kennedy.
Senator Kennedy. 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.
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?
Ms. 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.
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.
Senator Kennedy. 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?
Ms. 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.
Senator Kennedy. 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.
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.
Could you make any comment on what was happening at that
time and what kind of value do you give to--
Ms. 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.
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.
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.
Senator Kennedy. 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--
Ms. Woods. Well, I would say there certainly were--
Senator Kennedy.--Opportunity for registering and
participating in the votes?
Ms. 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.
Senator Kennedy. 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.
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?
Ms. 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.
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.
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.
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.
Similarly, emergency contraception, which can be taken
within 72 hours after intercourse and can prevent a pregnancy
from occurring, could be given that same approach. And
emergency contraception has been found by researchers to--if
all women of reproductive age had access to it, emergency
contraception could reduce the unintended pregnancy rates and
the abortion rate by one-half.
So, ironically, the outcome could be actually an increase
ultimately in the rate of abortion because of the lack of birth
control access.
Ms. Greenberger. Senator Kennedy, I wonder if I just might
add--
Senator Kennedy. I think my time is up, Mr. Chairman.
Chairman 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.
Senator 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
Ms. 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.
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--
Senator Specter. Ms. Michelman, I think--
Ms. Michelman.--That rises above and transcends.
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--
Senator Specter. Ms. Michelman, let me interrupt because
the time is fleeting.
Ms. Michelman. Sorry.
Senator Specter. You said the other side. How about joining
my side?
Ms. Michelman. Joining your side?
Senator Specter. Yes. How about joining the Republican
side--
Senator Hatch. Don't be so shocked here.
[Laughter.]
Senator Hatch. I have never seen such a shocked look on
your face.
Ms. Michelman. Well, no, actually, I--
Senator Specter. You don't have to convince Senator
Kennedy.
Ms. Michelman. I am an Independent myself, but I think with
all--you know, all kidding aside here, though--
Senator Specter. I am not kidding.
Ms. Michelman. No, but--
[Laughter.]
Ms. 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--
Senator Specter. Ms. Michelman, I have to--
Ms. Michelman. The human life amendment is a little bit of
a straw man here--
Senator Specter. I have to interrupt you--
Ms. Michelman.--With all due respect--
Senator Specter.--Because time is fleeting, and I am not
doing very well with you. I want to turn to Ms. Feldt.
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?
Ms. 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.
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.
Senator Specter. Barry Goldwater was the preeminent
conservative who said keep the government off your backs--
Ms. Feldt. That is right.
Senator Specter.--Out of your pocketbooks, and out of your
bedrooms.
Ms. Feldt. Absolutely.
Senator Specter. Well, we need to get those Republicans in
Planned Parenthood more active.
Ms. Feldt. We are working on that, Senator. I guarantee
you.
Senator Specter. Marcia Greenberger, how about it? Will you
join up? I am recruiting.
Ms. 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?
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.
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.
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?
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.
Senator 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.
Thank you very much. Thank you, Senator Hatch.
Chairman 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.
Now, how significant was this case and the defeat of what
then-Attorney General Ashcroft tried to do to the nurses in
Missouri?
Mr. 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.
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--
Chairman 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?
Mr. Susman. Oh, absolutely. Practicing medicine without a
license.
Chairman Leahy. Does this seem kind of 19th century--
Mr. Susman. It caused panic because many of the doctors in
these family planning clinics resigned, just from the threat,
resigned their practices.
Chairman 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.
Mr. 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.
Chairman 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?
Mr. Hunter. That is correct.
Chairman Leahy. 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.''
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.
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.
Ms. 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.''
Chairman Leahy. Do you know Representative Shelton?
Ms. Woods. Oh, yes, the Representative, and he reacted to
the failure to sign the--I'm sorry.
Chairman Leahy. Oh, go ahead.
Ms. 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.
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.
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.
Chairman 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?
Ms. Michelman. No.
Ms. Feldt. No.
Chairman Leahy. I take it by your answers, everybody feels
it is unconstitutional. Thank you.
Senator Hatch?
Senator Hatch. 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.
Now, the Supreme Court's opinion, as I understand it,
agreed with the position taken in the amicus brief. Am I wrong
on that?
Mr. Robertson. 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.
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.
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.
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.
Senator 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.
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.
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.
Now, these conclusions were sustained by the Eighth
Circuit, as I understand it, in an opinion by Judge McMillan, a
prominent African-American jurist.
If I could, I would like to submit copies of those opinions
for the record.
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.
Mr. Robertson. Thank you, Senator.
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.
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--
Senator Feingold. Excuse me just for a moment.
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?
Senator Hatch. Maybe even a little more slowly.
Chairman Leahy. I would also ask if there is somebody who
could double check it. Really, the sound system is leaving
something to be desired.
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.
Go ahead.
Mr. Robertson. I see the red light is on.
Chairman Leahy. No, that is all right.
Senator Hatch. No, that is fine. Some of the time has been
eaten up here.
Mr. Robertson. 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.
Senator Hatch. Thank you.
Just one last question. I would like to ask Ms. Campbell
this question.
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.
Ms. 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.
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.
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.
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.
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.
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.
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.
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.
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.
Senator Hatch. Well, thank you very much.
Ms. 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.
Chairman Leahy. Well, you voted right. She is a good
person, and we are fortunate to have her on this Committee.
You had a request, Senator Kennedy.
Senator Kennedy. 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.
Senator Hatch. Well, my point was the Democrats controlled
the process. I don't know how you blame Senator Ashcroft for
that.
Senator Kennedy. 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.
Senator Hatch. Those local boards controlled the process.
Senator Kennedy. No. Under the Missouri constitution he had
direct responsibility.
Senator Hatch. Yeah, blame him.
Chairman Leahy. Gentlemen, gentlemen, please. A little
understanding.
Senator Hatch. I am trying to be understanding.
Chairman 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.
Senator Kyl. Just like the Presidency, right, Mr. Chairman?
Chairman Leahy. Just like the Presidency. You can't have it
both ways.
Senator Hatch. That is right.
Chairman Leahy. The Senator from California.
Senator Feinstein. Thank you very much.
I want to welcome you here, Ms. Campbell, very much. I am
very sorry what happened to your son.
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.
Ms. Campbell. I want to be here when you do, and I do not
want it weakened.
Senator Feinstein. Thank you very much. Thank you. I
appreciate that.
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.
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.
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.
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?
Ms. 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.
Ms. 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.
Senator Feinstein. Well, I would strongly agree with that.
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.
Ms. 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.
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.
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.
But I think there is a lot of room for an Attorney General
to question whether a law is really settled.
Senator Feinstein. Well, I would be very happy if you--you
see, I was very puzzled by the hearing because I saw a distinct
change.
Ms. Michelman. Yes.
Senator Feinstein. 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.
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.
Ms. 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.
Senator 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?
Ms. Greenberger. Yes. Thank you, Senator Feinstein.
Ms. 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.
Senator Feinstein. Well, let me just respond to that, just
quickly.
Chairman Leahy. We really--
Senator Feinstein. Very quickly. I mean, we are a 50-50
body.
Chairman Leahy. You have had your time, Senator.
Senator Feinstein. The Judiciary Committee is the oversight
Committee. Senator Hatch is a man of great integrity.
Ms. Michelman. Yes, he is.
Senator 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.
Senator Hatch. I can guarantee you that. I can guarantee
that you would be the first one.
[Laughter.]
Chairman Leahy. I was going to finish your sentence for
you, Orrin, because I know exactly what you meant. You were not
agreeing that easily.
Senator Hatch. Let me tell you, I know my place, too.
Ms. Greenberger. Can a witness insert a quick point?
Chairman Leahy. Yes.
Ms. Greenberger. 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--
Chairman Leahy. And that is a point that has been made a
number of times at these hearings, and we will stop at that
point.
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.
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.
I would turn to the Senator from Arizona, and obviously he
has some extra time.
Senator Kyl. Thank you, Mr. Chairman.
I really want to direct my first remarks to Senator
Feinstein, and then I will talk to the panel for a moment.
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.
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.
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.
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.
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.
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.
I also want to, again, welcome Collene Campbell. You came
here on your own dollar, as I understand. Is that right,
Collene?
Ms. Campbell. Yes, sir.
Senator Kyl. 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.
Ms. Campbell. No, I just didn't tell anybody about it.
Senator Kyl. Right. You have completed your second term as
Mayor of the city of San Juan Capistrano, as I understand.
Congratulations on that.
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?
Ms. 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.
Senator 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.
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.
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.
A Department of Justice study said that these laws are
honored more in the breach than the observance.
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.
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.
Just a final point since the red light just went on.
Chairman Leahy. The Senator has extra time.
Senator Kyl. I appreciate that, Mr. Chairman, but I also
appreciate you have been trying to move things along.
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.
Mr. Hunter. Thank you, Senator Kyl.
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.
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.
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.
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.
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.
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.
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.
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.
Chairman 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.
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.
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.
Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman.
First, let me thank all of the witnesses, and especially
Ms. Campbell for coming here after a personal tragedy.
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.
Chairman Leahy. Thank you very much.
Senator Feingold. 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.
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.
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.
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.
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.
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.
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.
Ms. 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.
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.
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.
His priorities, we have already talked about that a lot,
what kind of priorities he will bring to bear for the Justice
Department.
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.
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.
I also think we do have the matter of what cases the United
States will argue before the Supreme Court.
Senator Feingold. I see that. I am just trying to get at
the administrative piece now.
Ms. Michelman. The administrative. Well, that is an
administrative piece. That is a decisionmaking--
Senator Feingold. I was trying to distinguish that from
other things.
Ms. Michelman. All right. Let me let others comments on
that very question.
Senator Feingold. Thank you very much.
Ms. Feldt?
Ms. Feldt. 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.
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.
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.
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.
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.
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.
Senator 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.
Ms. Feldt. I am not talking just about the enforcement.
Senator Feingold. Or the administrative resources.
Ms. Feldt. It is the administrative resources.
Senator Feingold. He would shut off the resources that
would be pursuant to protecting the right to choose.
Ms. 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.
Senator Feingold. Thank you.
Ms. Greenberger?
Ms. Greenberger. 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.
Senator Feingold. Sure.
Ms. Greenberger. 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 -
Senator Feingold. So you are suggesting he would wield his
power as an administrator in the Department Justice--
Ms. Greenberger. Yes.
Senator Feingold.--And in a similar manner that he used his
line-item vetoes as Governor of Missouri?
Ms. 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.
I want to also talk abut--
Chairman Leahy. Ms. Greenberger.
Ms. Greenberger. Yes, sorry.
Chairman 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.
Ms. 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.
Senator Feingold. Thank you.
Chairman Leahy. Senator Hatch.
Ms. Greenberger. Three over the next 3 years. And I could
go on, but that is some of the concrete concerns as an
administrator.
Chairman Leahy. Thank you very much.
Senator Hatch.
Senator Hatch. 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.
Ms. 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.
Senator 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.
Chairman Leahy. The very patient senior Senator from Ohio.
Senator DeWine. Mr. Chairman, you keep insisting on calling
me the senior Senator here, so you make me feel old.
Chairman Leahy. You are the senior Senator. Are you not the
senior Senator?
Senator DeWine. In service, that is correct.
Chairman 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.''
Senator DeWine. Senior citizen, well, at least you did not
do that, Mr. Chairman. Thank you.
Chairman Leahy. No.
Senator DeWine. Although I guess I am getting close.
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.
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.
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.
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.
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.''
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.
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.
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.
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.
And so, Ms. Campbell, thank you for coming in.
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.
Chairman 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?
Senator DeWine. No, I just read it right in.
Chairman Leahy. OK. The senior Senator from New York.
Senator Schumer. Thank you, Mr. Chairman. And I want to
thank all of the panel. I know it has been a long day.
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.
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.
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.
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.
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.
Ms. 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.
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.
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.
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.
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.
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.
Senator Schumer. Do you want to add something? See, my time
is up.
Ms. Michelman. Yes, just a quick addition to Gloria's, I
think, very fine response.
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.
Chairman Leahy. Thank you.
Senator Schumer. Thank you, Ms. Michelman
Chairman Leahy. The Senator from Alabama, Senator Sessions.
Senator Sessions. Thank you, Mr. Chairman.
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.
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.
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.
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?
Mr. Robertson. 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.
Senator 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?
Mr. Robertson. That's correct.
Senator Sessions. And the Attorney General is a lawyer for
all the people; is that correct?
Mr. Robertson. That's correct. And the state was a
defendant in the lawsuit, and the law requires the Attorney
General to defend the state.
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.
Senator Sessions. This is the Minority Leader in the House
of Representatives.
Mr. Robertson. And reported in the St. Louis Post Dispatch.
Senator Sessions. He agreed with Senator Ashcroft on this
desegregation court plan basically, or opposed it also?
Mr. Robertson. Well, he then. I'm not sure he would now.
Senator Sessions. Well, I think that is significant. I
think we ought to know that. I am glad to hear that.
Mr. Robertson. 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.
Senator 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?
Mr. Robertson. I would be pleased to do that if the Senator
would like for me too.
Senator 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?
Mr. Robertson. I might want to fight with you over the word
``notorious'', but it was in fact a very--
Senator Sessions. The Taxation without representation
phrase was heard a lot in America by people concerned about it.
Mr. Robertson. That's correct.
Senator Sessions. 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.
Mr. Robertson. Well, ultimately, I think the Supreme Court
of the United States agreed with you on that question.
Senator 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?
Mr. Robertson. 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.
Senator Sessions. Did you personally have to approach him--
Chairman 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.
Mr. 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.
Chairman Leahy. As my mother's family would say, Andiamo.
Senator Sessions. Just one yes or no question for Mr.
Robertson.
Chairman Leahy. In fact, if anybody else is in that same
situation, feel free.
Senator Sessions. Even after all these expenditures, is it
accurate that Missouri stripped the school district of its
accreditation in 1999 even after all this?
Mr. Robertson. The tragedy, Senator, is all this money
results in lower test scores and greater minority concentration
in the school district.
Senator Sessions. We can do better. There are better ways
to do business than the way it was done in Missouri.
Chairman 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.
Senator Sessions. Well, I have gone over a lot less than
the last three on this side of the aisle.
Chairman Leahy. I understand. No, I am not cutting off the
Senator. If the Senator wants to have another round, we will
have another round.
Senator Hatch. I suggest that we enforce the 5-minute rule,
and let's--
Chairman 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.
Senator Durbin?
Senator 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.
[Laughter.]
Chairman Leahy. What is it, 10 minutes here, 5 minutes
there?
Senator 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.
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.
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.
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.
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.
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.
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.
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.
Ms. Michelman, could you respond your view of his response
yesterday?
Ms. 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.
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.
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.
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.
So I think it again just raises the question as to whether
2 days of testimony can offset and overturn 25 years.
Senator Durbin. Thank you very much.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Smith?
Senator Smith. Thank you, Mr. Chairman. Is it 5 minutes
now, Mr. Chairman?
Chairman Leahy. We are trying. We are trying. Hope springs
eternal at this end of the table.
Senator Hatch. It is 5 minutes, though.
Chairman Leahy. For your side, I am going to let Senator
Hatch run the clock.
Senator Hatch. I refuse to handle the gavel. I know my
place.
[Laughter.]
Senator Smith. Don't start the clock until you guys--
Chairman Leahy. You are all right. Go ahead.
Senator 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.
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?
Ms. Michelman. Senator, I--
Senator Smith. And please be brief, not out of disrespect,
but I do have a couple of other--
Ms. 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.
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.
Senator 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.
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.
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?
Ms. Michelman. Well, I--
Senator Smith. Just yes or no because I am trying--
Ms. Michelman. I think we are talking about Senator
Ashcroft.
Senator Smith. I know we are, but I am trying to understand
the criteria--I am trying to understand the criteria for
choosing.
Ms. 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--
Senator Smith. And in every--
Ms. Michelman.--and Senator Ashcroft is not that Attorney
General.
Senator 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.
[Laughter.]
Senator 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.
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.
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.''
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.
Chairman Leahy. Senator Brownback?
Senator 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.
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.
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.
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.
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.
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.
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.
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.
Chairman 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.
If there are no further questions--
Senator Smith. Mr. Chairman, may I make a 10-second
comment?
Chairman Leahy. Of course. Take 12.
Senator 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.
Chairman 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.
Senator Smith. It will be very interesting to see where the
opposition came from.
Senator Hatch. If I could add something, we are glad to see
you back. It has been 8 long years without you.
[Laughter.]
Chairman Leahy. That is very good.
Senator Hatch. I have missed you.
Chairman Leahy. You are not as serious as you try to let
on.
OK. If nobody else has got a question--anybody else?
Senator Hatch. No more questions.
Chairman Leahy. We will recess for 5 minutes. Both parties
will meet out back to see where we go, how far we go.
[Recess from 4:50 p.m. to 5 p.m.]
Chairman 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.
Do you want to add anything to that, Orrin?
Senator 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.
Chairman 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.
Mr. Mason, we will begin with you, sir.
STATEMENT OF HON. DAVID C. MASON, CIRCUIT JUDGE, ST. LOUIS,
MISSOURI
Judge 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.
Senator Kennedy. Can we have order, Mr. Chairman? It is
difficult--
Chairman 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.
Judge 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Thank you.
Chairman Leahy. Thank you, Judge. I appreciate your
testimony.
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.
STATEMENT OF WADE HENDERSON, EXECUTIVE DIRECTOR, LEADERSHIP
CONFERENCE ON CIVIL RIGHTS, WASHINGTON, D.C.
Mr. Henderson. Thank you.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
I notice that my red light is on, and so I need to
summarize and I will try to do so very briefly.
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.
Thank you very much.
[The prepared statement of Mr. Henderson follows:]
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.
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. .
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.
---------------------------------------------------------------------------
\1\ Several LCCR organizations, including AARP, American Civil
Liberties Union, Anti-Defamation League, American Jewish Committee,
League of Women Voters, and the U.S. Catholic Conference, do not
generally take positions supporting or opposing confirmation of federal
officials and for that reason have abstained from joining this
endorsement.
---------------------------------------------------------------------------
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
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\
---------------------------------------------------------------------------
\2\ Senate Constitution Subcommittee Hearing on ``Judicial
Activism'', June 1997.
---------------------------------------------------------------------------
The Attorney General is responsible for carrying out the
Voting Rights Act of 1968. Yet as Governor of Missouri, John Ashcroft
twice vetoed bills to expand voter registration in St. Louis, vetoes
widely understood to limit the voting strength of predominantly
Democratic minority neighborhoods.
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.
---------------------------------------------------------------------------
\3\ The LCCR does not take a position on the issue of abortion or a
``woman's right to choose.'' However, the LCCR is committed to the
protection of existing constitutional rights, including the right of
privacy.
---------------------------------------------------------------------------
Through the Solicitor General and other litigation arms of
the Justice Department, the Attorney General is responsible for
maintaining the separation of church and state enshrined in the First
Amendment. Yet Senator Ashcroft is a leading advocate of providing
public funds to religious organizations without many of the current
safeguards that assure compliance with constitutional protections.
The Attorney General is responsible for enforcing the
Americans with Disabilities Act. Yet Senator Ashcroft has questioned
the constitutionality of the ADA and has sought to limit its scope and
enforcement.
The Attorney General exercises oversight over the
Immigration and Naturalization Service (INS). We are concerned with
several of the positions John Ashcroft has taken in the area of
immigration policy; and we are particularly concerned with the fairness
of future immigration policy under his oversight administration of the
INS. For example, Senator Ashcroft voted repeatedly in favor of
legislation that would eliminate welfare benefits, even to legal
immigrants. However, he has taken this position to the extremes by
supporting legislation that would have even denied some federal
benefits to naturalized United States citizens. This policy, which
stands in stark contrast to long-standing constitutional precedent
regarding the rights of naturalized citizens, raises questions about
his commitment to protecting the civil rights of immigrants.
In the wake of the Supreme Court's decision in Romer v.
Romer recognizing the civil rights of homosexuals, gay and lesbian
citizens look to the Justice Department to enforce their rights and
protect them from bigotry. Yet in 1996 John Ashcroft cast a decisive
vote against the Employment Non-Discrimination Act that would have
prohibited employment discrimination based on sexual orientation,
passage of which is a high priority for the LCCR. Not only did he vote
against ENDA, but he spoke in opposition to the legislation twice on
the Senate floor. He used the opportunity to voice some extreme views
on the nature of sexual orientation, including that it is a choice and
could be changed--something clearly not supported by science or leading
medical and mental health authorities.
Currently, gay and lesbian employees at the Department of
Justice and throughout the federal government are protected by the
President's executive order and other departmental policies. Given
Ashcroft's opposition to ENDA, how can we be assured that these
evenhanded policies will continue and be properly enforced?
He has also opposed a bipartisan bill to extend federal
hate crimes laws to include anti-gay violence. Clearly, statistics show
that the lesbian and gay community should be protected by our nation's
hate crimes laws. While it is heartening that John Ashcroft said
yesterday that he believes the Hate Crimes Prevention Act is
constitutional, it makes his opposition to the bill last year even more
puzzling.
Two federal hate crimes laws currently include sexual
orientation, the Hate Crimes Statistics Act and the Hate Crimes
Sentencing Enhancement Act. In addition, some anti-bias programs in the
Department of Justice help combat hate crimes aimed at this community.
Given Senator Ashcroft's extreme views on sexual orientation, how can
we be assured that he will continue to devote the necessary personnel
and resources to proper enforcement of these laws and programs?
Perhaps John Ashcroft's bias showed itself most clearly
during the nomination of James Hormel, the openly gay businessman and
philanthropist nominated by President Clinton in October 1997 to serve
as Ambassador to Luxembourg. Hormel had served as a member of the U.S.
Delegation to the 51 st UN Human Rights Commission in 1995 and had
previously been unanimously approved by the Senate Alternate
Representative of the U.S. delegation to the United Nations General
Assembly.
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.
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).
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.''
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.
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.''
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.
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.
We urge members of the Senate to vote against the confirmation of
John Ashcroft to this important position.
Chairman Leahy. Thank you, Mr. Henderson.
I would note that both you and Judge Mason went over just
about exactly, almost to the second, the same amount of time.
Judge Mason. I am sorry, Mr. Chair.
Chairman 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.
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.
Pastor, go ahead, please.
STATEMENT OF PASTOR B.T. RICE, NEW HORIZONS SEVENTH DAY
CHRISTIAN CHURCH, ST. LOUIS, MISSOURI
Rev. Rice. I think that may be debateable with some, but we
will do our best.
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.
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.
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.
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.
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.
We also oppose Mr. Ashcroft's extreme unyielding position
on a woman's right to choose.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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?
Chairman Leahy. Thank you, Pastor.
Rev. Rice. Your vote will tell the world the direction in
which we, this great Nation, will go.
[The prepared statement of Rev. Rice follows:]
Statement of Pastor B.T. Rice, New Horizons Seventh Day Christian
Church ST. Louis, Missouri
My name is Pastor B.T. Rice. I have been a pastor in St. Louis,
Missouri since 1979 and am presently the pastor of the New Horizon
Seventh-day Christian Church. I am also a member of the St. Louis
Metropolitan Clergy Coalition, the largest and oldest organization of
African-American ministers in the state. I am here today at the request
of the St. Louis Metropolitan Clergy Coalition, its president, Earl
Nance, Jr., and all of its other officers and members, to register our
strong opposition to Senator John Ashcroft's confirmation as Attorney
General of the United States of America. Our opposition centers
primarily around, but is not limited, to the following issues.
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.
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.
We also oppose Mr. Ashcroft because of his insensitivity to the
AfricanAmerican community in general, and the African-American
community of Missouri in particular.
We also oppose Mr. Ashcroft's extremely unyielding positions on a
woman's right to choose.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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!"
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.
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.
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.
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.
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.
Chairman Leahy. Thank you, Pastor.
Rev. Rice. And I didn't preach.
Chairman 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.
Mr. Woodson, Pastor Rice takes a different position than
you do.
Mr. Woodson. Yes.
Chairman Leahy. 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--
Mr. Woodson. I will.
Chairman Leahy. Thank you.
STATEMENT OF ROBERT L. WOODSON, SR., PRESIDENT, NATIONAL CENTER
FOR NEIGHBORHOOD ENTERPRISE, WASHINGTON, D.C.
Mr. Woodson. Thank you.
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.
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.
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.
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.
I have a young man here. Stand up, Vernon.
[Mr. Wise stood.]
Mr. Woodson. Vernon Wise, who is a young man, his heart had
been transformed as a consequence.
Thank you.
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.
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.
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.
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.
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.
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.
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.
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.
[The prepared statement of Mr. Woodson follows:]
Statement by Robert L. Woodson, Sr., President, National Center for
Neighborhood Enterprise
I am here to vigorously support the nomination of Senator John
Ashcroft for U.S. Attorney General, and to explain to you the reasons
why more than 150 leaders of faithbased organizations across the
country came here Tuesday at their own expense to show their support
for Senator Ashcroft. Most of these leaders, for the record, are
minority and low-income.
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.''
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.
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:
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.
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.''
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.
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.
I would like to read from a letter Senator Ashcroft wrote for one
of our publications about why he initiated the Charitable Choice
legislation:
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.
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.
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.
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.
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.
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.
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.
Chairman Leahy. Thank you, Mr. Woodson. I appreciate that.
Mr. Taylor, go ahead.
STATEMENT OF WILLIAM L. TAYLOR, ESQ., ATTORNEY, CITIZENS'
COMMISSION ON CIVIL RIGHTS, WASHINGTON, D.C.
Mr. Taylor. Thank you.
Mr. Chairman, Senator Hatch, members of the Committee, I
appreciate the opportunity to be here and present testimony.
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.
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.
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.
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.
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.
I assume my full statement will be in the record.
Chairman Leahy. Of course.
Mr. Taylor. 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.
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.
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.
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.
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.
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.
I am almost done.
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.
Chairman Leahy. Thank you.
Mr. Taylor. In summary--
Chairman Leahy. Thank you, Mr. Taylor.
Mr. Taylor.--Contrary to Mr. Ashcroft's claim of review to
follow court orders, we have a--
Chairman Leahy. Mr. Taylor, everybody has had exactly the
same amount of time as this point, both for and against Senator
Ashcroft.
[The prepared statement and attachments of Mr. Taylor
follow:]
Statement of William L. Taylor, Esq., Citizens' Commission on Civil
Rights, Washington, DC
Mr. Chairman and members of the Committee:
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.
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.
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
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.
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.)
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.
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.
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.
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''.
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
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.
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
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:
``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.
In 1995, Governor Mel Carnahan who was then the most prominent
defendant in the case, offered this comment on the history of the
litigation:
``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
26, 1995 at 3B.
Liddell: The Aftermath
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.
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.
The actions of the State legislature and the citizens of St.Louis
are quite remarkable, perhaps as remarkable as the 1983 settlement
agreement.
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
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.
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.
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.''
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.
III. ASHCROFT'S STATE RECORD: REVEALING HIS STRIDENT RESISTANCE TO THE
PROTECTION OF CIVIL RIGHTS
A. Racial Desegregation of Missouri Schools
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.
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).
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.
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).
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:
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).
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.
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).
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).
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.
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.
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).
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.
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).
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.
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).
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).
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).
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).
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).
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).
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:
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).
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.
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.
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,
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.
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.
At 9:30 a.m. I went to see the law clerk in the Judge's office. I
explained the difficult State situation.
I spent the afternoon in St. Louis at the Counselling and
Recruiting Center finding out procedures.
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.
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.
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.
Rev. Ben Martin called to say that some board members had called
him wanting information and don't know how to get it.
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.
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.
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.]
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January 17, 2001
Addendum to the testimony of William L. Taylor
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.
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?
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).
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.
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?
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? ''
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.
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.''
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.)
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.
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.
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.
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.
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.
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Chairman 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?
Senator Hatch. I don't know.
Kay, can you be here tomorrow? Because if you can, that
would be better to have you.
Chairman Leahy. I am trying to accommodate her.
Senator 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.
Chairman Leahy. I think we want to just keep to the--
Senator Hatch. Why?
Chairman 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.
Why don't you give your testimony, Ms. James.
STATEMENT OF KAY COLE JAMES, HERITAGE FOUNDATION, WASHINGTON,
D.C.
Ms. 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.
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.
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.
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.
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.
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 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.
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 the Nation as a whole
and his refusal to be silenced by those who believed that mere
discussion of personal faith in public life is a danger to be
suppressed. Indeed, Al Gore professed wondering what would
Jesus do when confronted with a difficult situation.
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.
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.
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.
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.
[The prepared statement of Ms. James follows:]
Statement of Kay Coles James, Heritage Foundation, Washington, D.C.
Mr. Chairman and Members of the Committee, thank you for the
opportunity to testify on behalf of the nomination of John Ashcroft to
be Attorney General of the United States. My name is Kay Coles 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 head of the National Governors'
Association; as a candidate for and then as a member of the United
States Senate; as a presidential candidate; and as a conservative
activist.
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.''
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Thank you.
Chairman Leahy. 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.
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.
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.
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.
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.
If that is correct, is that something that would have
helped children, and how did the court react to that?
Mr. 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.
Chairman 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.
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?
Ms. 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.
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.
Chairman 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?
Mr. 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.
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.
Chairman Leahy. The red light is on, so I yield to Senator
Hatch.
Senator 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.
Chairman Leahy. Then we will go to Senator Kennedy.
Senator Kennedy. Thank you very much. And thanks very much
to the panel for all of your comments.
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.
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?
Mr. Henderson. That's right. And he did not submit the
plan, and--
Senator Kennedy. Excuse me. Did he submit the plan?
Mr. 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.
Senator Kennedy. Now, this is how long after Brown v. Board
of Education?
Mr. Henderson. This is 1981, so it is 26 years after Brown.
Senator Kennedy. 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?
Mr. 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.
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.
Senator Kennedy. 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?
Mr. 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.
Senator Kennedy. And did at some time this get settled
after Governor Carnahan--
Mr. 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--
Senator Kennedy. OK. How are the students doing, very
quickly?
Mr. 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.
Senator Kennedy. 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.
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?
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.
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.
Chairman Leahy. Senator Specter?
Senator Specter. Thank you.
Mr. Taylor, you have an extraordinary record for civil
rights beyond any question, and I compliment you for that.
Mr. Taylor. Thank you, Senator.
Senator Specter. 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?
Mr. 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--
Senator Specter. I was here. The follow-up question to that
is: Did the court ever hold him in contempt?
Mr. 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.
Senator Specter. I heard you said that before, and those
are tough words. Did the court ever impose sanctions?
Mr. 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.
Senator 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.
So I just wonder why, if it was all that bad, no sanctions
were imposed on Ashcroft.
Mr. 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.
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--
Senator 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.
Mr. Taylor. Right.
Senator Specter. 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.
Mr. 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.
I can testify, Senator, because I spent a lot of time out
there, that race relations have been in a very difficult state.
Senator 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?
Mr. Woodson. There has never been--
Senator Specter. May the record show my red light just went
on.
Mr. 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.
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.
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.
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.
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.
Chairman Leahy. Thank you.
Mr. Taylor. Senator, I need 15 seconds, at the risk of
offending the Committee. In St. Louis today, and in recent
years, 12,000 to 13,000 children get on buses every day to go
from the city to the suburban schools. Their parents have
decided that they are getting a better education that way. So
whatever statistics may be cited, those are the facts in St.
Louis.
Chairman Leahy. Senator Hatch and I have said we will come
back at 9, but I understand Senator Feingold just wanted to
make a statement.
Senator Feingold. Mr. Chairman, I know that there is no
time for my round at this point. I don't want the day to end
without briefly first thanking all the panel for coming,
including Ms. James. But I can't let the day end without just
commenting on this notion that somehow the opponents of Senator
Ashcroft have engaged in religious profiling.
Now, I decided to say some kind things about Mr. Ashcroft,
including--I made the mistake of saying I had a good working
relationship with him. And as a result of that, we have had a
lot of meetings with a lot of people I care a lot about, both
in private and in public, with every single group. Every single
time not a single one has ever said anything about his religion
other than to praise it, other than to admire it. This takes
things to a level that I think is unacceptable, and as somebody
that is, frankly, right in the middle of this, that is an
unfair accusation with regard to the opponents of Senator
Ashcroft.
I appreciate it, Mr. Chairman.
Chairman Leahy. Well, with that, as we have stated--and I
have found no objection from Senator Hatch on this--there is
nobody on this Committee on the other side that has attributed
the kind of racial things--
Senator Hatch. I agree with you--
Chairman Leahy.--To Senator Ashcroft, and I agree with what
the Senator from Wisconsin has said. Really I resent very much
the suggestion that we raised any question about Senator
Ashcroft's religion, because I hold my religion very, very dear
to me, and I would resent anybody holding that against me. And
I resent very much any suggestion that if you question a
person's politics, their positions, their steps, the things
they might do as Attorney General, that somehow you are
attacking either their race or their religion. That has not
happened from either Republicans or Democrats in this
Committee, and I want that very, very clear.
Senator Hatch. Well, let me just say this: I interpreted
Ms. James as saying that some of the commentators and others
have been bandying this around like it is reality. I haven't
heard anybody on the Committee or anybody in the Senate make
any improper remarks.
Senator Sessions. Mr. Chairman, on that subject, I think
the tone of some of the remarks that have been repeated, like
deeply held beliefs, deeply held beliefs, and things of that
nature, have suggested that because he has a rich religious
faith that somehow he can't work within a legal system and
comply with the law. That is my sensitivity to it. I think it
has been suggested--
Chairman Leahy. You are hearing a trumpet--
Senator Sessions.--And it is all right for this witness to
reply to it. That is all I was saying.
Chairman Leahy. You are hearing a trumpet that the rest of
us do not hear.
Senator Hatch and I have both stated and made it very clear
that neither we heard from this panel anybody who ascribes
either religious or racial bias to Senator Ashcroft, nor have
we heard him say that about any of us.
With that, we will stand in recess.
[Whereupon, at 6:09 p.m., the Committee was adjourned, to
reconvene at 9 a.m., Friday, January 19, 2001.]
NOMINATION OF JOHN ASHCROFT TO BE ATTORNEY GENERAL OF THE UNITED STATES
----------
FRIDAY, JANUARY 19, 2001
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:07 a.m., in
room SR-325, Russell Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Kennedy, Feinstein, Feingold,
Schumer, Durbin, Hatch, Grassley, Specter, Kyl, DeWine, and
Sessions.
Chairman Leahy. Some have asked whether we are going to be
able to finish all the witnesses scheduled today. We are going
to finish all the witnesses, and Senator Hatch and I are
determined to try to keep everybody on timee, ourselves
included. And so I am going to ask Senator Hatch to help with
the people on his side of the aisle, and I will work on the
people on our side of the aisle.
Judge Mason. We expect that you are going to speak softly.
Chairman Leahy. Speak softly. That is Judge Mason's
suggestion, speak softly, but I am carrying a big stick.
Senator Feingold is next to be recognized. Senator
Feingold?
Senator Feingold. Thank you, Mr. Chairman. And, again, I
thank the panel.
What I would like to start with is to ask the panelists who
are opposed to the nomination to say a little bit about some
things that have been suggested to me over this process about
Senator Ashcroft. What some folks were saying to me at the
beginning was that he switched dramatically in his ideology and
his approach in the last couple of years, that he became much
more conservative and much more ideological for purposes of
political reasons or whatever it might be.
During the hearings themselves, though, what seems to have
been presented is more of a picture of somebody who has been
consistently somebody who is what some refer to as very much on
the right or very hard right and very aggressive about it.
I would like the three of you to address which is more
accurate in your view, starting with Mr. Henderson.
Mr. Henderson. Thank you, Senator, and good morning. It is
a difficult question because the dichotomy that was in evidence
here in the hearing room between Senator Ashcroft's
presentation to the Committee and the record of Senator
Ashcroft accumulated over a 30-year period presented a very
stark contrast.
To be perfectly frank, and meaning no disrespect to Senator
Ashcroft in any way, his moderation was such that, you know, he
sounded as if this were a Clinton administration nominee to
head the Department of Justice because of his emphasis on
fairness and integrity and the desire to enforce the law as
written. And yet, in looking at the zeal with which he enforced
his responsibilities as Attorney General, as Governor, and
during his term as a Senator here in the U.S. Senate, he showed
a zeal, a passion, all of which is absolutely appropriate and a
reflection of his personal views, but which pose a problem
when, in fact, he is assigned responsibilities for enforcing
statutes for which he has had the most significant hostility in
terms of his previous statements.
It is hard to evaluate which of the two Senator Ashcrofts
in evidence--
Senator Feingold. But it doesn't sound like you see a
dramatic shift as having occurred when he became a United
States Senator.
Mr. Henderson. I really did not, Senator. Now, in fairness,
I am not a personal acquaintance of Senator Ashcroft in any
way. I can only evaluate the record accumulated over a period
of time. But it is, I think, the record that has to be the
basis of our reliance on what we can anticipate if and when
Senator Ashcroft were to assume the position of Attorney
General.
Senator Feingold. Pastor Rice?
Rev. Rice. I think that there is a level of consistency,
and it has been consistently, in our view, even as Attorney
General, even as the Governor, and now as Senator, against
those positions that African American views and against what I
would consider the sensitivity of African Americans. He was
consistent and very strong in opposition against the voluntary
desegregation of the city of St. Louis for our schools and our
children, his insensitivity toward the inflammatory remarks
made to Judge Ronnie White, and then several times has given
opportunity--I know our chairman, and others on this side of
the aisle, has asked him to even return his honorary degree,
and to this point he has refused to do that. That flies in the
face of a community which he represents. And then his
inconsistency as far as voter registration in the city of St.
Louis.
So I would look at those views as that he has been opposed
to many issues that African Americans care about.
Senator Feingold. Thank you.
Mr. Taylor?
Mr. Taylor. Senator Feingold, I have not followed the
twists and turns of Mr. Ashcroft's career throughout, but I did
know him, I did know his work and his positions beginning in--
at the end of the 1970's and the beginning of the 1980's. And I
have to say to you that, however you characterize these
ideologically, he was strongly in resistance to vindicating the
rights of children that had already been declared by the
courts.
Senator, I thought you set up a good stand on the first day
of the hearings when you said that the test ought to be whether
the nominee will take care that the laws be faithfully
executed, because that is the President's duty and that is
carried out through the Attorney General more than anybody
else. And I would say you have to look at the whole record
rather than any confirmation day pledge in that regard.
I don't have to remind the Committee of this, but it is not
just Federal officials but State executive and judicial
officers who are bound by the Constitution and have to take an
oath to support the Constitution. That is under Article VI,
section 3 of the Constitution. And I would submit to you that
Senator Ashcroft did not carry out those duties as Attorney
General, that he was so in defiance of the law as to permit no
other conclusion that he did not carry out his constitutional
responsibility.
Senator Feingold. I take it you feel he is not capable of
faithfully executing the laws of this country.
Mr. Taylor. I would say you have to make that judgment in
terms of the record, and I think the record is pretty clear.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
I apologize to my two colleagues. I have forgotten who was
next. Has the Senator from Ohio already asked questions?
Senator DeWine. I have no questions, Mr. Chairman.
Chairman Leahy. The Senator from Alabama.
Senator Sessions. I would just want to point out that in
his remarks on the floor about Judge White, there were some
comments that he had called him pro-criminal or called Judge
White that kind of name. But it is quite clear--and I am
reading from his statement: ``I believe Judge White's opinions
have been''--``and, if confirmed, his opinions''--I am quoting
directly--``his opinions on the Federal bench could continue to
be pro-criminal and activist.'' And that was his concern, that
the opinions were that way. Now, maybe it is reported a
different way, Reverend Rice, and I appreciate your concern,
but it is difficult--in shorthand, say pro-defendant and pro-
criminal, bleeding heart liberal. I mean, how do you describe
an opinion that tilts in your view more to the criminal side
than the other? And I don't think he meant that in a mean-
spirited way. I just wanted to point that out.
Mr. Taylor, I know you were the litigation and the lawyer
and a long-time person involved in this spasm of a case that
lasted for decades--over a decade, I guess, and it was intense.
But in my view, I do not believe it is fair to say that John
Ashcroft didn't care about children and education because he
resisted your idea of what the kind of settlement in that case
ought to be.
By the way, you indicated yesterday--and I wasn't sure of
your testimony--about a Federal district judge criticizing
certain State filings. Do you remember going into that
yesterday?
Mr. Taylor. Yes, I do, Senator.
Senator Sessions. And I believe you indicated those were in
1985 to 1992?
Mr. Taylor. Yes, but what I said--
Senator Sessions. Yes or no? Yes or no?
Mr. Taylor. This was during the period when Mr. Ashcroft
was Governor. I did make--
Senator Sessions. All right. Well, when he was Governor,
the filings that you criticized him for yesterday were when he
was Governor, not Attorney General?
Mr. Taylor. I thought I carefully distinguished between
what the court said during the period when he was Attorney
General and they were dealing with his conduct directly and
what Judge Stephen Limbaugh said during the period when Mr.
Ashcroft was Governor. If I didn't make that clear, I will make
it clear right now.
Senator Sessions. Well, I didn't pick it up. Someone raised
the question after the hearing, and we began to look at it. And
isn't it the Attorney General that is the lead lawyer, the
litigator for the State of Missouri?
Mr. Taylor. That is correct, and in my testimony I say--I
think if you check the record, you will find I am correct. In
my testimony I say I have no way of knowing what Governor
Ashcroft's personal participation was in these matters. But I
do say that it was a continuation of the policies of resistance
and evasion that occurred when he was Attorney General.
Senator Sessions. Well, pardon me if I am offended. Pardon
me if I am offended that you say now you don't know what his
personal motives were and he wasn't the Attorney General, he--
let me finish--he was the Governor, and these filings that you
complained about and made a big deal about yesterday were not
filed in his name, were filed in the Attorney General's name,
successor Attorney General. And I believe that was an unfair,
subtle mischaracterization that very few people hearing your
testimony would have missed, and I believe it was stated in a
way that you understood what you were doing, in my opinion.
Mr. Taylor. No, Senator, you--
Senator Sessions. You are still a lawyer. I don't believe
you would have left that--
Can the witness answer the question, please? Could he be
entitled to fairness--
Chairman Leahy. The witness is entitled to answer the
question.
Mr. Taylor. Senator, that is simply wrong. I quoted--
Senator Hatch. The comments, too, of the Senator.
Mr. Taylor. I quoted statements that were made by Judge
Hungate in 1981 and Judge Hungate in 1984 when Senator Ashcroft
was then Attorney General. Those are the bulk of my statements.
At the end I quoted some statements by Judge Limbaugh when
Senator Ashcroft was then Governor. I don't think I misled
anybody in any way, and I think if you review the record, you
will find that is the case.
Senator Sessions. Well, I was misled. Maybe most--you had
to listen very carefully not to have been. I just think you as
an attorney in the case could have made it much more clear had
you desired to do so.
Mr. Chairman, I think my time is about up.
Mr. Taylor. May I just answer the first thing you said,
Senator?
Senator Sessions. Yes, sir.
Mr. Taylor. You said that Mr. Ashcroft just opposed my
solutions in the case. I point out to you that all of these
quotations were from judges and that he never offered any
alternative to the plan that was adopted and agreed to by 22
suburban school district, the city Board of Education, and the
class of plaintiffs.
So I think the record will stand for itself on that.
Senator Sessions. Well, let me just add that, with regard
to this order that you pointed out, just briefly--my time is
about over, but it did direct--the order was to all government
agencies, not just--the Attorney General wasn't the one--the
Attorney General can't do a plan that the other government
agencies who are defendants don't participate in effectively.
Am I correct?
Mr. Taylor. That is correct, Senator, but the court noted
at one point that the Attorney General was thwarting the
ability of the Department of Education to cooperate, that the
Department of Education wanted to cooperate in the development
of a plan, but essentially Mr. Ashcroft as Attorney General was
directing them not to cooperate.
Senator Sessions. That is not what the court order said.
Mr. Taylor. I will furnish that for the record, Senator.
Chairman Leahy. Again, I apologize to my colleagues down
here. I have forgotten. Has the Senator from New York--have you
questioned this panel?
Senator Schumer. I have not.
Chairman Leahy. And the Senator from Illinois, have you?
Senator Durbin. Yes.
Chairman Leahy. You have not?
Senator Schumer. No. I am ready to.
Chairman Leahy. OK. The Senator from New York?
Senator Schumer. Thank you, Mr. Chairman. Before I ask my
questions, I just want to make a comment. I wasn't here for the
discussion of religion, and I just want to make a statement
here based on what happened last night.
First, I want to say I think that a person of deep
doctrine, someone who had a deep faith, is an admirable person,
and I respect it. I believe in God myself, and when God is
talked about by public figures, I think that is a good thing.
When Joe Lieberman did it, I was proud of that. I am proud when
anyone of any faith--Christian, Muslim, any other faith--talks
about God. I think that is a good thing. I think all of us and
all of our families can use more of that.
That has very little to do with carrying out the laws of
the land, and we have a separation of church and state. And for
those who think that because someone has deep religious beliefs
they shouldn't be asked when they are nominated for Attorney
General, whatever religion they are, will they carry out the
laws of the land, even if those might conflict with some
elements of their faith, they are sadly mistaken. That is our
obligation here. We are not a theocracy. We are a democracy
where many people of deep faith participate, and participate
actively, as they should. That is healthy for the democracy.
But I think to cross the line and say that we shouldn't ask
questions about how someone will enforce the law, no matter
what their faith is, or if they are an atheist, is wrong.
I mean, if there were a Quaker nominated to be Defense
Secretary and that Quaker was a devout pacifist, we would be
obligated to ask questions about whether they would try to
unilaterally disarm the country, and no one would object to
that. And it is the same thing here. So I just think we ought
to put that argument to rest.
Let me ask a question. I would like to ask this
particularly of Mr. Henderson and of Pastor Rice, but anyone
can join in.
There has been a lot of conversation and feeling that,
given the election, given what happened in Florida, given,
frankly, this nomination, that African Americans, the African
American community, by and large, feels aggrieved, not part of
the process, not treated accurately--not treated fairly, and is
worried, I guess, about the future, and a lot of our
discussions here involved civil rights and the whole issue of
race, which, as de Toqueville pointed out in 1830, was the
poison of America.
I would like to ask first Mr. Henderson, but then others, a
few things that you would recommend President-elect Bush to do
and, if he were to become Attorney General, Attorney General
Ashcroft to do to help heal that divide. I would like Mr.
Henderson to go first, but I would open it up to anybody in the
panel in that regard.
Mr. Henderson. Senator, thank you. That is a difficult and
very challenging question.
I think as you will hear in the course of discussion in
response to your question, African Americans have a variety of
views on issues affecting our community. Having said that,
however, I do believe that one can discern from the vote in
this past election the depth of commitment in at least this
instance to one of the two major Presidential candidates, and
obviously we know that it was not the winner of this election.
The question of alienation among African Americans from a
political perspective I think is very much in evidence. The
desire to participate fully in the democracy of our country, to
participate fully as participants in the body politic, is very,
very strong, and it accounted, I believe, for the tremendous
surge in voter registration among African Americans,
particularly in communities where issues affecting the lives of
ordinary people ran deeply, in Florida, in Missouri, and many
States around the country.
I believe that the reports of voter irregularities,
disenfranchisement among selected communities, both African
American but other communities as well, indeed did reinforce a
sense of alienation among some African Americans. And it has
raised profound questions about whether we are full
participants in the body politic.
If this had happened in 1865 or 1877, that would be a
different matter. But this was in the year 2000, and so it
really did reinforce in a very deep way the degree to which we
are not full participants in the body politic.
We turn around now to look at appointments to be made by
the new President, and the first among them in terms of a
position that has broad impact on domestic policy and the
enforcement of laws affecting every citizens is indeed the
Attorney General. And I have attempted to distinguish the
Attorney General's appointment from other Cabinet officers, not
to say that other officers aren't important, but that the
Attorney General's position has a special relevance.
Having said that, one would have expected a conservative.
There is no question about it. You know, there is no question
that we expected a conservative appointment. But conservative
appointments are very distinct. A Senator Orrin Hatch is one
kind of conservative appointment that people have great respect
for and in positions of leadership, but that is not what we
got. And the distinction I draw is one of fairness and balance,
a willingness to reach out, to listen to people of the other
side, even where you may have a fundamental disagreement. And
to have a candidate who has a record of not enforcing--let me
take that back--of engaging in provocative activity around
fundamental issues, whether it is school desegregation, voter
rights and voter participation, the issue of integrity in how
the nomination not just of Ronnie White but of other
Presidential candidates was handled, all of that raises
profound questions of what kind of leadership we can expect at
the helm of the Department if this nomination is confirmed.
And so, you know, to be perfectly frank, I think that the
skepticism and, indeed, the opposition to this appointment
which is heard in many quarters in the African American
community is grounded on the solid evidence of a public career
accumulated over 30 years, that this is an individual whose
sensitivity to the concerns of our constituency, of our
community, notwithstanding gracious gestures that he may have
taken with respect to his personal participation in various
programs--we are talking now about policy, not about an
individual's personal predilections to support particular
programs. And in that respect, from a policy standpoint, we are
saying that there are real concerns and they are grounded in
the evidence that the record supports.
Chairman Leahy. Thank you.
Senator Schumer. Mr. Chairman, could I just ask unanimous
consent--because I know Mr. Woodson wanted to say something.
Chairman Leahy. Oh, I am sorry. I didn't realize--
Senator Schumer. But maybe I could ask unanimous consent
that everybody be allowed to submit answers to this in writing.
Chairman Leahy. Also, if somebody--I don't want to cut any
of the answers off. I am cutting off the questions, but I don't
want to cutoff the answers. Did you want to say something, Mr.
Woodson?
Mr. Woodson. Yes, I did, because I think--
Senator Schumer. And Pastor Rice.
Chairman Leahy. You and Pastor Rice, whoever wants to go
first. Pastor Rice, then Mr. Woodson.
Rev. Rice. Thank you, Mr. Chairman. And, Senator, I think
the question can be answered at least from our perspective as
clergy and those that are responsible for several thousands of
individuals in the State of Missouri that are members of the
faith community. Let me say that this divide is greater than
what I have ever witnessed in my lifetime with Senator
Ashcroft. And, quite frankly, I would say that there are so
many other qualified individuals in the Republican Party. I
think that John Danforth and, of course, Senator Hatch and--I
could go on and on, a litany of groups that would be qualified.
But I think that if you were to ask me what I would
recommend humbly to now President-elect Bush, it would be to
pull this one off as Attorney General, find another slot for
the Senator, and to find someone that was not quite so
controversial. This would allow us to do what one of his
mandates says, and that is to pull our Nation together and to
do what I think really needs to be done so that we can become
more like one America. That would be my suggestion.
Mr. Woodson. Yes, let me just say it is just fascinating,
Senator Feingold, when you asked the question about whether or
not he is hard right, as if that is a pejorative. But we don't
ask that of those--we can understand bigotry if it is closed in
right-wing rhetoric, but we don't say this about the left, as
if bigotry cannot be expressed on the left.
Let me just say this about the black community--and, again,
everybody would be offended if somebody were to say, well, what
is the opinion of white America on issues. There is no single
opinion of white America, and there is no single opinion of
black America. So I wish you would qualify it as far as the
aggrieved.
I have submitted as a part of my testimony surveys by the
Joint Center for Political and Economic Studies that surveyed
the attitudes and priorities of black America, and what these
surveys revealed, 28 percent, crime and violence; education, 32
percent; health care, another 20 percent; 2 percent registered
race as the primary concern of them. And what you had in this
campaign is a hate-filled, bigoted campaign that characterized
George Bush as a bigot and as a racist, and that kind of--yes,
I am talking about the ads showing a pickup truck dragging and
chain and saying that because George Bush voted against hate
legislation, he is a bigot. I mean, you should have heard the
black talk shows.
The point is that black America's concerns are not defined
by what you are describing here in terms of voter interest. The
first three witnesses before the Civil Rights Commission were
three black people who presented no evidence that there was any
kind of conspiracy to deny them the opportunity to vote. And so
I think that this is a red herring on the whole issue that
somehow black America is sitting around their dining tables
preoccupied with voter education. They have many more issues of
concern. Nine thousand blacks are killed by other blacks in
America, and only nine die as a consequence of hate crimes. The
issue is what are our priorities in this country, and I think
that is an important issue to put on the table.
We have found in our experience that Senator Ashcroft
addresses the issues of faith-based healing agents, has been
very supportive, and we think he will make an outstanding
Attorney General, and that is the opinion of some black
Americans who differ from other black Americans.
Senator Schumer. Thank you, Mr. Chairman.
Senator Feingold. Mr. Chairman?
Chairman Leahy. Yes.
Senator Feingold. I would just like 10 seconds to respond
to the reference to my remarks.
Chairman Leahy. Go ahead.
Senator Feingold. Mr. Chairman, I certainly did not refer
in a pejorative way to John Ashcroft or his conservative views
or views to the right. In fact, I stated specifically that I
don't think conservative viewpoints, ideology, or votes is a
sufficient basis to reject the nomination. All I asked was
whether there had been a dramatic change in his approach since
he became U.S. Senator, and I would like the record to reflect
that.
Chairman Leahy. Thank you.
Mr. Taylor. Senator, can I give a brief answer to Senator
Schumer's question?
Chairman Leahy. Yes. And then we will go to the Republican
side.
Mr. Taylor. I just want to--there are many things, Senator,
but I just want to offer one, and that is that I hope that
whoever is the Attorney General of the United States will carry
forward the policies embodied in Brown v. Board of Education,
and in the Civil Rights Act of 1964, and promote the diversity
and desegregation of public schools.
We have recently found the most curious and painful
development, and that is after all the years of seeking to
achieve compliance, there are a few Federal courts that are
holding that if a--that if local officials seek to desegregate
their schools and diversify their schools, they are improperly
taking race into account.
This administration has fought--the current administration,
the outgoing administration has fought to maintain diversity in
the public schools. President Clinton said that the alternative
to integration is disintegration.
This has been the battle--you know it as well as I--for--
it's a century-long battle to end racial divisions in schools
and in other aspects of our society, and it is very troubling
at this point that it is coming back again in this form and in
the form of a person being nominated for Attorney General who
has a record as supporting segregation over so long a period of
time. So that would be my hope for whatever happens in the
future.
Judge Mason. Could I have just a couple of minutes to
respond to Senator Schumer's question?
Chairman Leahy. Excuse me, Judge. I have no objection.
Senator Kyl is next, but go ahead.
Judge Mason. The question was what we recommend. First off,
without doubt, since we clearly have a national interest in how
our President is elected, there should be a discussion about
the national process or some sort of acceptable standards to
the electoral process, so that people in Wisconsin can be
assured that the electoral votes won in Florida were done
fairly and vice versa, and that should be thoroughly
investigated by you. We should look at the types of machines in
municipalities that we use to count votes to make sure that in
the poorest areas of our country's there is equal access to
effective voting processes that would be available to richer
areas. And certainly, that's a national policy that we should
begin.
We should encourage civil organizations that engage in
voter registration to work equally as hard with voter
education, so when people go into the polls they know something
about a butterfly ballot, if it's still being used; they
understand the importance of pressing hard so you don't have
the dimpled chad or the pregnant chad, whatever you want to
call it, and their vote will have a greater likelihood of being
counted. Those are three things that can be done on a national
level that I think could be very, very effective.
Two quick points. John Ashcroft has never been in favor of
segregation. OK, he's never been in favor of segregation. I've
never heard that man once say, ``I don't want my kids going to
school with black kids'', or anything like that. You have to
understand the nature of St. Louis, how the boundaries at the
seat of St. Louis are very limited, how we have 70 or 80 other
school districts outside the city of St. Louis, and the
difficulty of forcing those school districts, which were the
beneficiaries of white flight from St. Louis, to get their kids
to go back into St. Louis. Many black people in St. Louis have
said time and time again, ``Why don't we improve the schools in
St. Louis so that the white residents of St. Louis, who are
sending their kids into private schools and Catholic schools,
would look at the public schools as a viable alternative?''
That's where the integration would have been successfully
occurring in the city of St. Louis, rather than when people who
made their personal decision to live elsewhere--and their
motivations may have been poor motivations, but nonetheless,
you can't make people move. And that was one of the serious
problems, which quite frankly, has never really been discussed
or addressed.
Finally, I don't think anyone on this panel would say that
a person who was a zealous prosecutor shouldn't be a judge, or
a zealous public defender shouldn't be a judge. And Ashcroft
was a zealous Attorney General, granted. I don't know if I
would have done it the same way, but I may have done some other
things differently. Nonetheless, we should not get in the
business of saying that because somebody was a zealous lawyer,
which they have a professional duty to be, that they cannot now
set that aside in a different role. Otherwise, you would never
have anybody who was a zealous advocate ever become a judge,
especially a prosecutor or a defender, because people will
assume that they are not capable of setting that aside, and
we're called upon to do that all the time with judges. Many
times I have made decisions as a judge that I would not make as
a legislator, because the law is the law is the law. It is
nonpartisan. And if you have somebody who comes before you and
swears to you that they will follow the law, and you have no
reason to think that they are a liar to you, then I think the
appropriate approach is to advise the President over how that
person should proceed, but to give the President your consent
to their appointment.
Chairman Leahy. Judge Mason, many would agree to that. I
recall Bill Lann Lee coming before this Committee and swearing
to uphold the law, and being told by Senator Ashcroft and
others he did not believe him.
Mr. Taylor. That's politics and vengeance--
Chairman Leahy. Let me finish. I am not talking about
politics and vengeance. I am talking about Senator Ashcroft's
standard, the standard he has established on this.
Incidentally, on your point on voting machines and so on, I
might add one thing, that I would hope that all of us
Republicans and Democrats could agree on, that we try to find
some way to provide funding to the states so that each state
could have one uniform way of voting within their state. I am
not talking about a national thing that says Arizona has to
have the same ballot as Vermont, but that within a state that
they could have the same kind of ballot. Then you could give
the same kind of education to everybone, about what the ballot
will look like, whether the voter is in a poor section or a
rich section, whether the voter is white, black or anything
else. All areas, all polling areas would have the same access
and the same up-to-date equipment, not just the affluent areas
versus the poor areas, but every part of the state, no matter
where you vote, affluent area, poor area, minority, non-
minority, Republican, Democrat, every single place you vote is
precisely the same, the same type of equipment, the same type
of ballot. I think we would all be better off with that.
Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman. I do not have any
questions. I do have two comments, one in view of what you just
said with regard to what you attribute to John Ashcroft as his
standard. He has denied it, but you are attributing to him a
standard with respect to ideology, and frankly, I do not know
whether you disagree with the standard or not because you seem
poised to apply that precise standard to his confirmation here.
I would also ask my friend, Chuck Schumer, respectfully, to
reconsider a view that he expressed a moment ago, that we have
reason to question Senator Ashcroft's potential service because
of his religious beliefs.
Senator Schumer. I did not say that. I did not say that.
Senator Kyl. Well, I thought that is precisely what you
said. If you would like to clarify it before I finish my
comment, I would be pleased to have you do that.
Senator Schumer. I would. Let me clarify it right here. It
is not because of--I respect his religious belief. We should
ask any nominee for Attorney General whether they could enforce
the law, and it is not because of his religious beliefs. It is
because of what in his public life he has advocated in the
past.
Senator Kyl. Well, I hope that that is the case.
Senator Schumer. And I think--if I might continue--that
Senator Ashcroft accepted that premise when he answered the
question. And I did not say he could or could not. I was just
asking him the question.
Senator Kyl. Well, let me tell you why I raise the issue,
Senator Schumer, because you said, ``For example, we would
question a Quaker about whether he would provide for a strong
defense because of his belief in peace and so on.'' I thought
what you were saying is that there might be something in the
religious beliefs of a candidate that would cause us to
question him about those beliefs.
Senator Schumer. No.
Senator Kyl. Now, if I misunderstood the purport of your
question--
Senator Schumer. You did.
Senator Kyl. Then I am pleased not to ask you to question
your view, but that is the way I heard it.
Senator Schumer. OK. Yes, you misinterpreted what I said.
Senator Kyl. I am pleased that we are not then inquiring
into the qualifications or the potential service of a person
because of his religious beliefs.
Senator Schumer. No.
Senator Kyl. Thank you. Thank you, Mr. Chairman.
Chairman Leahy. Again, I beg the pardon of the senior
Senator of California. I cannot recall, did you question this
panel yesterday?
Senator Feinstein. No, I did not.
Chairman Leahy. You did not. Then you would be next, and
then Senator Durbin would be next.
Senator Feinstein. Thank you very much.
I would like to ask Mr. Taylor a question. As one who
represented the NAACP in the St. Louis school segregation case,
I think you have described Senator Ashcroft as an--and I
quote--``a bitter opponent of school desegregation.'' The
question I would like to ask is in his response to Senator
Kennedy, Senator Ashcroft contended that his actions were based
on fiscal considerations as opposed to any opposition to
desegregation. What is your reaction to this response, and what
facts can you present to us in this area?
Mr. Taylor. Well, Senator, one, when Mr. Ashcroft, in 1984,
ran for Governor, he described this--he described desegregation
plans, voluntary desegregation plans as an outrage against
human decency. That's how he was quoted in the St. Louis Post
Dispatch. That sounds to me like his objections were more than
fiscal.
And I want to make clear that I recognize that I am a
strong advocate as a lawyer, but what I have described is what
the courts have said about Mr. Ashcroft's defiance of laws. In
the same campaign he said that he would be--he bragged that he
was almost held in contempt by Judge Hungate.
Now, a few minutes ago Judge Mason--
Senator Feinstein. Pardon me. Where did this happen? You
said he bragged--
Mr. Taylor. It's in my testimony. It's in the--
Senator Feinstein. No, no. Where did he do this?
Mr. Taylor. He did this on the stump in the Republican
primary for Governor in 1984.
A couple minutes ago Judge Mason talked about alternatives
to desegregation. I just want to point out that, No. 1, Mr.
Ashcroft opposed funding of the magnet schools in St. Louis,
which have turned out to be very successful in maintaining
integration and improving education.
Senator Feinstein. Did he give a reason?
Mr. Taylor. I don't know what his reason was. But in our
latest hearing, the state's own witness, David Armor, said
these magnet schools have been quite successful in St. Louis.
Secondly, he opposed--and I'll make this a part of the
record--he issued a press release in 1984 in which he said he
was opposed to school improvements--to the court order for
school improvements within St. Louis. Now, that may have been
on fiscal grounds, but he described it in pejorative terms as
just a shopping list. In fact, what the Court of Appeals had
said is we need to--this agreement should have the kinds of
programs supporting it that will get the schools up to triple A
status in St. Louis with respect to their bonding authority.
And finally, it was not--when you say the suburbs were--the
borders had to be disregarded if you have any meaningful--to
have any meaningful desegregation, this was a voluntary
agreement with 22 suburban school districts. And they all
agreed, and the agreement has proved very, very successful.
So Senator Ashcroft opposed all of these measures across
the board, described the voluntary agreement in the way I've
described to you, Senator, and never offered any other
alternative to achieve equal opportunity for the students.
Senator Feinstein. I think Mr. Woodson wants to respond.
Mr. Woodson. Just a quick comment, because what Mr. Taylor
was saying, expressing Senator Ashcroft's view as if somehow
that's extreme.
I'm a veteran of the civil rights movement, have gone to
jail, worked 5 years at the Urban League. I can tell you,
consistently since the late 1960's to today, there have been
sharp divisions in the black community over the desegregation
the way it was planned. We do not describe that the opposite of
segregation is not integration, it's desegregation.
In Prince George's County and all over this country, the
community has been in an uproar because we've been busing our
children out and whites move further out. We had a magnet
school in Prince George's County that had an opening for 500
children, and you had 2,000 black children wanting to get in
that slot, but they were being held for white children in the
name of integration. And some of us opposed that. We had our
schools where 80 percent were black, when the test scores began
to soar because they brought in competent administrators,
engaged the parents, and the children were learning, the NAACP
filed a lawsuit because the schools were 80 percent black, and
so when I debated Julius Chambers, head of the NAACP Legal
Defense Fund, and I said, ``Julius, if we have a situation
where we've got the presence of education excellence and the
school is black, and there's diminished excellence in the
second school that is, quote, integrated, where do we send our
children?'' He says, ``To the latter.''
So the point is that there's tension within the black
community on that, and so this isn't something we ought to
vilify Senator Ashcroft for holding to views that are shared by
almost half of the black community.
Senator Feinstein. Mr. Woodson, let me just respond to
that. I mean, I am one that is undecided on this nominee. It
would be very hard for me, for my one vote, to cast a vote for
someone that was opposed to civil rights, basically, as the
chief law enforcer.
Mr. Woodson. I would agree.
Senator Feinstein. It is hard for me to predict what may
happen in the next 4 years that would need a strong Attorney
General to enforce the civil rights law. I want to feel that
the man that I support is going to be pro-civil rights, is
going to take that position. And this is one of the areas, I
think, where your basic philosophy will influence, regardless
of how much you say you are going to enforce the law, will
enforce the kind of body language you have as Attorney General,
your vigor in moving, the directions you give to your staff,
and so on.
Mr. Woodson. I agree.
Senator Feinstein. Now, I know you are a strong supporter
of Senator Ashcroft, and I respect that. What would you say to
somebody like me that really sincerely wants to have an
Attorney General who is pro-civil rights?
Mr. Woodson. What I would say to you, Senator, is that you
need to listen to the full range of opinion in black America,
not just to the, quote, ``civil rights leaders.'' You need to
listen to--I am a veteran of the civil rights movement. We had
150 black and hispanic low-income people travel 2 days on a bus
to come here to support this nominee, and so therefore, you
have to ask yourself why would people go to such inconvenience
to support a man if they did not feel that he was strong on
civil rights. Civil rights is an emotional issue with me. I am
a strong civil rights advocate, and I would not be sitting here
if I thought for one moment that Senator Ashcroft was really
weak on civil rights. I can tell you passionately I know this
man. He has worked with us. He is strong on civil rights. He is
a just man. So that's what I would say to you. Listen to the
broad range of opinion in black America, not just those who
are--express opinions on the left of center.
Senator Feinstein. Thank you. I know my time has expired,
Mr. Chairman, but Mrs. James and somebody at this end wanted to
respond as well. Would you allow them to?
Chairman Leahy. Yes. We have been trying to allow that. We
have both those for Senator Ashcroft and those against him
here, and I have been trying to make sure that both sides could
get heard. So, Ms. James, you go ahead, and then Mr. Henderson,
you go ahead.
Ms. James. Thank you, and I will be brief.
Senator Feinstein, thank you for that question. I agree
with Bob Woodson in that I could not sit here in this chair and
support Senator Ashcroft if I did not believe in his heart of
hears that he would enforce vigorously the civil rights laws of
this Nation. I paid too dear a price. I was one of those
students that walked past crowds of angry white parents to
integrate the schools in the south. I was one of those students
that had to take the abuse, that had to be bused into the white
areas. I understand in a very real way what this means.
There are too many of us who are sitting at this table, who
have been involved in the civil rights movement all our lives,
and who care deeply about these issues. If I did not think that
Senator Ashcroft could forcefully and vigorously enforce the
laws of this land where civil rights are concerned, I wouldn't
be at this table.
Senator Feinstein. Why do you feel that when he opposed
desegregation in St. Louis and then statewide?
Ms. James. Because I am able to make the distinctions
between the various roles that Senator Ashcroft has played in
his life, as an Attorney General as a Governor, as a Senator,
and the advocacy roles that he has had to play. I also
understand some of the philosophical differences. I also
understand, as Bob Woodson has said, that the opinions about
these subjects are varied even in the African-American
community. I can tell you this, that because you disagree with
one particular plan, does not mean therefore that you are not
in favor of equal access to education in America, and I believe
that he is, and I believe that he will forcefully, forcefully,
defend the civil rights of students in this country, of women
in this country, and I wouldn't be at the table if I didn't
believe that.
Senator Feinstein. Thank you.
Chairman Leahy. And, Mr. Henderson, you might go ahead.
Mr. Henderson. Senator Feinstein, I'll be very, very brief.
First, let me say at the outset that the term ``civil rights''
encompasses all persons here in America, in the United States.
It is not the exclusive province of African-Americans, even
though as an African-American I recognize the importance of
this issue for my constituency, but it affects every
constituency and person in the United States.
We are an increasingly diverse nation, and the next
Attorney General of the United States has to have a broad
appreciation of the importance and responsibility of respecting
the rights of all Americans.
Now, having said that, one would expect an Attorney General
to have a commitment to a vigorous enforcement of the laws and
constitutional principles that govern civil rights. The
Attorney General has a responsibility for supervising
litigation to achieve the constitutional promise of
integration. The Constitution has promised equal opportunity,
not just desegregation, that is, the absence of formal
strictured segregation. And yet, as you have heard, John
Ashcroft posed a desegregation plan of voluntary desegregation,
and did so without offering constructive alternatives that
might have been used to achieve that objective, and did so in a
manner that was inflammatory, that preyed, in terms of the
rhetoric, on fears of many in the company to the worst effect.
The Attorney General has to responsibility to enforce the
Voting Rights Act of 1965. And yet, as Governor, John Ashcroft
vetoed legislation that would have enhanced voter opportunities
in his state.
John Ashcroft has a responsibility--or the Attorney General
has a responsibility to enforce laws related to persons with
disabilities, and yet his opposition was strong opposition to
statutes that would respect the rights of persons with
disabilities, children in schools related to that has been a
source of real concern.
He has a responsibility to respect immigrants, and yet he
would offer legislation that would undermine the constitutional
rights of naturalized citizens.
So I'm saying to you that, you know, an appreciation for
civil rights has to be broad, and there has to be a
demonstration that the Attorney General has a record that one
could rely on to enforce these statutes.
And my last point is this. I think the most important
function that the next Attorney General will play is in the
selection of the Solicitor General and in establishing the
structure to review and promulgate nominees for the Federal
courts.
Senator Feinstein. Could I stop you just for a second?
Mr. Henderson. Please.
Senator Feinstein. You mentioned legislation having to do
with immigrants. I just asked my staff what legislation was
that. Could you be more specific?
Mr. Henderson. Yes, ma'am. The issue of Immigration and
Naturalization Service is one of real concern. Now, there were
many Senators who, as you recall, in debate on welfare reform,
proposed limiting welfare reform even to legal immigrants,
which we opposed and think needed to be changed, and I'm glad
that Congress is making some structures.
Senator Feinstein. I did as well, yes.
Mr. Henderson. I know you did. I know you did.
There is also a question, however, of even the rights of
persons who are naturalized citizens, and the Senator has taken
positions which have suggested that benefits, Federal benefits
going to naturalized citizens should be questioned. And we'll
dig out those references and provide them here for the
Committee for your review.
Senator Feinstein. Thank you.
Mr. Henderson. And the question is this: Is a Senator
proposing those initiatives? We may disagree, but that, as one
of 100, does not then give you the right to impose it
unilaterally. Obviously, it has to be enacted into law.
As the Attorney General, in the exercise of your discretion
in determining which cases to bring, which cases not to bring,
we ought to put emphasis in your own enforcement strategy. It
is those personal views that can affect how the next Attorney
General will use discretion, and all we are saying is at least
have a record of an individual, conservative thought that
individual may be, who has a demonstrated commitment to
enforcing constitutional guarantees for all persons in the
United States, and if you do a fair and broad review, we
honestly don't believe that John Ashcroft measures up to that
standard, and that, I think, is the most important standard of
all.
Senator Feinstein. My time is up. Thank you.
Chairman Leahy. I understand everybody on the Republican
side has asked questions. Senator Durbin, you have not.
Senator Durbin. Thank you very much, Mr. Chairman.
I have listened to this carefully because I respect
everyone on the panel for coming here and addressing this
difficult issue of civil rights and whether John Ashcroft would
fairly and impartially administer the civil rights laws of
America, and we are trying to accumulate evidence of his life
and public career to reach that conclusion. He has said he
will. We expect that of every nominee, but you look into their
background to determine whether or not that is something that
can be believed.
I have tried to measure his life in this area from a couple
of perspectives; first, missed opportunities. When has he had
an opportunity as a public official to expand civil rights?
When has he seized that opportunity? When has he ignored it?
Secondly, I think that over time, we seem to forget that
the civil rights movement wsan't all that popular. There was a
time when Martin Luther King's visit to Chicago was not a
popular event, nor was it popular in many of the other cities
that he visited.
Yes, we have a great breakfast. The Mayor of Chicago in his
honor every year has a wonderful breakfast and brings in
thousands of people who, I think, rightly praise him, but in
his day, he was not popular, and the question in my mind, when
in John Ashcroft's public career did he do something that was
unpopular, but right in the area of civil rights? That is
another yardstick that I would apply here in this case.
When I look at the opportunity for voluntary desegregation
of schools, as unpopular as that was even as it was voluntary,
I see resistance and efforts by John Ashcroft to stop that.
The same thing with voter registration. It would have been
unpopular for a Republican Governor to sign a bill to expand an
opportunity for voter registration in a Democratic city like
St. Louis. Most of us agree it would have been the right thing
to do. We should expand voter registration in every community,
black, white, brown, you name it.
The same thing with the Bob Jones University visit. The
fact that it is a religious university is secondary, maybe
irrelevant. The fact that the leaders of that university had
made a record of policies and philosophies against interracial
dating, threatening if a homosexual alumnus came on campus that
they would have him arrested for trespass, statements about my
Catholic religion, about to her religions, those are the sorts
of things. I think it was a missed opportunity by John Ashcroft
to visit that university and not note that as a public
official.
Ronnie White, I won't go through that. Again, a missed
opportunity for a man with an extraordinary background to say
to African Americans not only in Missouri, but across America,
yes, you can do the right thing, you can work hard, you can be
a success, you can be a Federal district court judge. The
opportunity was missed for reasons that we still don't know.
Mr. Hormel as our Ambassador to Luxembourg, an opportunity
for a man who was openly gay to serve this Nation in a post
that frankly he could have served well in. The country was
welcoming him, and it was resisted by John Ashcroft.
So, when I look to this issue of civil rights and whether
or not when it comes to a hard decision under President Bush in
the area of civil rights, whether John Ashcroft as Attorney
General will stand up and say, ``Mr. President, it may not be
popular, but it is right,'' that is what I am looking for.
I would just invite comment from members of the panel about
that. Mr. Henderson, if you would like to comment?
Mr. Henderson. Well, thank you, Senator.
I can't agree with you more that evidence of tough
decisions that advance civil rights would certainly be one way
of measuring the suitability of any candidate for this job.
You mentioned touch choices, and I know that when I
responded to Senator Feinstein's question, I laid out various
constituencies that are affected by civil rights matters.
You talked about tough choices today. One of the groups
that experiences some of the most vitriolic response are gay
and lesbian Americans. We see it here in the U.S. Senate in the
struggle to pass a hate crimes statute that covers persons with
disabilities, covers women, covers gays and lesbians.
We have a bipartisan bill. Not everybody supports it,
obviously, but there are more people who do, and yet it is a
tough sell in many ways because it includes gay and lesbian
Americans even though the numbers of people who are affected by
hate crimes, they are second only to African Americans in terms
of sheer numbers. Immigrants are also growing.
But the Hormel issue which you touched on, I do think is
worth responding to because it raises an important question.
The Supreme Court did extend constitutional rights, civil
rights to gay and lesbian Americans in Evans v. Romer, and one
does expect the Attorney General to be responsive to all of
those constituents.
The Hormel matter was troubling in terms of the outcome of
this nominee, a well-respected businessman who is a gay
American, but the point is, when he was reviewed in the
Committee to determine his suitability for the position, as I
understand it, and I stand to be corrected, Senator Ashcroft
did not attend those hearings.
He did come out of the hearing, meaning Jim Hormel, on a
vote of 16 to 2. He then requested an opportunity to meet with
Senator Ashcroft by sending him a letter asking for an
opportunity to sit down to exchange his views, and in the
letter, he reminded Senator Ashcroft that he himself, meaning
Jim Hormel, had been the dead of Admissions at the University
of Chicago and had admitted Senator Ashcroft to that law
school, I believe in 1964. He never got a response to the
letter. That is OK, but the question remains that when he was
voted against and when Senator Ashcroft spoke against him, he
said it was the totality of the record that was the basis for
his decision, and I want to know what was the totality of the
record.
I mean, the question is if you have a hard time affecting
the constitutional rights of any group of Americans, whether
they be African Americans or women or Hispanic Americans and,
in this instance, gay Americans, then the question is can you,
in fact, enforce those laws that apply to every American
citizen and to respect those laws in a way that we would want
the Attorney General to do.
Senator Durbin. Mr. Chairman, I would be happy to let the
panel respond, at least we have in the past.
Chairman Leahy. Mr. Woodson, did you want to comment?
Mr. Woodson. Yes, just briefly.
First of all, Senator, I am not sure that just because
something is unpopular, it means that is correct, and I think
that the kind of leadership that you are talking about, taking
unpopular position, Dr. King when he took his position in
support of direct action was opposed by the mainstream civil
rights organization.
Senator Durbin. Did you think, Mr. Woodson, when you were
involved in demonstrations and arrested that you were doing
something that was popular?
Mr. Woodson. No, not at all, but the point is what we look
for in a leader like Dr. King is moral consistency which goes
to the person's character.
Dr. King opposed the violence of the Klu Klux Klan, but he
opposed with equal vigor retaliatory violence of the Black
Panther Party which made him unpopular among whites and blacks.
That is true leadership, but it also goes to his character, and
where he is able to be morally consistent. I think that kind of
moral high ground has been forfeited by the current civil
rights leadership because they looked the other way when blacks
engage in immoral or unethical behavior and they are defended
as being targeted by whites as opposed to holding them to the
same standard.
So I think that we would look for in Senator Ashcroft the
kind of qualities that we saw in Elliot Richardson, who came
into the President's office and said, ``I will resign.'' So I
think that is character and moral consistency that I find
evident in Senator Ashcroft that would cause him to act in a
situation courageously because the character issue is what I am
impressed with.
Chairman Leahy. Following the procedure that we have had,
we have made sure that both those for and against Senator
Ashcroft had a chance to answer the question. As we will keep
it brief, that would be you, Pastor Rice, and then you, Mr.
Taylor.
Rev. Rice. I certainly will, and let me just respond to one
statement about Dr. Martin Luther King and his popularity among
the African-American community.
I want to say that Dr. King overwhelmingly, just for the
record, is extremely, still to this day, very popular among the
African-American community.
Now, your question was missed opportunities, and I think
you, Senator, have articulated those missed opportunities, and
I would only like to mention four. One, his opposition to
voluntarily desegregate the schools of the city of St. Louis,
and I think Mr. Taylor can comment on that. Two, his
unwillingness to apologize to the African-American community in
Missouri in general for his insensitivity. Three, his visit to
the Bob Jones University was, indeed, an insult to many African
Americans especially in Missouri, and to this date, he has not
to my knowledge openly, unlike President-elect Bush says,
``Yes, I didn't know. I am sorry,'' he repudiated going. To
this day, he has refused, to my knowledge, to even apologize
for that or to send back the honorary doctor degree.
Then, to participate in interviews with a magazine that is
so extreme on racism like the Southern Partisan magazine and
yet not offer some type of apology for that to me is missed
opportunities, and I think that had that happened, it would
certainly help us along this way.
It is very interesting to me as I close that this
nomination receives so much back-and-forth, so much uneasiness.
Again, it would be an area that I think that we could bridge
the divide if we would look another way.
Mr. Taylor. A couple of quick points, but I cannot refrain
from saying that I knew Elliot Richardson for many years. We
were colleagues for 17 years on the Citizens Commission on
Civil Rights, and John Ashcroft is no Elliot Richardson.
But, Senator, to get to your point, I think that is a very
important point that you make. We would have settled in St.
Louis not for leadership from Mr. Ashcroft, but just for
silence. We would have settled for something less. We would
have settled for compliance for court orders. We would have
settled for not fanning the flames of racial divisions by
remarks that he made, but I also think it is important in the
year 2001. We see so much lip service being paid to civil
rights and Dr. King's memory, but does it get backed up by real
leadership? Does it get backed up by efforts to deal with the
situation that is facing so many people of color and people of
color who are poor who still lack in this time the access to
real opportunity? It is going to take something more than just
silence on this. It is going to take real leadership, and the
record does not support any notion that the nominee will
provide that leadership.
Senator Durbin. Thank you.
Chairman Leahy. Senator Hatch?
Senator Hatch. Just let me make a couple of final remarks.
I would like to put into the record at this point, because
I think it is very pertinent, an article about all this from
the St. Louis Post Dispatch, a paper not known for its
friendliness to Senator Ashcroft.
After quoting Mr. Taylor on Senator Ashcroft's record in
this litigation, the story goes on to note the following,
``Others paint a different portrait of Ashcroft's involvement
in the case. Bruce LaPierre served as a special master in the
case. In effect, LaPierre was a go-between for the two sides.
LaPierre declined to comment Friday. However, a footnote to an
article he wrote in 1987 for the Wisconsin Law Review said
that, `The State of Missouri participated in these negotiations
on a limited, but very helpful basis.' Judge Innalokus, the
attorney for the Papinsville and Vandiver school districts in
1983 said Ashcroft's representative in the case `played a
constructive role and helped bring about a settlement.'
Ashcroft's representative was Larry Marshall, a former State
Senator. With the two sides deadlocked over the payment of
attorney's fees, Marshall suggested that the State pick up the
tab. That was one of the final hurdles to the landmark
agreement in 1983, much of which remains intact.''
I just wanted the record to reflect that many people do not
share Mr. Taylor's view of Senator Ashcroft's role in this
litigation, but we have heard both sides, and, look, it is time
to bring this to a closure.
We have had people on both sides of these issues, and I
think there is enough here for any person of a reasonable mind
who really wants to be fair to basically give the benefit of
the doubt to Senator Ashcroft, and, frankly, those of us who
know him go way behind that. But I am saying if you have any
doubts, he ought to be given the benefit of the doubt because
of what really is a remarkable record and a very good personal
history.
So there are differences here, and we understand that, and
I just want to thank each of you for coming. Each of you has
added to this hearing. Each of you has contributed immeasurable
help to us from your perspective and point of view, but I think
the importance of this panel shows that there are two different
or maybe more than just one liberal or one conservative point
of view. I think that is important to know.
Thank you.
Chairman Leahy. To emphasize the differences on that, just
in fairness, Senator Hatch just put in an article from that
newspaper.
We will also add to the record the editorial for that
newspaper calling for the defeat of Senator Ashcroft for
Attorney General.
I will also put in a number of endorsements of Senator
Ashcroft, a number of articles opposing Senator Ashcroft. This
includes a list given to me by my friend from Utah with
supporting documents. All of this material will be placed in
the record at the appropriate time, including a number of
endorsements of Senator Ashcroft.
Senator Hatch. If the Senator would yield on that?
Chairman Leahy. Of course.
Senator Hatch. I would like to put the endorsements, at
least some of them into the record, endorsements of Senator
Ashcroft, including the endorsements of a wide variety of
Democrat and Republican Attorneys General, former and sitting
Attorneys General, law enforcement agencies, minority groups,
law professors, et cetera.
But in addition, I would like to put into the record a
letter from the National Baptist Convention, USA, Inc., Civil
Rights and Equal Justice Commission. This was sent to Senator
Leahy and myself on the Committee on the Judiciary, and I will
just read part of it. ``The Commission on Civil Rights and
Equal Justice of the National Baptist Convention submits this
letter in support of the President-elect Bush's nomination of
Senator Ashcroft to be Attorney General of the United States.
The National Baptist Convention has 8.4 million members and
33,000 churches, and we are America's third-largest religious
denomination. With our first member church founded in the
1700's, the National Baptist Convention is the world's oldest
and largest civil rights organization.''
Let me just read a little bit more here. ``Our commission
takes the position of strongly held religious faith should not
be a disqualifying factor for Attorney General or elected
office. In fact, the commission believes that Senator
Ashcroft's Christian faith and morality support his
confirmation. As Governor of Missouri, Senator Ashcroft
proclaimed Martin Luther King's birthday a State holiday,'' et
cetera. It said, ``None of Senator Ashcroft's appointees has
raised a specter of racism. Senator Ashcroft received 50
percent more African-American votes in Missouri last fall than
President-elect Bush. Senator Ashcroft's wife taught for many
years at Howard University, an institution of higher education
venerated by African Americans. Our churches serve working-
class, urban, and rural neighborhoods that too long have been
victimized by drug lords and other violent criminals,'' the
point you have been making, Mr. Woodson. ``We have opposed
judges and politicians who seek to put these criminals back on
the street where they can claim more innocent victims. Senator
Ashcroft has shared this concern for sheltering our communities
from violent crime,'' and then they state some of their hopes,
but I will put the whole letter in the record. I think it is
pretty important to understand it is the third-largest
religious congregation in the country and a leading civil
rights organization. So there are two sides that people can
raise. We don't all agree on some of the things that have
happened, but I respect your respective points of view. I know
all of you, and I am just very grateful you all came.
Chairman Leahy. We can all read in letters for and against,
and I am going to resist the temptation--
Senator Hatch. I will resist, too. I have some more. I will
resist it.
Chairman Leahy.--To do so, the same as Senator Hatch.
Eventually, the record will be replete with a number.
I would also note that Senators will have the opportunity
to place into the record other materials, as Senators will have
the opportunity following the normal practice of this Committee
to submit follow-up, written questions to the nominee and
panels, and I would ask everybody to do that as quickly as
possible.
I thank the panel.
Senator Hatch. Could we have the questions in by the end of
the day, though?
Chairman Leahy. We can talk about that at the next break.
Senator Feinstein. Mr. Chairman, may I give you my written
questions?
Chairman Leahy. I submit written questions from the
distinguished senior Senator from California.
Senator Specter. Mr. Chairman, a brief addendum. When I was
questioning Mr. Taylor yesterday with respect to the sanction
or contempt issue, I mentioned how sometimes prosecuting
attorneys are held in contempt, and I made a very brief
reference which I would expand upon.
I handled a case called Arnold Marks in 1969 as D.A. of
Philadelphia, a major drug pusher who got a slap on the wrist,
and I mentioned the fact that I was held in contempt, but I
also wanted to mention that it was withdrawn.
[Laughter.]
Senator Hatch. I am glad to have that record clarified.
Senator Specter. The contempt citation was withdrawn under
some extraordinary circumstances which I detail in my recent
book, A Passion for Truth.
Mr. Taylor. Senator, may I just say that I appreciate that
clarification, but I would say that somebody held in contempt
in the heat of a tough trial, I find that more excusable than a
pattern of actions of defiance of the courts that took place
over a long period of time. That, I think, is the distinction
that I would make in the case, and the court records speak for
itself in that regard.
Chairman Leahy. I would note that the distinguished Senator
from Pennsylvania was not being held in contempt. He had been
removed from that. I first met him when he was District
Attorney of Philadelphia, and I was one of the officers of the
National D.A.'s Association.
We will take a 5-minute break.
Senator Schumer. Mr. Chairman?
Chairman Leahy. Yes.
Senator Schumer. I don't have a question, but for some of
our staffs, it would be hard to get in questions by the end of
today. Could we do it by the end of business Monday for all the
panels?
Senator Hatch. Oh, no.
Chairman Leahy. We are going to talk about that during the
break.
Mr. Taylor. Senator, one last thing. Senator Kennedy asked
last night about evidence of success of the program that Mr.
Ashcroft called an ``outrage against human decency,'' and I
would like to submit for the record Dr. Danforth's report for
the leading St. Louis business organizations and other
material.
Chairman Leahy. It will be accepted.
We will stand in recess for 5 minutes.
[Recess from 10:23 a.m. to 10:40 a.m.]
Chairman Leahy. I had stated earlier when Senator Hatch was
reading from the St. Louis paper, I have two editorials to put
in the record from the St. Louis Dispatch, one from January
14th of this year, one from January 18th. I would read from the
January 18th one in which they say, ``The most disturbing part
of Mr. Ashcroft's testimony was his misrepresentation of his
opposition to the voluntary school desegregation program in St.
Louis. He said the courts did not find the State guilty of
wrongdoing, that the State had not been a part of the case. In
fact, the Federal courts found the State was the primary
constitutional wrongdoer, and the State was a party to the
case, and in 1981, the Federal court criticized the State for
deliberately deciding to defy the authority of the court.''
They conclude by saying--I won't read it all, but they
conclude by saying, ``Mr. Ashcroft made some progress toward
making himself more palatable as Attorney General, but the
weight of his record and the tension between his beliefs and
the laws of the land are hard to ignore.''
Both of those will be made part of the record.
Senator Feinstein. Mr. Chairman?
Chairman Leahy. Yes?
Senator Feinstein. May I submit for the record the
testimony of the National Hispanic Leadership Agenda, which is
a non-partisan coalition of major Hispanic organizations?
Chairman Leahy. That will also be made part of the record.
Does anybody else have any submissions for the record?
[No response.]
Chairman Leahy. Professor Dunn, what order do you gentlemen
have--Mr. Barnes is a former member, and following the normal
practice, Michael Barnes, you may begin, and then Professor
Dunn, and then we will go to questions.
STATEMENT OF MICHAEL BARNES, PRESIDENT, HANDGUN CONTROL,
WASHINGTON, D.C.
Mr. Barnes. Thank you very much, Mr. Chairman. My name is
Michael Barnes. I am the president of Handgun Control.
As the Committee knows, Handgun Control is the Nation's
largest citizen organization dedicated to preventing gun
violence and making our neighborhoods safer.
Recently, some media reports have referred to Handgun
Control as a ``liberal'' or a partisan group. But our members,
like the victims of gun violence, are not limited by any
ideological or party label, and poll after poll shows that the
American people support our agenda by huge margins.
We are a non-partisan organization. Our staff includes
Republicans and Democrats. Our Board of Directors includes
prominent Republicans, prominent Democrats, and, in fact, as
the Committee knows, the leaders and heroes of our cause and
our organization are Jim and Sarah Brady, lifelong Republicans.
Most Americans recall that Jim Brady served as President Ronald
Reagan's press secretary, and many remember that terrible day
20 years ago in March when John Hinckley shot President Reagan
and Jim Brady and two courageous law enforcement officers.
Mr. Chairman, I would like to submit a brief statement from
Jim Brady for the record. I wish I had time to read it this
morning, but as you can imagine, Jim didn't particularly
appreciate Mr. Ashcroft calling him ``the leading enemy of
responsible gun owners.'' Jim Brady is not an enemy of
responsible gun owners. He himself has been a responsible gun
owner and a hunter. He and Sarah are enemies of irresponsible
gun owners, and they are the ones who should be concerned about
the views of Jim and Sarah Brady.
Through the work of Jim and Sarah, through the work of this
Committee and the Congress, our Nation has made enormous
strides forward in the battle against gun violence. The Brady
law, the Federal assault weapons ban, and other common-sense
laws have helped to reduce crime and gun violence in America.
We must build on this success, and we can't afford to turn
back to weaker gun laws. As the Wall Street Journal reported
just recently, more than 96,000 Americans are still killed and
wounded each year by gun violence. The Attorney General's first
responsibility, of course, is to enforce and defend Federal
law. Regrettably, a careful review of Mr. Ashcroft's record
shows a deeply felt hostility to Federal action against gun
violence. Put simply, Mr. Ashcroft is unalterably opposed to
the very gun laws he will be called upon to enforce and defend.
For this reason, Handgun Control must reluctantly oppose his
nomination. We have never before opposed a nominee for Federal
office.
With this committee's permission, I will submit a more
comprehensive analysis for the record. For now, I will briefly
highlight just a couple of key concerns.
Let me make it clear that we do not oppose Mr. Ashcroft
simply because he disagrees with us on gun policy. We oppose
him because his opposition to strong Federal gun laws is
unyielding and ideological. It is rooted in a troubling
constitutional philosophy that promises to affect every
decision he makes with respect to the enforcement of gun laws.
Mr. Ashcroft's voting record on guns as a U.S. Senator is
very easy to summarize. Without exception, he supported the
position of the pro-gun lobby and opposed measures supported by
the vast majority of the American people.
In testimony before this committee, Mr. Ashcroft has tried
to rehabilitate his record on gun issues. For example, he said
that he supported mandatory background checks for gun show
sales. But as members of the Committee may recall, that is a
rather misleading statement.
As a U.S. Senator, Mr. Ashcroft had an opportunity to vote
for strong gun show legislation, but he chose to support weak
measures riddled with loopholes. First, he voted for an
amendment that would have made background checks voluntary.
That is right. He expected criminals and other prohibited
purchasers to volunteer for background checks at gun shows.
Then he voted for another weak measure that would have limited
law enforcement to only 24 hours to conduct criminal background
checks on gun show sales. This would have actually weakened
current law, which provides law enforcement with 3 business
days to carefully review gun sales by licensed dealers.
The difference between 24 hours and 3 business days is
critical, according to law enforcement. Even though 95 percent
of all background checks are completed in less than 2 hours,
for the remaining 5 percent, law enforcement must check State
and local records, some of which are not computerized and
require a manual review.
The FBI looked at what would happen if it had just 24 hours
to complete background checks. The Bureau found that in just 6
months, 17,000 criminals and other prohibited purchasers would
have gotten guns--17,000 in 6 months.
On issue after issue, Mr. Ashcroft has voted with the gun
lobby. He was one of only 20 Senators to vote against a
proposal to require the sale of child safety locks with
handguns to protect our children in America. And in a 1998
letter to our Chair, Sarah Brady, Mr. Ashcroft called the
Federal assault weapons ban ``wrong-headed.'' In that same
letter, he summarized his views very clearly. He wrote to
Sarah, ``Gun control laws will not prevent criminals from
acquiring guns.''
Well, don't tell that to the people of every other
civilized country in the world that have responsible gun
control laws and do keep criminals from acquiring guns.
Not only did Mr. Ashcroft consistently support the gun
lobby in the Congress, he has volunteered to champion the gun
lobby's agenda in his home State on an issue far removed from
his senatorial duties. In 1999, he was featured in radio ads
supporting an ill-conceived and extreme ballot referendum to
legalize the carrying of concealed weapons in Missouri.
This referendum was so poorly written and riddled with
loopholes that it would have allowed convicted child molesters
and stalkers to carry semi-automatic pistols into bars, sports
stadiums, casinos, and day-care centers. Numerous law
enforcement organizations in Missouri stepped up to oppose it,
but Mr. Ashcroft ignored their advice and did the gun lobby's
bidding. Not surprisingly, the voters of Missouri rejected this
outrageous proposal.
Even more disturbing than Mr. Ashcroft's unwavering record
opposing gun safety are his views about the constitutional
significance of guns. He has argued that the Second Amendment
supports ``good government'' because an armed citizen--and this
is a quote from Mr. Ashcroft--because an armed citizenry ``is
less likely to fall victim to a tyrannical central
government...''
According to this extreme theory, popular with paramilitary
militia groups--and they use it in the courts, or they try to;
no court has ever accepted it--the Amendment's purpose is to
give individuals the means to take up arms against government
officials if they become, in the gun owner's view,
``tyrannical'' or ``despotic.''
For the chief law enforcement officer of the United States
to support this very extreme theory obviously raises very
disturbing questions.
In conclusion, let me just say, Mr. Chairman, throughout
his years in public service, Mr. Ashcroft has been strongly
opposed to even the most limited and common-sense gun laws,
laws that are supported by the vast majority of the American
people. This opposition apparently arises out of his extremist
interpretation of the United States Constitution. This
Committee and the Senate should not expect Mr. Ashcroft to
check these principles, which he apparently believes in very
strongly, at the door to the Attorney General's office. Quite
simply, his record establishes that he cannot be counted on to
vigorously enforce and defend our Nation's gun laws that have
helped to reduce gun violence, laws against which he fought
here in the U.S. Senate.
This Committee and the Senate, we submit respectfully,
should reject his nomination to be Attorney General.
Thank you very much, Mr. Chairman.
[The prepared statement and an attachment of Mr. Barnes
follow:]
Statement of Michael D. Barnes, President of Handgun Control and the
Center to Prevent Handgun Violence
Chairman Leahy, Ranking Member Hatch, Members of the Committee,
thank you for giving me this opportunity to testify on the nomination
of John Ashcroft to be Attorney General.
As the Committee knows, Handgun Control is the nation's largest
organization dedicated to preventing gun violence and making our
neighborhoods safer.
Recently, som media reports have referred to Handgun Control as a
``liberal'' group. But your members, like the victims of gunviolence,
are not limited by any ideological lable, and poll after poll shows
that the American people support our agenda by huge majorities.
We are a bipartisan organization. Our staff includes Democrats and
Republicans. Our Board of Directors includes prominent Democrats and
Republicans. In fact, the leaders of Handgun Control, Jim and Sarah
Brady, are lifelong Republicans. Most Americans know that Jim Brady
served as Ronald Reagan's Press Secretary, and they remember that
terrible day, twenty years ago in March, when John Hinckley shot
President Reagan, Jim Brady and two law enforcement officer.
Jim Brady was also invited to tesify at this hearing and I would
like to read a brief statement from him.
In addition to the Brady Law, we passed the federal assault weapons
ban--Senator Feinstein and Senator Schumer were key leaders on this
issue--in response to law enforcement concerns that these weapons were
being used by drug gangs and other dangerous criminals.
And these stronger laws have helped reduce crime and gun violence.
The Department of Justice reports that the overall crime rate is the
lowest in 25 years, the murder rate is down more than 25 percent, and
gun violence has declined by more than 35 percent.
We must build on this success, and we cannot afford to turn back to
weaker gun laws. As the Wall Street Journal recently reported, more
than 96,000 Americans are still killed and wounded each year by gun
violence. The Attorney General's first responsibility is to enforce,
and defend, federal law. Regrettably, a careful review of John
Ashcroft's rhetoric and record shows a deeply felt hostility to strong
federal action against gun violence. Put simply, Mr. Ashcroft is
unalterably opposed to the very gun laws he will be called upon to
enforce and defend. For this reason, Handgun Control must oppose his
nomination.
With the Committee's permission, I will submit a more comprehensive
analysis for the record. For now, I will briefly highlight our key
concerns.
Opposition to Strong Gun Laws
Let me make it clear that we do not oppose John Ashcroft simply
because he disagrees with us on gun policy. We oppose him because his
opposition to strong federal gun laws is unyielding and ideological. It
is rooted in a troubling constitutional philosophy that promises to
affect every decision he makes on the enforcement of gun laws.
Mr. Ashcroft's voting record on guns as a United States Senator is
easy to summarize: without exception, he supported the position of the
National Rifle Association and opposed measures supported by the vast
majority of Americans.
In testimony before this Committee, Mr. Ashcroft has tried to
rehabilitate his record on gun issues. For example, he said that he
supported mandatory background checks for gun show sales. But that is
misleading.
As a United States Senator, Mr. Ashcroft had an opportunity to vote
for strong gun show legislation but he chose to support weak measures
riddled with loopholes. First, he voted for an amendment that would
have made background checks voluntary. That's right, he expected
criminals and other prohibited purchasers to volunteer for background
checks at gun shows.
After public opposition to that approach, Senator Ashcroft voted
for another weak measure that would have limited law enforcement to
only 24 hours to conduct criminal background checks on gun show sales.
This would have actually weakened current law which provides law
enforcement with three business days to carefully review gun sales by
licensed dealers.
The difference between 24 hours and three business days is critical
for law enforcement. Even though 95 percent of all background checks
are completed in less than two hours, for the remaining five percent,
law enforcement must check state and local records, some of which may
not be computerized and require a manual review. The FBI looked at what
would happen if it had just 24 hours to complete background checks. The
Bureau found that, in just six months, 17,000 criminals and prohibited
purchasers would have gotten guns.
And because he valued easy access to guns over thorough background
checks, Senator Ashcroft actually voted against the amendment that
would have required background checks at gun shows and maintained law
enforcement's ability to complete them.
On issue after issue, Mr. Ashcroft has toed the gun lobby line. He
was one of only 20 Senators to vote against a proposal to require the
sale of child safety locks with handguns.
In a 1998 letter to Sarah Brady, John Ashcroft called the federal
assault weapons ban ``wrong-headed.'' And in that same letter, he
summarized his views very clearly: ``Gun-control laws will not prevent
criminals from acquiring guns.''
Support for a Radical Gun Lobby Referendum in Missouri
Not only did Mr. Ashcroft consistently support the gun lobby in the
Congress, he has volunteered to champion the NRA's agenda in his home
state on an issue far removed from his Senatorial duties. In 1999, he
was featured in radio ads supporting an ill-conceived and extreme
ballot referendum to legalize the carrying of concealed weapons in
Missouri.
This referendum was so poorly written and riddled with loopholes
that it would have allowed convicted child molesters and stalkers to
carry semi-automatic pistols into bars, sports stadiums, casinos and
day care centers. Numerous law enforcement organizations opposed it,
but Mr. Ashcroft ignored their advice and did the NRA's bidding. Not
surprisingly, the voters of Missouri rejected this outrageous proposal.
Extreme Views on the Second Amendment
Even more disturbing than Mr. Ashcroft's unwavering record opposing
gun safety laws are his views about the constitutional significance of
guns. In 1998, he convened a Senate Subcommittee hearing on the meaning
of the Second Amendment. At that hearing, he argued that the Amendment
supports ``good government'' because an armed citizenry ``is less
likely to fall victim to a tyrannical central government. . .''
According to this extreme theory, popular with paramilitary militia
groups, the Amendment's purpose is to give individuals the means to
take up arms against government officials if they become--in the gun
owner's view--``tyrannical'' or ``despotic''.
For the chief law enforcement officer of the nation to support this
theory raises disturbing questions. If the Second Amendment's purpose
is to keep government officials in check through the threat of armed
revolt, then why does it not confer a constitutional right to own
firepower-machine guns, hand grenades, surface-to-aie missiles--to
match that of the government? And this is not an academic question.
Leaders of paramilitary groups have defended against federal gun-
related charges on the ground that their training with military weapons
is protected under the Second Amendment. Would Attorney General
Ashcroft aggressively prosecute such groups, or would he be constrained
by his constitutional convictions?
Similarly, would an Attorney General with such an extreme view of
the 2d Amendment vigorously defend the nation's gun laws in court? Let
me give you a specific example. The gun lobby challenged the federal
assault weapons ban in court. A federal judge in Michigan recently
dismissed this lawsuit and the Department of Justice is now defending
that decision on appeal. In light of his criticism of the assault
weapons ban and his 2d Amendment interpretation that guns promote good
government, could a Department of Justice headed by John Ashcroft be
counted on to defend this critical anti-crime law?
Conclusion
Throughout his years in public service, John Ashcroft has been
strongly opposed to even the most limited and common sense gun laws,
laws that are supported by the vast majority of American people. This
opposition arises out of his extremist interpretation of the 2d
Amendment. This Committee and the Senate cannot expect John Ashcroft to
check these principles at the door to the Attorney General's office.
Quite simply, his record establishes that he would not vigorously
enforce and defend the nation's gun laws that have helped reduce gun
violence. This Committee, and the Senate, should reject his nomination
to be Attorney General.
Statement of James Brady
Chairman Leahy, Ranking Member Hatch, and Members of the Judiciary
Committee, I want to thank you for inviting me to testify. I regret
that a family medical problem prevents me from being with you for this
important hearing. I wanted to send this brief statement to the
Committee to address comments Senator Ashcroft made about me.
In a fundraising letter for his Senate campaign, Mr. Ashcroft
called me the ``leading enemy of responsible gun owners.'' I found that
remark reckless and offensive, even for a politician trying to raise
money. We've heard a lot from President-elect Bush about changing the
tone in Washington. It is too bad he's nominated someone who sings a
divisive tune. Most importantly, responsible gun owners know that they
have nothing to fear from me. In fact, I was a responsible gun owner--I
had a shotgun when I was a kid. And I have close friends who are
responsible gun owners and I've worked with many responsible gun
owners. My problem is the irresponsible gun owners--like the criminal
who shot me and put me in a wheelchair.
Ever since that terrible day almost twenty years ago, I have worked
with my wonderful wife Sarah to strengthen our nation's gun laws. And
with the help of this Committee we have made progress. We passed the
Brady Law which requires licensed gun dealers to conduct background
checks. Sarah and I were deeply honored that you gave that law our
name. And we are so proud that the law is working, with more than
600,000 criminals and other prohibited purchasers stopped from buying
guns. Looking back, it's hard to believe there was such strong
opposition to such a common sense idea.
We need to build on this success, and we cannot afford to go back
to weaker gun laws. I am afraid that is what would happen under an
Attorney General like John Ashcroft. With his extreme positions, he has
stayed close to the gun lobby but moved far away from most Americans. I
urge this Committee, and the Senate, to reject his nomination.
Statement of Handgun Control
Handgun Control, the largest citizen organization working for
stronger gun safety laws, submits this statement in opposition to the
nomination of John Ashcroft as Attorney General of the United States.
An Attorney General's first responsibility is to defend, and
enforce, federal law. As Senator Orrin Hatch stated in explaining his
opposition to a Clinton Administration executive appointee some years
ago, ``[t]hose charged with enforcing the Nation's laws must
demonstrate a proper understanding of that law, and a determination to
uphold its letter and its spirit.'' \1\ When it comes to the nation's
gun safety laws, John Ashcroft will be the fox standing guard over the
chicken coop. Far from ``a determination to uphold the letter and
spirit'' of the nation's gun laws, an Ashcroft Justice Department poses
a clear and present danger to the protection, and vigorous enforcement,
of those laws. Handgun Control opposes Ashcroft not simply because he
is opposed to sensible laws to reduce gun violence, but because his
opposition springs from a radical pro-gun ideology, including an
extremist view of the Second Amendment to the Constitution. That
ideology inevitably will infect every policy and law enforcement
decision he will make concerning the control of firearms, to the
detriment of public safety.
---------------------------------------------------------------------------
\1\ 143 Cong. Rec. S 11617-05 (daily ed. Nov. 4, 1997) (statement
of Sen. Hatch).
---------------------------------------------------------------------------
Ashcroft and The Gun Lobby
the ashcroft record in congress
John Ashcroft's record on guns demonstrates one incontestable
proposition: he is joined at the hip with the National Rifle
Association and other extreme pro-gun groups. This is evident from both
his rhetoric and his record. During his unsuccessful campaign for re-
election to the Senate, he called former Reagan Press Secretary James
Brady ``the leading enemy of responsible gun owners.'' (See Attachment
A.) In key Senate votes on gun legislation, he was in lock step with
the gun lobby, voting against common-sense gun safety proposals 13 out
of 13 times.
His votes against public safety include:
Voted against closing the gun show loophole in 1999. The
Lautenberg Amendment to S. 254, the Violent and Repeat Juvenile
Offender Accountability and Rehabilitation Act (a.k.a., the
Juvenile Justice Bill) would have closed a loophole in our
federal gun laws by requiring background checks on all sales at
gun shows. Under current federal law, only licensed gun dealers
must conduct background checks on buyers; private individuals
can sell guns at gun shows without conducting the checks. This
loophole enables criminals and juveniles to buy guns without
fear of being detected.
In 1999, voted twice to weaken existing law by removing the
background check requirement on pawnshop redemptions and by
allowing dealers to sell guns at gun shows in any state. The
Craig and Hatch/Craig Amendments to S. 254 would also have
weakened existing law by reducing the amount of time law
enforcement has to complete criminal background checks for
dealer sales at gun shows and by granting special civil lawsuit
immunity to negligent gun sellers at gun shows.
Voted twice against requiring child safety locks to be sold
with all guns sold by licensed dealers, once in 1999 (the Kohl
Amendment to S. 254) and once in 1998 (the Boxer/Kohl Amendment
to the FY 1999 Commerce, State and Justice Appropriations
bill).
Voted against regulating Internet firearm sales (the Schumer
Amendment to 5.254 in 1999).
Voted twice against a ban on the importation of large capacity
ammunition magazines (the Feinstein Amendment to 5.254 in 1999 and the
Feinstein Amendment to the FY 1999 Commerce, State and Justice
Appropriations bill in 1998).
Voted for a measure that would have impaired implementation of
the National Instant Check System in 1998. The Smith Amendment
to the FY 1999 Commerce, State and Justice Appropriations bill
would have prohibited the FBI from keeping records of gun
transfers for a reasonable length of time, thereby inhibiting
the FBI's ability to audit the system to ensure that prohibited
persons are denied guns and qualified persons are cleared for
purchase.
Although Ashcroft portrays himself as a ``tough on crime'' law
enforcer, his ``toughness'' appears to have limits when it comes to
guns. Senator Hatch had sponsored a bill--the Violent and Repeat
Juvenile Offender Act of 1997 (S. 10)--that would have expanded
authority to prosecute illegal gun traffickers. Ashcroft sought to
strip from the bill a provision that would have added federal firearms
violations to the list of offenses that would trigger prosecution under
the federal Racketeer Influenced and Corrupt Organizations (RICO)
statute. Ashcroft sent a handwritten note to Larry Pratt, executive
director of the extremist Gun Owners of America, thanking Pratt for
``bringing to my attention the RICO (2nd amendment) problems
with the juvenile justice bill.'' \2\ He assured Pratt, ``I am working
to see that the RICO provisions are stripped from the bill prior to
floor consideration.'' \3\ GOA had called the bill ``Hatch's Horror.''
\4\ The bill later was amended to weaken the provision.
---------------------------------------------------------------------------
\2\ See http://www.gunowners.org/news/nws9805.htm (last visited
Jan. 2001).
\3\ Id.
\4\ Id.
---------------------------------------------------------------------------
Ashcroft's Support for Hidden Handguns
Not only did Ashcroft unswervingly support the gun lobby in the
Congress, he has reached out to champion the NRA's agenda in his home
state. In 1999, he was featured in radio ads supporting an ill-
conceived, extreme (and, fortunately, unsuccessful) ballot referendum
to legalize the carrying of concealed weapons in Missouri. Proposition
B was so poorly written that it would have allowed virtually anyone to
carry a hidden handgun virtually anywhere. It was so riddled with
loopholes that it would have allowed convicted child molesters and
stalkers to carry semi-automatic pistols into bars, sports stadiums,
casinos, and day care centers. The proposal would have allowed people
to obtain a permit to carry a concealed handgun with minimal training;
applicants would not even be required to hold a gun.
Although Ashcroft's radio ads claimed Proposition B's safeguards
were ``plenty tough,'' \5\ most of Missouri's law enforcement community
strongly disagreed. Proposition B was opposed by the Missouri Police
Chiefs Association, the Missouri Peace Officers Association, the Kansas
City Police Department, the Kansas City Metropolitan Crime Commission,
the Greater St. Louis Police Chiefs Association, and the St. Louis and
Kansas City Chapter of the National Organization of Black Law
Enforcement Executives.
---------------------------------------------------------------------------
\5\ See Scott Charton, ``Concealed guns backer Ashcroft had `grave
concerns' about proposal,'' Associated Press Newswires, Apr. 11, 1999,
available at Westlaw, newsworld-pro database, 4/11/99 APWIRES 22:01:00.
---------------------------------------------------------------------------
Proposition B also was opposed by many in the business community,
including the Chambers of Commerce in Missouri's largest cities. Even
the major league sports franchises in the state--the Kansas City
Chiefs, the Kansas City Royals, the St. Louis Rams and the St. Louis
Cardinals, as well as the Major League Baseball Players Association and
the National Football League Players Association--opposed it. These
business and sports interests were deeply concerned about the prospect
of thousands of people carrying concealed weapons into restaurants and
stadiums, venues where alcohol is sold and consumed.
Proponents of the ballot initiative emphasized that Ashcroft had
volunteered his time and effort to support the initiative. That
Ashcroft would volunteer to do the NRA's bidding, while ignoring the
concerns of law enforcement and the business community, on an issue far
distant from his responsibilities as a U.S. Senator, demonstrates his
unyielding fealty to the gun lobby. Fortunately, the voters of Missouri
heeded the warnings of law enforcement and business interests, and
rejected Proposition B.
Support from the Gun Lobby
Ashcroft's work in support of the gun lobby's agenda has not gone
unrecognized. During the 2000 Senatorial campaign, the NRA gave
Ashcroft an ``A'' rating, with NRA chief lobbyist James Jay Baker
telling The Hill newspaper, ``We plan to do whatever it takes to make
sure John Ashcroft retains that seat.'' \6\ Baker was true to his word.
The NRA and other pro-gun groups reportedly spent close to $400,000 on
his unsuccessful bid for a second Senate term.
---------------------------------------------------------------------------
\6\ The Hill, May 10, 2000, at 3.
---------------------------------------------------------------------------
Other extreme pro-gun groups have recognized Ashcroft as well. In
March 1998, the Citizens' Committee for the Right to Keep and Bear Arms
gave Ashcroft its ``Gun Rights Defender of the Month'' Award for
leading the opposition to Dr. David Satcher's nomination as Surgeon
General of the United States. Pro-gun groups opposed Satcher because he
had served as head of the Centers for Disease Control during a period
when CDC was funding groundbreaking research into the dangers of guns
in the home. Much of this research was published in prestigious peer-
reviewed journals such as the Journal of the American Medical
Association.\7\
---------------------------------------------------------------------------
\7\ See, e.g., Arthur Kellerman et al., Suicide in the Home in
Relation to Gun Ownership, 327 New Eng. J. Med. 467-472 (1992); Arthur
Kellerman et al., Gun Ownership as a Risk Factor for Homicide in the
Home, 329 New Eng. J. Med. 1084-1091 (1993).
---------------------------------------------------------------------------
Ashcroft and the Second Amendment
Even more disturbing than Ashcroft's unwavering record opposing gun
safety laws are his stated views about the constitutional significance
of guns. In 1998 he convened a Senate Subcommittee hearing on the
meaning of the Second Amendment to the U.S. Constitution.\8\ At that
hearing, Ashcroft set out his view of the purpose of the Amendment:
---------------------------------------------------------------------------
\8\ The Second Amendment reads: ``A well regulated Militia, being
necessary to the security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.'' U.S. Const. Amendment II.
---------------------------------------------------------------------------
Indeed, the Second Amendment--like the First--protects an important
individual liberty that in turn promotes good government. A
citizenry armed with the right 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.\9\
---------------------------------------------------------------------------
\9\ Hearing before the Senate Subcommittee on the Constitution,
Federalism and Property Rights of the Committee on the Judiciary, 105
th Cong. 3 (1998) (statement of the Honorable John
Ashcroft).
---------------------------------------------------------------------------
The Senator thus aligned himself with what has been called the
``insurrectionist'' view of the Second Amendment.\10\ According to this
extreme and discredited theory, the purpose of the Amendment is to give
individuals the means to take up arms against government officials if
they become--in the gun owner's view--``tyrannical'' or ``despotic.''
---------------------------------------------------------------------------
\10\ See Gary Wills, A Necessary Evil: A History of American
Distrust of Government, at 205-21 (1999); Carl T. Bogus, The Hidden
History of the Second Amendment, 31 U.C. Davis L. Rev. 309, 386-404
(1997); Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26
Val. U. L. Rev. 107, 110 (1991).
---------------------------------------------------------------------------
No court has adopted the insurrectionist theory. Indeed the federal
appeals courts, including the United States Supreme Court, unanimously
have held that the Second Amendment guarantees a right to be armed only
in connection with service in a state-organized militia.\11\ As
historians and legal scholars have recognized, to read the Constitution
as sanctioning insurrectionist activity is to invite anarchy. Dean
Roscoe Pound prophetically wrote more than forty years ago:
---------------------------------------------------------------------------
\11\ The United States Supreme Court held in United States v.
Miller, 307 U.S. 174, 178 (1939) that the ``obvious purpose'' of the
Second Amendment was ``to assure the continuation and render possible
the effectiveness'' of the state militia, and it ``must be interpreted
and applied with that end in view.'' Every federal appeals court has
agreed that the Second Amendment does not entitle individuals a right
to be armed for private purposes unrelated to service in a government-
sponsored militia. No court has held that the Second Amendment ensures
the right to be armed in preparation for insurrection against the
government. See Thomas v. City Council of Portland, 730 F.2d 41, 42 (15
th Cir. 1984); United States v. Toner, 728 F.2d 115, 128 (2
nd Cir. 1984); United States v. Graves, 554 F.2d 65, 66 n.2
(3d Cir. 1977); Love v. Pepersack, 47 F.3d 120, 124 (4 th
Cir. 1995); United States v. Johnson, 441 F.2d 1134, 1136 (5
th Cir. 1971); United States v. Williams, 446 F.2d 486, 487
(5 th Cir. 1971); Stevens v. United States, 440 F.2d 144,
149 (6 th Cir. 1971); Gillespie v. City of Indianapolis, 185
F.3d 693, 710 (7 th Cir. 1999); United States v. Nelson, 859
F.2d 1318, 1320 (8 th Cir. 1988); Hickman v. Block, 81 F.3d
98, 101 (9 th Cir. 1996); United States v. Oakes, 564 F.2d
384, 387 (10 th Cir. 1977); United States v. Wright, 117
F.3d 1265, 1273 (11 th Cir.), cert. denied, 522 U.S. 1007
(1997); Fraternal Order of Police v. United States, 173 F.3d 898, 906
(D.C. Cir.), cert. denied, 528 U.S. 928 (1999).
---------------------------------------------------------------------------
In the urban, industrial society of today a general right to bear
efficient arms so as to be enabled to resist oppression by the
government would mean that gangs could exercise an extra-legal
rule which would defeat the whole Bill of Rights.\12\
---------------------------------------------------------------------------
\12\ Roscoe Pound, The Development of Constitutional Guarantees of
Liberty, at 91 (1957).
---------------------------------------------------------------------------
As Pulitzer Prize winning historian Gary Wills more trenchantly put
it, ``[o]nly madmen, one would think, can suppose that militias have a
constitutional right to levy war against the United States, which is
treason by constitutional definition (Article III, Section 3, Clause
1).'' \13\
---------------------------------------------------------------------------
\13\ Gary Wills, Why We Have No Right to Bear Arms, The New York
Review of Books, Sept. 21, 1995, at 69 (emphasis in original).
---------------------------------------------------------------------------
It is deeply troubling that the nominee to become the chief law
enforcement officer of the United States would ascribe to the view that
the Constitution contains within its own text a guarantee of the right
to prepare for resistance to government authority. Ashcroft's sometimes
extreme statements about the federal government heighten this concern.
For example, as reported by the pro-gun Citizens Committee for the
Right to Keep and Bear Arms, he has likened ``today's power brokers and
policy wonks'' in the federal government to ``the European despots from
whom our Founding Fathers fled,'' and has explained that individuals be
allowed to ``keep and bear arms'' because, ``I am fearful of a
government that doesn't trust the people who elected them.'' \14\ In
objecting to a decision striking down a term limits law, he also has
referred to the Supreme Court as ``five ruffians in robes'' who ``stole
the right of self-determination from the people.'' He also vowed, ``I
will fight the judicial despotism that stands like a behemoth over this
great land.'' \15\ Such comments could be dismissed as merely
overheated rhetoric, were it not for Ashcroft's firmly-held conviction
that individuals have the right to be armed in preparation for violent
struggle against ``despotism.''
---------------------------------------------------------------------------
\14\ Statement prepared for POINT BLANK, reprinted at http://
www.ccrkba.org/defend1998.htm (last visited Jan. 2001).
\15\ Speech to Conservative Political Action Committee (``CPAC '')
on ``Judicial Despotism,'' March 6, 1997.
---------------------------------------------------------------------------
Ashcroft's endorsement of the insurrectionist theory, and his
strong condemnations of the federal government, raise disturbing
questions. If the Second Amendment's purpose is to keep government
officials in check through the persistent threat of armed revolt, then
why does it not confer a constitutional right to own firepower--machine
guns, hand grenades, surface-to-air missiles--to match that of the
government? And why would the Amendment not protect the right to form
private military forces that engage in preparation for civil war?
The implications of the insurrectionist theory have direct
relevance to Ashcroft's willingness to use federal power against
extremist groups that threaten violence. In Vietnamese Fisherman's
Association v. Knights of the Ku Klux Klan, 543 F. Supp. 198 (S.D. Tex.
1982), the KKK invoked the insurrectionist theory (unsuccessfully) to
argue that the Second Amendment protected its right to maintain a
paramilitary force. Paramilitary militia groups continue to use the
same arguments to justify their stockpiling of weapons. For example,
one militia leader in Colorado was successfully prosecuted for
illegally possessing a machine gun; another in Michigan stockpiled an
arsenal of weapons.\16\ How aggressive would Attorney General Ashcroft
be in moving against such extremist groups that are preparing for civil
war? Would he be constrained by his deeply felt views of the meaning of
the Second Amendment?
---------------------------------------------------------------------------
\16\ See Peter G. Chronis and Katherine Vogt, ``Militia suspect
pleads guilty,'' The Denver Post, Feb. 11, 1998, available at 1998 WL
6102040; Brian Wheeler, ``Militiaman's appeal `utterly meritless'
Federal appeals court upholds Battle Creek man's conviction, finding he
must finish out sentence,'' The Detroit News, July 7, 2000, available
at 2000 WL 3483670.
---------------------------------------------------------------------------
Ashcroft and the Defense and Enforcement of Gun Safety Laws
The gun lobby is never content to try to block gun safety
legislation from being enacted. Once the National Rifle Association
loses in Congress, it challenges the laws in court. It is the Attorney
General's responsibility to direct the legal defense of gun laws. For
three years, the NRA supported lawsuits against the Brady Act. Would
Attorney General Ashcroft have fought the gun lobby for three years to
protect this sensible public safety law? How can John Ashcroft be
trusted to vigorously defend and enforce laws that he believes to
violate our Constitution? How can he be trusted to oppose the legal
attacks of the very organizations to which he is beholden for past
political support?
In courts throughout the nation, important federal gun laws are
under legal attack. For example, in United States v. Emerson, 46 F.
Supp. 2d 598 (N.D. Tex. 1999), on appeal, No. 99-10331 (5 th
Cir.), the NRA has filed a legal brief supporting the defense of a
Texas doctor who threatened his estranged wife and daughter with a
semi-automatic pistol (and threatened to kill his wife's friends with
an assault weapon). The NRA is fighting the doctor's indictment for
possessing a gun while under a domestic violence restraining order,
arguing that the federal law barring such possession violates the
Second Amendment. Will an Ashcroft Justice Department agree with this
criminal defendant that the statute is unconstitutional? Would it have
even brought charges against this defendant?
In 1994, the NRA launched a constitutional attack on the federal
assault weapon ban, arguing that Congress did not have the power to
enact the ban. The NRA was dismissed as a plaintiff because it lacked
standing to sue. NRA v. Magaw, 132 F.3d 272 (6 th Cir.
1997). Gun manufacturers and dealers took up the constitutional attack
and their challenge also was dismissed. Olympic Arms v. Magaw, 91 F.
Supp. 2d 1061 (E.D. Mich. 2000). The case is now on appeal. During
Ashcroft's 1994 Senate campaign, he said he would have opposed the
assault weapon ban.\17\ In a 1998 letter to Sarah Brady, he called the
ban ``wrong headed.'' (See Attachment B.) According to the
insurrectionist theory of the Second Amendment, assault weapons are the
kinds of military guns needed by the citizenry to keep the government
in check. Can we count on Attorney General Ashcroft to vigorously
defend this statute, which has stopped the gun industry from flooding
our nation's streets with high-firepower military guns? How vigorously
will he enforce a statute he so strenuously opposes?
---------------------------------------------------------------------------
\17\ See Terry Ganey, ``Three Senate candidates stake claim to job
observers of Ashcroft predict his spot in ideological spectrum,'' St.
Louis Post-Dispatch, Oct. 24, 1994, available at 1994 WL 8205549.
---------------------------------------------------------------------------
In Springfield Armory v. Buckles, 116 F. Supp. 85 (D.D.C. 2000),
appeal docketed, No. 00-5409 (D.C. Cir. Nov. 30, 2000), the gun
industry is challenging the Clinton Administration's ban on the
importation of assault weapons that use highcapacity ammunition
magazines. A federal judge upheld the import ban and the Justice
Department is defending it on appeal. Will Attorney General Ashcroft be
vigilant in protecting the public from foreign-made assault rifles?
Given his record and rhetoric on guns, it is difficult to imagine
an Attorney General so ill-suited to be the nation's defender, and
enforcer, of our gun laws.
Conclusion
Despite great progress against gun violence in the past several
years, America still faces levels of gun violence unheard of in the
rest of the industrialized world. Our nation loses over 30,000 lives
every year to gun violence, including over 3,000 children and
teenagers. Because guns travel easily across state lines, an effective
national strategy against this plague requires a strong federal
response. Such a response requires strong laws and determined efforts
to protect, and enforce, those laws. The American people support strong
gun laws and strong enforcement of those laws.
John Ashcroft is opposed to the very laws he will be charged to
protect and enforce. His opposition is doctrinaire, unyielding and
rooted in his own deeply held constitutional philosophy about the role
of guns in society. His endorsement of the ``insurrectionist'' theory
of the Second Amendment is wholly outside the mainstream of American
legal thought and dangerous in its implications. We do not question the
sincerity of Ashcroft's views; indeed, it is that very sincerity that
counsels against confirmation. In the final analysis, it will not be
possible for him to set aside his deep philosophical convictions about
``gun rights.'' Those convictions are fundamentally incompatible with
the aggressive federal role in fighting gun violence that the American
people strongly support.
John Ashcroft will put our federal gun safety laws at risk. It is a
risk not worth taking.
Michael D. Barnes
President, Handgun Control
Dennis A. Henigan
General Counsel, Handgun Control
Chairman Leahy. Thank you.
Professor Dunn?
STATEMENT OF JAMES M. DUNN, VISITING PROFESSOR OF CHRISTIANITY
AND PUBLIC POLICY, WAKE FOREST UNIVERSITY, WINSTON-SALEM, NC
Mr. Dunn. Thank you, Mr. Chairman, members of the
committee. I deeply appreciate the opportunity to present
testimony before this distinguished Committee and respectfully
announce at the outset that I am opposed to the confirmation of
Senator Ashcroft to be Attorney General. I testify for myself
because I am not representing Wake Forest University, but I now
teach at the Divinity School of Wake Forest University.
From my perspective, the long history of Senator Ashcroft's
identification with and approval of the political agenda of
right-wing extremism in this country convinces me that he is
unqualified and unreliable for such a serious trust.
I speak primarily of one of his most notable initiatives,
the so-called Charitable Choice legislation. A full frontal
assault on the First Amendment mars Senator Ashcroft's career.
He has favored government-prescribed religious exercises in the
public schools, posting some version of the Ten Commandments,
thereby secularizing sacred Scripture, and paying public monies
for private and parochial schools. These outrageous
initiatives, they pale compared to one being considered to
contribute Charitable Choice schemes. Senator Hatch has rightly
and vigorously insisted, and I quote, ``those charge with
enforcing the law must demonstrate the proper understanding of
that law.'' And that is the point at which I contend that
Senator Ashcroft has amply demonstrated that he does not
understand the first freedom: Congress shall make no law
respecting an establishment of religion.
He has come down against settled law that he speaks of
frequently, case law, and the American way in church/state
relations. It seems that he just doesn't get it.
Now, that is the kindest and most generous interpretation
of his opposition to church/state separation. Either he has a
blind spot, a lapse, or he is one of those who would willfully
and intentionally destroy the doctrine of church/state
separation that we have known in this country.
He was also a party to an incredible abuse of the Free
Exercise Clause, keeping Missouri the only State in the Nation
to exempt church-sponsored day-care centers from fire, health,
and safety regulations. One State-exempt center in St. Louis
was found to have 100 children with two adults caring for them.
Dog pounds in that State have more State supervision than
church-based child care.
When government advances religion in any way, it inevitably
becomes involved in religious practice. Charitable Choice, so-
called, allows and perhaps compels State governments to provide
taxpayer-funded social services through pervasively sectarian
institutions. My doctoral studies and 35 years of serving
Baptists in social justice agencies gives me a heightened
appreciation of the separation of church and state as an
essential protection for both vital and voluntary religion.
As the principal architect of Charitable Choice
legislation, Senator Ashcroft tacked it on to welfare reform in
a last-minute vote in August 1996. I and many others have been
challenge the constitutionality of this legislation because we
believe that the dumping of tax dollars on faith-based programs
is dangerous. We cannot afford to abandon the separation of
church and state. It is the greatest contribution of the United
States to the science of government. And we cannot deny that
the American way in church/state relations, which involves the
separation of institutions of religion from the institutions of
government, has been good for both the church and the state.
It is clear that religious liberty's essential corollary is
the separation of church and state. When anyone's religious
freedom is denied, everyone's religious freedom is at risk.
Having one's tax dollars taken by government coercion and
turned over to pervasively sectarian outfits to do good
threatens everyone's civil and religious liberties. Some
truisms are true: ``He who pays the fiddler calls the tune.''
And there is no religion-related regime that I know of that
wants the rules and regulations or even the reporting that goes
with government-handled money. It is clear that most ministries
sell their souls for a mess of politics-tainted pottage the
very day that they embark on the course of government gimmies.
One cannot assume that tax dollars will not change the
nature, even the freedom and effectiveness, of faith-based
programs. It requires a leap of faith that even Kierkegaard
couldn't muster to think that the source of funds will not
shape to some degree the programs that those funds pay for.
Practical partnerships between government and religion
abound already, but most Americans have absolutely no idea how
significantly Charitable Choice schemes would and are changing
current law, or, worse, eviscerating religion's vitality by
developing a dependence upon tax money for church-based
programs. Such plans permit exactly what the Supreme Court
repeatedly has prohibited--the use of government money to
finance religious activities. They offer an invitation to
federally funded proselytizing with a legal license thrown in
to boot.
Now, I am acutely aware of the traditions of this august
body and generally appreciative of the high degree of mutual
respect and forbearance exhibited by Senators in their
interaction with one another. And that is precisely what
concerns me, because I see the possibility that the U.S. Senate
could sacrifice religious liberty, civil rights, civil
liberties on the altar of senatorial civility. I pray that you
will not do that, and I appeal to you not to confirm Senator
John Ashcroft as Attorney General.
[The prepared statement and attachments of Mr. Dunn
follow:]
Statement of James M. Dunn, Professor of Christianity and Public Policy
at Wake Forest University, Winston-Salem, NC
Mr. Chairman and members of the Committee, I deeply appreciate the
opportunity to present testimony before this distinguished Committee
against the confirmation of Senator Ashcroft to be Attorney General.
I'm profoundly aware this is not a matter to be taken lightly and
recognize and appreciate the profound seriousness of rising to oppose
any president's nomination to one of the most important posts in our
nation.
However, the long history of Senator Ashcroft's identification with
and approval of the political agenda of religious, right-wing extremism
in this country convinces me that he is utterly unqualified and must be
assumed to be unreliable for such a serious trust.
While others are calling attention to his abuse of power in the
confirmation process (not unlike the exercise in which you are engaged
at this time), his support for concealed weapons, his opposition to
therapeutic abortions even in the most compelling cases, and his
outspokenness against other civil liberties, I speak simply to my
concerns about one of his most notable initiatives, the so-called
``charitable choice'' legislation.
When government advances religion in any way, it inevitably becomes
involved in religious practice. It seems that ``charitable choice'' is
a frontal assault on the First Amendment's Establishment Clause that
forbids government from advancing or becoming entangled in religious
affairs. Yet ``charitable choice'' allows and perhaps compels state
governments to provide taxpayer-funded social services through
pervasively sectarian institutions. My doctoral studies leading to a
Ph.D in ethics and 35 years of serving Baptists in social justice
agencies, gives me a heightened appreciation for the separation of
church and state as an essential protection for vital and voluntary
religion.
The principal architect of ``charitable choice'' legislation,
Senator Ashcroft, tacked it on to welfare reform in a last-minute
midnight vote in August 1996. I and many others challenge the
constitutionality of this legislation and the idea that it is simply
allowing churches to use federal tax dollars for social programs that
would otherwise be funded by government. This dumping of tax dollars on
``faith-based'' programs is extremely dangerous.
One cannot reconcile Senator Ashcroft's role as reckless innovator
with his history as a rigid ideologue. And, although it's been one of
his most irresponsible initiatives, it has been almost ignored by media
critics.
As a people we cannot afford to abandon the separation of church
and state, the greatest contribution of the United States to the
science of government. We cannot deny that the American way in church-
state relations has been good for the church and good for the state.
It is clear that religious liberty's essential corollary is
separation of the structures of state from the institutions of
religion. When anyone's religious freedom is denied everyone's
religious freedom is endangered.
Having one's tax dollars taken by government coercion and turned
over to pervasively sectarian outfits to do good threatens, at least a
little bit, everyone's civil and religious liberties. Some truisms are
true, like ``he who pays the fiddler calls the tune.'' There is no
religion-related regime that wants the rules and regulations, even the
reporting, that goes with government-handled money. It is clear to most
ministries that they sell their souls for a mess of politics-tainted
pottage the very day they embark on the course of government gimmies.
One cannot assume that taking tax dollars will not change the
nature, even the freedom and effectiveness, of faith-based programs. It
requires a leap of faith even Kierkegaard couldn't muster to think that
the source of funds will not shape to some degree the programs paid
for.
Religious leaders recognize the dangers inherent in ``charitable
choice.'' Among the national organizations opposed to ``charitable
choice'' provisions are Protestant and Jewish groups such as the
American Baptist Churches, the American Jewish Congress, the Baptist
Joint Committee on Public Affairs, Central Conference of American
Rabbis, Church of the Brethren, United Methodists, Presbyterian Church
USA, United Church of Christ, and the Unitarian Universalist Church.
While . opposition to ``charitable choice'' does not automatically
indicate that any organization opposes the confirmation of Senator
Ashcroft as Attorney General, it does reflect the seriousness with
which this mixing of church and state is seen.
Attached is a splendid article by Dr. John M. Swomley from
Christian Ethics Today, May-June, 2000, in which Mr. Ashcroft's
revisionist understanding of the religion clauses in the First
Amendment is highlighted. Also attached is the position statement of
the Baptist Joint Committee on Public Affairs in the same vein. While
the Baptist Joint Committee has never endorsed or opposed a nominee or
appointee, the attached resolution regarding ``charitable choice''
reflects the Committee's serious concern with this divisive issue.
It's ironic that a face card for faith like Senator Ashcroft is so
willing to ignore the first freedom: ``Congress shall make no law
respecting an establishment of religion''. It's not too much to call
him a reckless innovator.
But then there's the rigid ideologue side of the Senator. When it
comes to civil rights, civil liberties, concealed weapons, and abortion
issues, he is clearly a right-wing extremist.
I am acutely aware of the traditions of this august body and
generally appreciative of the high degree of mutual respect and
forbearance exhibited by Senators in their interaction with one
another. I am concerned, however, about the possibility that the United
States Senate could sacrifice civil rights and civil liberties on an
altar of senatorial civility. I pray that you will not do that. I
appeal to you not to confirm Senator John Ashcroft as Attorney General.
``Charitable Choice:'' An Analysis, by John M. Swomley
When the welfare reform bill was before the Congress, Senator John
Ashcroft of Missouri amended it with what is known as the ``Charitable
Choice'' provision. On the surface the idea of involving charitable
religious or other private organizations in work with poor or needy
persons sounds like a worthy cause, but it is not what it pretends to
be.
It is first and foremost an effort to have federal and state
governments pay churches, synagogues, and other charitable enterprises
for what they are already doing.
This device requires religious and other groups to sign government
contracts which make them become government agents rather than private
organizations doing good and helpful work as a part of their religious
mission or reason for existence.
Therefore it is essential to examine carefully any legislative
efforts to have government finance and direct religious and charitable
enterprises which were organized as non-governmental agencies and
religious, sectarian, or other ministries to people.
1. The Charitable Choice provisions are part of a larger public law
which is entitled The Personal Responsibility and Work Opportunity
Reconciliation Act of 1996. The legislation provides for federal
``Block grants to states'' as well as a state program ``funded under
Part A of Title IV of the Social Security Act.'' What this means is the
states would be forced to enter contracts with and engage in government
oversight of religious institutions, however sectarian. The world
``forced'' is used because any religious organization could sue a state
on the same basis as any other non-governmental provider that wanted a
government contract. That suit is possible because the law specifically
provides that ``neither the Federal'' government nor a State receiving
funds under such programs shall discriminate against an organization
which is, or applies to be, a contract. . .on, the basis that the
organization has a religious character.''
2. If the State of Missouri, for example, were to provide any
financial aid to religious organizations, it would violate the State
Constitution and make it vulnerable to lawsuits. That Constitution
states ``[No] money shall ever be taken from the public treasury,
directly or indirectly, in aid of any church, sect or denomination of
religion, or in aid of any priest, preacher, minister or teacher
thereof, as such. . .'' The State could be sued if it violated its
Constitution because the Constitution refers to ``public'' money--not
just State money.
3. One of the ``Charitable Choice'' provisions would permit the
provision of government social services in a house of worship and grant
religious contractors a right to display ``religious art, icons,
scripture or other symbols'' in any area where government-funded
service are provided.
4. The ``Charitable Choice'' provisions would permit religious
contractors to discriminate for or against employees based on their
religious beliefs, even though they are paid with government funds.
5. Under the ``Charitable Choice'' provisions the religious
organization, receiving and expending funds shall be subject to
government financial regulations and audits unless it sets up a
separate organization to do its work and disburse government funds.
6. The same law provides that no government contracts funds ``shall
be expended for sectarian worship, instruction, or proselytization.''
Yet it provides no enforcement mechanism and explicitly forbids
government control over the ``practices and expression of its
religious-beliefs.'' In any event, the provisions against ``worship,
instruction or proselytization'' is unenforceable because government
may not monitor or censor what churches express in their worship or
other expression.
7. Although this law specifically provides that beneficiaries of
religiously transmitted government assistance who object ``to the
religious character of the organization'' can ``within a reasonable
period of time after the date of such objection'' receive ``assistance
from an alternative provider'' nothing in the legislation provides for
notice to be given to beneficiaries to inform in them of such a right
or of the right not to be subject to compulsory religious worship or
proselytization.
8. The ``Charitable Choice'' legislation is likely to do serious
damage to the religious mission of churches that already provide
benefits to needy individuals with private funds. If other religious
organizations in the same area are funded by the government more
lavishly, there will be religious competition and in effect
encouragement or ``coercion'' of non-participating churches to get into
the government program.
9. If churches become government agents, one likely result will be
less active participation by church members and increased dependence on
government funds. Many European countries have already gone done this
slippery slope, thereby gravely damaging the attendance, stewardship,
and spiritual vitality of their churches.
Finally, in almost every city and country there are numerous churches.
Presumably state governments cannot furnish each of them with funds
either equally or equitable. Undoubtedly the churches, sects, or
denominations with the most political influence would get government
funding. When the government choose one or more churches or other
religious organizations over others or when churches seek government
funds, there is thereby an establishment of religious organizations by
the government.
It is evident that this legislation would seriously damage or
destroy separation of church and state by nullifying the First
Amendment clause the government ``shall make no law respecting an
establishment of religion.'' This measure not only authorizes federal
and state governments to fund churches and other religious institutions
``on the same basis as any other non-governmental providers'' but also
to make them agents of the state.
Are there alternatives to this blatant invasion of religious
liberty? There certainly are. One is for government directly to fund
its own welfare program with paid employees who are trained for social
service to persons in need.
Another is to provide a channel for religious and other charitable
organizations to make referrals to government agencies and even to
share information about existing programs.
Still another is for legislatures to encourage private giving by
tax incentives which would allow income tax deductions for non-
itemizers to deduct 50 percent of their charitable gifts over a
specified amount, such as $400 or $500.
Still another alternative is for religious organizations to form
separate entities to provide secular social services with tax money.
This is already being done by the Salvation Army, Church World Service,
Lutheran Services, and Catholic Charities.
Among the national organizations opposed to ``Charitable Choice''
provisions are Protestant and Jewish groups such as the American
Baptist Churches, the American Jewish Congress, the Baptist Joint
Committee on Public Affairs, Central Conference of American Rabbis,
Church of the Brethren, United Methodists, Presbyterian Church USA,
United Church of Christ, and the Unitarian Universalist Church.
Among the secular groups opposing this scheme are the American
Civil Liberties Union; American Federation of State, County and
Municipal Employees, Americans United for Separation of Church and
State, Americans for Religious Liberty, the National Education
Association; the National Black Women's Health Project; N.O.W Legal
Defense and Education Fund; People for the American Way; and others.
It is significant that not one far right religious organization
opposed it, such as the Christian Coalition, James Dobson's Focus on
the Family, or the Catholic Right to Life movement. Was it because they
oppose separation of church and state, or because one of their chief
spokesmen in the Senate, Senator Ashcroft, was advancing their agenda?
Certainly this ``Charitable Choice'' scheme violates the
Establishment Clause of the Constitution, numerous Supreme Court
decisions, and the whole idea that people of religious faiths and none
should not have their taxes used to support government financing of
religious organizations or any religion.
In short, the ``Charitable Choice'' concept strikes a heavy blow
against the American doctrine of separation of church and state.
Although the Congress has now passed this legislation and the President
has signed it into law, it is to be hoped that the courts will overturn
it on the clear basis that it is an egregious violation of the First
Amendment to the Constitution, the very cornerstone of our liberties.
Resolution on The Charitable Choice Provision in the New Welfare Act
From the founding of our country, Baptists have opposed the use of
tax dollars to advance religion. Baptists believe that, when the
government funds religion, it violates the conscience of taxpayers who
rightfully expect the government to remain neutral in religious
matters. Knowing that the government always seeks to control what it
funds, Baptists have long rejected government's handouts for their
religious activities. Government subsidization of religion diminishes
religion's historic independence and integrity. When the government
advances religion in this way, it inevitably becomes entangled with
religious practice, divides citizens along religious lines and prefers
some religions over others.
For these reasons, the Baptist Joint Committee opposes the so-
called ``Charitable Choice'' provision recently signed into law as part
of the Welfare Reform legislation. It is a frontal assault on the First
Amendment's Establishment Clause which forbids the government from
advancing religion or becoming entangled in religious affairs. This
provision will allow and perhaps compel state governments to (provide
taxpayer-funded social services through pervasively sectarian
institutions. If the aid is voucherized, it can be used to fund
religious worship and education. Finally, this provision may well
supersede state constitutional provisions that would prohibit these
funds from being used to advance religion.
There is a place for religious organizations in delivering welfare
services with public funds. But it should be done through separately
incorporated affiliates that do not engage in religious education,
proselytizing or discrimination. That way, religious groups can
preserve their theological purity and organizational autonomy, while
cooperating with government to deliver services to those in need.
The ``Charitable Choice'' provision runs counter to the interests
of religious liberty and church-state separation. Accordingly, the
Baptist Joint Committee calls for repeal of the ``Charitable Choice''
provision of the Welfare Reform legislation.
Dwight Jessup, Chair
Chairman Leahy. Thank you, Professor Dunn. I note from your
bio you served as a pastor and a campus minister and a college
teacher, served on the Baptist Joint Committee and so on. I was
struck by something you said in your testimony about the child-
care centers.
I am a parent, as are many on this panel, and I'm also
blessed to be a grandparent. I have always thought children are
the most vulnerable of our society and we should do everything
possible to protect them. We don't ask what religion they are
or anything else. We just make sure they are protected, whether
they are going to school or they are going to a child-care
center or anywhere else. So could you elaborate just what the
situation was that you were talking about? I think one thing
that would unite every one of us on this Committee is that we
want our children protected.
Mr. Dunn. Yes, sir. For a number of years, there have been
attempts to bring child-care centers in Missouri under the
fire, safety, and health regulations that apply to non-church-
related child-care center, and Senator Ashcroft has
consistently opposed that and continued to insist, as long as
he had any influence in that realm, that church-related child-
care, day-care centers were exempt from those State-imposed
rules and regulations for fire, safety, and health protection.
Chairman Leahy. What are some of these fire and safety
things?
Mr. Dunn. Crowding, the number of children that would--
overcrowding in the facility, the number of children that would
relate to each adult, the ratio between children cared for and
the adults.
The fire protection facilities that are required in other
public facilities, even though they are in church--
Chairman Leahy. Fire escapes and things like that?
Mr. Dunn. Fire escapes and doors and windows and so on.
I am not completely at sea over this issue because for 10
years, when I was the director of the Christian Life Commission
in Texas, Lester Roloff and Corpus Christi fought the State
regulations for fire, health, and safety that were proposed in
Texas and finally passed. After a survey was done, only three
of over 600 church-related day-care centers opposed those
protections.
I was outraged when I learned that the Missouri law had
exempted church-related day-care centers, which account for a
great number of day-care centers, from the laws that protect
children in regard to fire safety and health regulations, food
preparation, all that sort of thing.
Chairman Leahy. Am I misstating your position to say that
if a child is going to be in a child-care center, he or she
should have the same level of protection wherever he or she is?
Mr. Dunn. Absolutely.
Chairman Leahy. His or her religion makes no difference.
Mr. Dunn. Absolutely.
Chairman Leahy. A child is a child is a child.
Mr. Dunn. That is right.
Chairman Leahy. Congressman Barnes, like a number of others
on this committee, I am a gun owner. I would guess that the
majority of Vermonters are. I enjoy target shooting. To the
chagrin of some, I remind everybody I have a pistol range in my
backyard of my home in Vermont. I also believe, however, that
in this nation there are certain restrictions we are allowed
under the Second Amendment. Our legislative bodies have to vote
on those things. Some States require gun registration. Some do
not. We have the Brady law, and we have a number of other
things for checking on who can own a weapon, whether he or she
is a felon or not.
We usually have pretty heated debates getting to those
laws, but if we pass them, we pass them. Then it is left to
somebody to enforce them. The Attorney General gets to enforce
them in each State, and at the national level.
This applies not only for gun laws. The Attorney General
also gives advice and opinion on questions of law, as required
under 28 U.S.C. 511, throughout the executive branch. You
served here in the Congress, and you know what is like.
Somebody will come before you from Health and Human Services or
from HUD or anything else saying, well, we have an Attorney
General opinion saying under the law you passed, this is what
we are allowed to do.
Now, Senator Ashcroft said he would follow all of the laws
and so on. He has stated some very strong views on civil
rights, reproductive rights, and other matters, gun laws and so
on in the past. How confident are you that, as Attorney
General, when a department, whether it is HUD or U.S. attorneys
or anybody else, regarding gun laws or anything else, comes in
and asks Attorney General Ashcroft, ``how do you interpret
this? '' what are we supposed to do? What are your views that
the response will be objective?
Mr. Barnes. Well, thank you for the question, Mr. Chairman.
That is an extraordinarily important question, because the
nominee that the Committee is considering is an individual who
has expressed a view with respect to gun laws that is so
extreme that it goes beyond even many of the pro-gun groups in
the United States that advocate here before the U.S. Senate.
The view that he has expressed is known as the so-called
insurrectionist view, and that is that Americans have a
constitutional right to own guns so that they can defend
themselves against government officials if they believe those
government officials are tyrannical or despotic.
When I came here to the U.S. Congress a couple of decades
ago, there were no guards at the doors. There were no
barricades. There were no metal detectors. It is hard to think
that that was just so recent, but there were no guards at the
doors here in the government buildings. But over the past
couple of decades, there have been tragedies here in these very
buildings on Capitol Hill that caused the government to have to
install metal detectors and guards and all the rest. And that
has happened at every Federal facility in America because there
are Americans who are prepared to take violence against their
government.
This is an extremist view of the Constitution which is held
by only a very tiny percentage. Perhaps one one-hundredth of 1
percent of the American people believe that the reason the
Founding Fathers put the Second Amendment in there is so that
we can take up arms against our government. But that is the
view that Senator Ashcroft has expressed and defended before
this committee. And he distorted the views of James Madison in
order to defend that view. He referred to James Madison's
writings in a way that was directly contradictory to what every
constitutional scholar believes Mr. Madison was saying. Mr.
Madison was saying the opposite of what Mr. Ashcroft was saying
to this Committee in Federalist Paper No. 46.
So this is a very troubling matter for American citizens
who want an Attorney General who will, in fact, in a
responsible manner enforce the laws, and as you suggest, when
asked to interpret the laws, will do so in a way consistent
with American precedent and consistent with every court
decision that has ever been made on this matter. No Federal
court has ever agreed with Mr. Ashcroft's view of the Second
Amendment, and the Supreme Court has said, and I quote, that it
is ``obvious'' that this is not the correct interpretation of
the Constitution.
Chairman Leahy. Thank you, Congressman Barnes.
Senator Hatch?
Senator Hatch. Well, Mr. Chairman, I will put my statement
in the record. Just let the record show that I disagree very
strongly with both of your characterizations of John Ashcroft
and his voting record.
With that, that is good enough for me.
Chairman Leahy. Senator Kennedy?
Senator Kennedy. Thank you very much. I thank both of you
for your statements.
Mr. Barnes, as I understand it, there are 12 children that
die from gun accidents every single day. Is that your
understanding?
Mr. Barnes. Well, thank goodness, it is a little better
now. It is just under 11 children a day in the United States
dying from gun violence.
Senator Kennedy. And one of the great challenges that we
are facing as a society is how, as a society that cares about
children, we are going to free ourselves from those kinds of
terrible situations that scar families with human tragedy.
What does your own research show in terms of availability
and accessibility of guns to children? Does your research and
does your organization feel that the availability, the easy
accessibility of firearms to these children contribute to that
fact?
Mr. Barnes. Well, thank you for the question, Senator. I
can't help but note--and I apologize to you, Senator for this,
but I can't help but note that your presence in this room is a
reminder to every American that none of us is free from the
danger of gun violence, not a President of the United States,
not a Senator, not an Attorney General. Your family and our
country have suffered enormously because of gun violence.
There was a recent survey asking junior high school
students in the United States how long it would take them to
get a gun, and they said they could get a gun within a couple
of hours. And that is true virtually everywhere in America.
This is not just a problem in inner cities. It is a problem in
our suburban communities.
In the last 24 or 48 hours, we have had school shootings in
California, in Washington, D.C., in Maryland, a young boy
killed in the playground outside his school in my home State of
Maryland the day before yesterday. This is a terrible tragedy
that affects our children in every community in this country,
and we as a Nation obviously need to do much more to protect
our children.
Senator Kennedy. Well, when we have a record that is
against an effective closing of the gun show loophole the way
that you have described it, a record of opposition to the
assault weapons ban calling it ``wrong-headed legislation,'' a
record against child safety locks, for banning the importation
of high ammunition magazines--
Mr. Barnes. Against banning.
Senator Kennedy. Against banning the importation of high
ammunition magazines--and then took out ads in favor of making
guns more available and acceptable and concealable in the State
do you think that kind of record sends a message to parents who
are concerned about the safety and security, even in schools or
in their homes or in the main streets of this country, that
their children are going to be safer or more secure?
Mr. Barnes. Well, unfortunately, it actually has been a
priority for Mr. Ashcroft to fight against common-sense
provisions that would make our communities and our children
safer. It has been a priority for him. This is something he has
focused on throughout his career, and if it were just a matter
of his voting along with other Senators, perhaps our
organization would not have felt compelled to, for the first
time in our history, come out in opposition to a nominee for a
Federal position.
Senator Kennedy. Well, now, let me ask you this: Senator
Ashcroft has indicated that in the three cases that are
currently now out on the Brady bill and challenging the assault
weapons ban, that he will enforce the law, and also that he
will support the assault weapons ban. Should that be enough for
those who are concerned about the proliferation of weapons in
our society? I am accepting the given that we need to have
vigorous prosecution at the Federal level and at the State and
local level. We will put that aside. We are all in support of
that. But just on the questions of availability and the
accessibility, now that he has said that this is his position,
should that be enough to ease our anxiety on this issue?
Mr. Barnes. Well, we don't believe so, Senator. The
Attorney General sets the priorities for the Department with
respect to the litigation. The U.S. Government under
administration after administration, Republicans and Democrats,
has vigorously attempted to enforce these laws and to defend
cases.
Based on Mr. Ashcroft's record, there is no reason to
believe that he would want to do that. In fact, he opposed all
of these laws. So even though he has testified that he will
enforce them, there is certainly no reason to believe that he
would do so with any enthusiasm or would instruct the United
States attorneys to vigorously defend these laws, as they are
currently doing in case after case across the country.
Senator Kennedy. So you think there would be--my time is
up. Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
The Senator from Arizona, Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. I join Senator Hatch
in strongly objecting to the views expressed by Mr. Barnes with
respect to the Second Amendment and will join in his submission
to the record to clarify the real historical basis for the
Second Amendment. And I would also like to insert a piece in
the record that appeared in today's Washington Post, a column
by Charles Krauthammer, which more than refutes the biased and
extremist comments of Professor Dunn.
I have no questions.
Chairman Leahy. The senior Senator from California, Senator
Feinstein.
Senator Feinstein. Mr. Barnes, first of all, let me thank
you for your very good work. You know I am a fan of your
organization and of what you are doing, and I think in many
respects everything you do will hopefully make this Nation a
safer place for people.
I am concerned on the issue of concealed weapons, and I am
concerned as a person that has actually had a concealed weapon
permit. In 1976, I was the target of a terrorist organization.
They put a bomb at my house, and they actually shot out
windows. And so I had a concealed weapon permit from the chief
of police, a weapon, and trained in the use of that weapon. I
was also young enough and at the time strong enough to really
believe that I could make a difference if someone came after
me. You know, I didn't want to be held hostage. I had a
different view of things.
I gave up that permit when arrests were made and have never
possessed a weapon since that time. I want to make that clear
because certain organizations use that against me. But I
learned a lot about guns, having a gun, carrying a weapon,
knowing what it could do, knowing what it couldn't do, being
trained at a police range by police officers.
Having said that, I can think of nothing worse than letting
everybody have concealed weapons, with no training. Having
watched the increase of road rage, having seen people kill each
other over parking spots, a concealed weapon philosophy to me
is the height of irresponsibility.
Could you spend a few moments more in detailing that
proposition that was on the ballot, what it actually would do,
and comments that were made by Senator Ashcroft about it at the
time?
Mr. Barnes. Well, thank you for your question, Senator, and
thank you for your leadership on this issue. I, too, know a
little bit about what guns can do. I served in the United
States Marine Corps and was trained in the use of some pretty
high-powered weapons and had the same sense that you do about
this question.
In 1999, the gun lobby sought to get enacted into
legislation in Missouri a very extensive concealed weapons
carry law that would permit the citizens of that State to carry
guns virtually anywhere.
Senator Feinstein. How would they get a permit?
Mr. Barnes. I don't know the specific procedure by which
they would receive that permit under the law that was sought.
As I understand it, the legislature passed; the Governor vetoed
it. Or perhaps the Governor's threat of veto caused the
legislation not to pass it. I am not positive on that.
But, in any event, Governor Carnahan was opposed, and so
the gun lobby took this to initiative and put it on the ballot.
It was the only item on the ballot. It was in April when
nothing else was being voted on, there were no other elections,
nothing else being voted on, and the gun lobby was confident
that their supporters would come out and vote for it and that
it would easily pass.
But citizens of Missouri organized opposition to it, and it
was defeated, and it was defeated because people came to
understand that they did not want to go to a football game in
St. Louis or Kansas City and know that large numbers of other
people there would be carrying hidden guns. And they didn't
want to go to bars or restaurants or other places and know that
large numbers of people would be carrying weapons.
Senator Ashcroft argued that Missourians would be safer if
more people were carrying guns, and he supported this through
personal appearances and radio ads. I don't know what the
members of this Committee believe, but I don't know that I
would feel safer in this Committee room if we thought that half
the people here were carrying handguns. But that is the view of
some people, and that is apparently Senator Ashcroft's view.
It was defeated by the voters of Missouri.
Senator Feinstein. Do you have any information on his
record or his thinking with respect to felons being able to get
so-called relief from disability and obtain weapons?
Mr. Barnes. Yes. This is another controversial issue. The
gun lobby has argued and its supporters in the Congress have
argued that felons, convicted felons, after serving their time,
should be able to get the privilege of carrying a gun back. And
Senator Ashcroft has had that view.
Senator Feinstein. Thank you very much.
Thanks, Mr. Chairman.
Chairman Leahy. Thank you, Senator.
The senior Senator from Ohio, Senator DeWine.
Senator DeWine. Thank you, Mr. Chairman.
Professor Dunn, to summarize your testimony, I take it that
you are vehemently opposed to Charitable Choice.
Mr. Dunn. Yes.
Senator DeWine. And you disagree with Senator Ashcroft on
the issue. Correct?
Mr. Dunn. Profoundly--
Senator DeWine. Yes or no? Yes or no? This is summary.
Mr. Dunn. Yes, I disagree with him on Charitable Choice.
Senator DeWine. Thank you.
Chairman Leahy. Did you want to elaborate?
Mr. Dunn. I would like to add one short paragraph, two
sentences. I am absolutely convinced--
Senator DeWine. I think I understand your testimony. I just
want to make sure. My only point is that is your testimony,
that is a summary of your testimony, and we appreciate it for
that fact. You are welcome to elaborate, but--
Mr. Dunn. The only elaboration--
Senator DeWine. That is my summary of your testimony, and
it is a legitimate public policy debate that we can have.
Mr. Dunn. My point is simply on Charitable Choice that we
have not had a legitimate public policy in either the House or
the Senate on the issue of Charitable Choice. And with all due
respect, I would like to suggest or challenge the Members of
the House and the Senate to do their homework about the very
dangerous issue of dumping tax dollars into pervasively
sectarian institutions. We have debated vouchers and other
issues, but I don't think we have yet begun to debate the
Charitable Choice issue, and I hope you will do your homework
on some of the things that need to be done on Charitable
Choice.
Senator DeWine. Professor, I appreciate it. It is a
legitimate public policy debate. Thank you.
Mr. Dunn. I hope we have it. I don't think we have had it
yet.
Chairman Leahy. The Senator from Illinois.
Senator Durbin. Thank you, Mr. Chairman. I thank the
members of the panel.
I would say at the outset I am glad that--I don't think he
is here at this moment. I wish Senator Kyl were here. But I
read the Krauthammer piece in the Washington Post this morning.
I don't know if you have had a chance to read it, Professor
Dunn. But I thought the point he was making was somewhat
different than your point. He was arguing for tolerance of
religious belief, and you are raising the question about
taxpayers' funds going to religious institutions.
Mr. Dunn. Exactly. A very different point.
Senator Durbin. Two different points as I see them, too.
And let me say at the outset, Senator Ashcroft is very proud of
his religious beliefs and heritage, as he should be. He made a
point of that in his opening statement and noted his father's
work in his religion. And I frankly do not know the tenets of
his religion. If I were asked, I couldn't tell you what they
are. I know from reading press accounts that he doesn't dance
and he doesn't drink. I don't think that is relevant to the
position of Attorney General as to whether or not you imbibe or
dance. I don't know what Attorney General Reno's position is on
dancing and drinking, and I really don't care.
I think that--I want to make it clear for the record so
that there is no misunderstanding. I don't think anyone in the
course of this hearing has raised any question about Senator
Ashcroft's religious beliefs, nor should they. And the chairman
has repeatedly made that point and admonished the witnesses who
suggested it that that is not relevant to this debate. What is
relevant is the public record of John Ashcroft, period.
Mr. Dunn. I agree completely, and I am concerned about
extremism, whatever its source might be. I am not interested in
the deep motivations or the theological presuppositions that
bring one to extremist public policy positions. But my bias and
extremism that Senator Kyl referred to is largely verbatim
right out of the United States Supreme Court decisions.
Senator Durbin. Well, I am anxious to--I hope the Committee
accepts your invitation to have a hearing on this Charitable
Choice, because I come to it with mixed feelings, and I would
like to try to sort out a position that is a sensible one and
consistent with our constitutional principles. And I hope that
we will invite you back for that purpose.
I would also like, Mr. Chairman, at the request of Senator
Feingold, I understand there was a hearing last night in St.
Louis of the Women's International League for Peace and Freedom
that had a long list of invitees, and Senator Feingold has
asked me, since he can't be here at the moment, to request that
a transcript of that hearing be made part of the record, if
there is no objection.
Chairman Leahy. Without objection.
Senator Durbin. Let me also direct a question, if I can, to
Congressman Barnes.
Congressman Barnes, we served together, and I am glad to
see you here in this capacity, and thank you for good work. But
I would tell you that your rendition of John Ashcroft's record
on gun issues is John Ashcroft B.C.--before confirmation. John
Ashcroft B.C., in fact, did everything that you have said, but
in the last few days, we have heard a different approach. He
has said: I am in a new role, I am no longer an advocate, and,
therefore, I will enforce many of the laws that I actively
campaigned against and voted against. And if I am not mistaken,
he specified three that I might remember here: the Brady law,
triggerlocks, and the assault weapons ban.
And so he is suggesting that even if he opposed them, as
Attorney General he can enforce those laws and used examples as
Missouri Attorney General when, despite his own personal and
religious beliefs about the distribution of religious material,
he stopped that from happening in his State.
Now, that question has been raised, but I think it is worth
revisiting. Why do you feel that he cannot draw this clear line
between past conduct and past public record of 25 years and his
suggestion that as Attorney General he will take a different
approach?
Mr. Barnes. Well, thank you for your question, and it was
an honor to serve with you in the House.
Let me answer in two parts. First goes to an earlier
question, and that is, what would the priorities be of an
Attorney General, and based on his 25 years of fighting against
all of these laws--and not just being against them, but being a
leader in the fight against them--one would assume that he
would not make a priority of the enforcement of the law. That
is just common sense.
The second part of my answer would be that he has explained
in the past and before this Committee that his view of the
Constitution is such that he would have a difficult time in
rendering opinions as Attorney General with respect to gun
laws, rendering opinions that are consistent with the past
practice of the Department of Justice under both Republicans
and Democrats and consistent with the court rulings of every
Federal court in our history. He takes a very extremist view of
the constitutional--of the way in which the Constitution
addresses the issue of gun ownership in America. And it is on
the basis of this extremist ideology--and it can only be
described in that way because his view goes beyond that of even
some of the pro-gun organizations with which we are all
familiar--that we believe it is almost impossible to believe
that he would aggressively enforce these laws which he fought
against.
Senator Durbin. I guess the question that keeps returning
is this whole notion of settled law, and it comes up again and
again. And it was, I guess, the underpinning of John Ashcroft's
promise, that if it is settled law, I will enforce it.
In the area of choice, when we went into specifics, his
answers were not so specific and final. And I worry about
those.
But when it comes to the question of our laws and court
decisions relative to firearms, I think it is fair to say that
there will be cases testing State laws and new concepts on a
regular basis, and the new Attorney General will have to decide
when the Solicitor General will weigh in and how they will
weigh in, whether there will be an amicus brief filed, whether
there will be some memo filed, provided to Members of Congress
and the administration, the enforcement by U.S. attorneys, the
involvement of U.S. Marshals in enforcing law. I think on a
regular basis there will be a question of how much will be
dedicated to it and in what way.
I hope that that is a fair characterization of what you
have just described as the responsibilities that he might face.
Mr. Barnes. Well, that is right, and it is not an academic
question. The Attorney General faces these decisions almost on
a daily basis. There is an important case with respect to the
constitutional issue of gun ownership wending its way through
the Federal courts at this very time, and the Justice
Department is vigorously defending the law. Would Attorney
General Ashcroft direct his subordinates to continue that
vigorous defense? Based upon his view of these issues, as
articulated in the Senate and in speeches that he has made and
in writings, one would believe that that is unlikely.
Senator Durbin. Thank you very much.
Thanks, Mr. Chairman.
Chairman Leahy. Thank you.
Senator Sessions?
Senator Sessions. Well, Senator Ashcroft has stated clearly
that the Constitution protects an individual's right to keep
and bear arms. That view is supported by me, Senator Feingold,
Senator Schumer, I think Chairman Leahy. I know he votes less
than half--I see one number, less than half the time for
handgun control. And according to recent polls, a majority of
Americans agree with that.
I am concerned, Mr. Barnes, that your distortion of his
quote about James Madison's view of the Second Amendment is not
correct, and I think it was read in the record here the other
day and explained adequately.
I would note that at the hearing recently in that
constitutional law Subcommittee, of which Senator Feingold, I
believe, is the ranking member, Senator Feingold said this
about the purposes of the Second Amendment: ``The purposes
include self-defense, hunting, sport, and some certainly would
say, as would I, the protection of individual rights against a
potentially despotic central government.''
Well, I think that is what James Madison had in mind. I
think whether we agree with that or not, I believe that is an
accurate history of the Constitution. I believe Professor
Laurence Tribe, the liberal Harvard professor, agrees with
that. So I just want to say that.
No. 2, there was a suggestion about an Attorney General
opinion. When he was Attorney General of Missouri, he issued an
opinion that I will tell you, as an Attorney General in
Alabama, was a tough opinion to issue. And that was that
assistant district attorneys were not, I assume--in Alabama the
rule is they are not law officers and they could not carry
weapons, which is a tradition of many prosecutors. They
believe--they are trying cases, they are calling these people
criminals in court. They are afraid for their lives. He issued
an opinion contrary, I am sure, to the overwhelming number of
prosecutors in his State they could not do so under the law of
Missouri. That doesn't sound like somebody who will refuse to
obey the gun laws.
There is a chart up here, Mr. Barnes, that shows gun
prosecutions under Reagan and Bush. I was a Federal prosecutor
during that time. Those gun prosecutions went up every year. It
was a high priority of my office as a Federal prosecutor. It
was a high priority of every office because the Attorney
General insisted on it.
Have you criticized, ever, the Clinton-Gore Department of
Justice, Janet Reno's Department of Justice, for allowing those
prosecutions to plummet as they did?
Mr. Barnes. We have consistently urged strong prosecution
of the--
Senator Sessions. Have you ever criticized the Democratic
Department of Justice for allowing those prosecutions to fall
publicly? If so, I would like to hear where it was.
Mr. Barnes. We have criticized those here in the Congress,
including Senator Ashcroft who voted against funding for the
ATF and the Justice Department to adequately enforce the laws.
The administration requested funds for additional
prosecutors, additional ATF agents. The gun lobby fought
against this, as I am sure the Senator is aware. Senator
Ashcroft helped lead the right against adequate funding for
prosecution of gun laws. I do not know what the source of this
chart is--
Senator Sessions. Mr. Barnes?
Mr. Barnes.--but the statistics that I have seen--
Senator Sessions. I have had hearings.
Mr. Barnes.--indicate there has actually been an increase
of at least 16 percent in Federal gun prosecutions under
Attorney General Reno.
Senator Sessions. I have had hearings on it.
Mr. Barnes. That is the information I have seen from
reputable independent sources.
Senator Sessions. That is the source of Syracuse
University, but I had hearings on it in my Subcommittee. I have
raised it with Attorney General Reno every time she appeared
before the committee, the 4 years I have been in this office.
This administration, while condemning people who won't pass
more and more laws that burden innocent law-abiding citizens,
has allowed gun prosecutions to decline precipitously. They
have come up in the last 2 years after all the hearings we have
held and after taking a lot of abuse, but it is disappointing
to me that a supposedly non-partisan organization like yours
would criticize Senators who have serious constitutional
problems with some of the legislation that comes forward. You
would criticize them and their integrity and mine because I
didn't vote for all of these laws, but I had a task force to
prosecute gun prosecutions.
I put out a newsletter to local police and sheriffs to tell
them what kind of cases I would take, and our prosecutions went
up dramatically because I believed in enforcing laws against
guns that are legitimate and all laws against guns, whether I
believed they were legitimate or not, and I did so--
Mr. Barnes. That is our view as well, Senator, and we
commend you for your effort to strengthen the prosecution of
gun laws. We strongly support that.
Senator Sessions. Well, Senator Ashcroft has committed
before this panel publicly to reverse this decline and get the
numbers up, and I believe we will have a lot more effect on gun
crime by prosecuting criminals with guns than to always passing
more laws that burden honest people. That is my view. You may
disagree.
I would note that he did vote for the gun show ban which
was hotly disputed by some people on final passage of the
juvenile justice bill. That was a pretty intense vote, wasn't
it, Mr. Barnes?
Mr. Barnes. Well, he voted against it when it mattered.
Senator Sessions. He voted with Senator Hatch's bill the
first time, and on a close vote, the other bill prevailed, the
Lautenberg bill, and he voted for it on final passage. To say
he is an extremist on guns is not correct. There are a lot of
people that would disagree with that, and I think you are being
unfair to him and I question whether you are nonpartisan for
not criticizing the Department of Justice for a massive failure
to prosecute.
My time is up. Thank you.
Chairman Leahy. Finish your thought.
Senator Sessions. For not criticizing them for failure to
prosecute, but criticizing Senator Ashcroft for wrestling with
some tough constitutional questions about where the Second
Amendment properly applies.
Mr. Barnes. Mr. Chairman, could I just have 30 seconds to
respond on the first point the distinguished Senator made with
respect to this constitutional issue?
Chairman Leahy. Of course. You may respond.
Mr. Barnes. Let me just quote from former Chief Justice
Warren Burger, who as the Senator may know was a lifetime
hunter and gun owner who was appointed by Senator Nixon, and he
emphasized the danger of perpetuating the view that Senator
Ashcroft has stated before this Committee with respect to the
Second Amendment to the U.S. Constitution.
Chief Justice Burger said this is, and I quote, ``One of
the greatest pieces of fraud, and I repeat the word `fraud.' ''
That is his repetition, not mine, ``One of the greatest pieces
of fraud, and I repeat the word `fraud,' on the Americans
public by special interest groups that I have ever seen in my
lifetime.'' That is a quote from Chief Justice Burger about
this extremist view of the Second Amendment that has been
articulated by Senator Ashcroft, and it is a dangerous view,
Senator Sessions.
I would just suggest to you that the United States Senators
and, God forbid, an Attorney General saying to people, you have
a constitutional right to take up arms against your Government
if you think it is despotic or tyrannical, that is a bizarre
view. Do we really believe that our Founding Fathers put in the
Second Amendment a right to do this when they put in the
Constitution other more reasonable ways to change your
Government if you don't like it?
Senator Sessions. I just noticed a disputed view, and
Senator Feingold disagrees.
Mr. Barnes. You can vote against. We have elections in this
country. That is how you change your Government, not by using
guns. We have a process to amend the Constitution of the United
States. That is how you change your Government, not by using
guns. It is bizarre to believe that our Founding Fathers
thought that American citizens should have the right to weapons
in order to defend themselves against their Government. That
was not James Madison's view. That was not the view of any of
our Founding Fathers, and every court that has ever looked at
this issue in the history of our country has said that that was
not a constitutional view.
Chairman Leahy. The distinguished Senator from Alabama has
mentioned crimes rates again. As I said before, I would hope
that if Senator Ashcroft is affirmed as Attorney General, then
he would pay some attention to what the current administration
has done because, while we saw a consistent rise in violent
crime for the 12 years prior to the Clinton administration, we
have seen a consistent drop in the violent crime rate since the
Clinton administration arrived. I think that should be noted.
I also note that the Senator from New York is here, but
before we go to that, Senator Hatch read into the record
various items and letters. I will put into the record a letter
of January 18th, 2001, from Ambassador James Hormel to both
Senator Hatch and me.
I wish to read a couple points in it that are pertinent to
the debate we have had here. ``In response to Senator Leahy's
question''--this is Ambassador Hormel speaking--``In response
to Senator Leahy's question about why Mr. Ashcroft was willing
to vote against my nomination without attending my Committee
hearing or submitting any written questions for me to answer,
and subsequently refusing to meet with me, Mr. Ashcroft
responded, `I had known Mr. Hormel for a long time. He had
recruited me to go to the University of Chicago Law School,'
and then Mr. Ashcroft stated several times he had voted against
me `based on the totality of the record.''' Ambassador Hormel
says in his letter, ``I want to state unequivocally and for the
record that there is no personal or professional relationship
between me and Mr. Ashcroft which could possibly support such a
statement. I cannot recall ever having a personal conversation
with Mr. Ashcroft. I have had no contact with him of any type
since I have left my position as Dean of Students at the
University of Chicago Law School nearly 34 years ago in 1967.
For Mr. Ashcroft to state that he was able to assess my
qualifications to serve as Ambassador based on his personal
longtime relationship with me is misleading, erroneous, and
disingenuous. Furthermore, in my role as Dean of Students, I
did not recruit students to the law school. For Mr. Ashcroft to
state that he recruited me to the law school implies a personal
and direct relationship which simply did not exist,'' and he
concludes with, ``I find it personally offensive, Mr. Chairman,
under oath in response to your direct questions would choose to
misstate the nature of our relationship, insinuate objective
grounds for voting against me, and deny his personal viewpoint
about my sexual orientation by any role in his actions.
Sincerely, James C. Hormel.''
It will be part of the record.
Chairman Leahy. I yield to the distinguished senior Senator
from New York.
Senator Schumer. Thank you, Mr. Chairman.
I guess my first question is aimed at Mr. Barnes, and
``aimed'' being an appropriate verb, I guess, unintentional,
but appropriate.
I guess the question I have is let us say, hypothetically,
we have an Attorney General who would implement the wishes of
the NRA as Attorney General. How would enforcement and how
would policy in the administration change?
Mr. Barnes. Well, thank you, Senator, for the question.
Thank you for your important leadership on trying to make our
community safer. You have been a true champion for many years.
This is not an academic question either because Senator
Ashcroft has a very close relationship with the National Rifle
Association. The NRA said last year that it was among their
highest priorities to get him reelected to the U.S. Senate, and
they and other gun groups spent many hundreds of thousands of
dollars in support of his reelection last year. He has, to my
knowledge, never taken a position as a U.S. Senator in
opposition to the NRA. So it is a very important question.
Obviously, the National Rifle Association and other groups
of that type strongly oppose all these laws that the Attorney
General is called upon to enforce and would seek the weakest
possible enforcement thereof since they oppose them strongly
and oppose their continuation.
They have been sending out information to their supporters
that they will have a ``pro-gun'' Attorney General if Mr.
Ashcroft is confirmed, and they are obviously very much hoping
that he will be, that they will have an Attorney General who
would be listening to them and paying attention to their
concerns and their views.
This would be of enormous concern to those of us who
support the laws that are on the books that he strongly opposed
as a United States Senator.
Senator Schumer. Could you give us some specifics? Are
there workings within the Justice Department, within the ATF,
where, of course, the Attorney General doesn't have
jurisdiction, but, at least from my experience active in this
issue, often has a lot of say because the two agencies work
together?
Mr. Barnes. There is a case right now in the Federal courts
that the Justice Department has been very vigorously defending
in which a citizen of Texas was accused of violating Federal
gun laws, and this individual has been claiming a
constitutional right to not abide by Federal gun laws. The
Justice Department has been very strongly making the case to
the courts in Texas, Federal court and now in the appellate
court, that these gun laws should be enforced.
One wonders whether in this particular instance, for
example, which is going on right now, a very important case, an
Attorney General with the views that Mr. Ashcroft has would
vigorously continue that.
Senator Schumer. The NRA is soret of anomalous to me. They
believe in enforcement in terms of sentencing criminals who
have guns. It is something I support.
Mr. Barnes. We all support that.
Senator Schumer. We all support that.
Mr. Barnes. Everybody supports that.
Senator Schumer. But when we try to go after gun dealers,
my office came up with a study which I think raised a lot of
eyebrows and changed our direction that 50 percent of the crime
of guns came from 1 percent of the dealers.
The NRA has been reluctant to either affirmatively provide
a support provision of the resources to do that, and, second,
actually they support things that put barriers in the way. You
cannot computerize records. An ATF record cannot be on the
premises of a gun dealer, all sorts of things like this.
Do you have any knowledge? We did not have enough time to
get into asking Senator Ashcroft those questions, although I
have to say I was glad to hear that he thought that
registration and licensing was not unconstitutional under the
Second Amendment. I give him credit for saying that.
But do you have any idea of the direction that he as
Attorney General might--and obviously, this is speculative--
pursue in terms of going after errant dealers?
Mr. Barnes. Well, again, one would have to assume, based on
his record, that this would not be a priority. It is a very
important issue, as you point out, Senator. There is a tiny
minority of gun dealers in America who really provide the vast
majority of guns for criminals, and the Federal Government
should be progressively pursuing them. Based upon Mr.
Ashcroft's history and the fact that his supporters in the gun
lobby would oppose those kinds of actions, one would doubt that
he would vigorously take those actions.
Senator Schumer. Thank you, Mr. Chairman.
Chairman Leahy. Senator Specter?
Senator Specter. Congressman Barnes, in my discussions with
Senator Ashcroft, he has stated to me a keen interest in a
number of the operations which have been conducted in Richmond,
the Eastern District of Pennsylvania, on Federal court
prosecutions of people who violate the laws with guns.
We have the armed career criminal bill which has brought
the Federal Government, as you know, into prosecution which
relates to street crime if you have three or more serious
offenses, and that includes burglary and robbery if caught in
possession of a gun, you can get what is the Federal equivalent
of a mandatory life sentence of 15 years to life. That is one
of the items which many of us have been pressing to deal with
people who violate the law with guns on the career criminal
category where it is estimated that as many as 70 percent of
violent crimes are committed by career criminals.
To what extent would you give Senator Ashcroft credit on
the g understand issue for activism on that point?
Mr. Barnes. We strongly support efforts to increase
prosecution and to go after the career criminals as the Senator
suggests, and we would commend any Senator, Senator Ashcroft or
any other Senator that would support that.
Senator Specter. Well, that is one of the points which has
concerned me over the years, the issue of sentencing. At one
time as D.A., I asked the Board of Judges of Philadelphia
County to put out a directive of a 1-month sentence of somebody
who is convicted of carrying a concealed deadly weapon which
seemed to me very, very nominal, the kind of battle which I
fought in the 1960's and 1970's on the issue of sentencing.
One of the first bills that I produced when I came to
Congress was the armed career criminal bill. I had a lot of
trouble finding any support for bringing the Federal Government
into the issue of street crime, but we had many of these career
criminals who were given very light sentences in State courts
and I wanted to send some of them down to the Federal court to
get a mandatory life sentence, 15 years to life, and then they
go back to the State courts, they would enter guilty pleas,
maybe 5 to 10 or 7-\1/2\ to 15, but I think Senator Ashcroft's
commitment there is an important item on the issue of dealing
with guns.
Mr. Barnes. This is an interesting dynamic, and that is
that everybody supports strong enforcement of the gun laws.
Certainly, we do, but there is a contradiction here that many
say that that is all we need to do, and that we do not need
child safety locks to protect our children, do not need to
close the gun show loopholes to keep criminals from getting
easy access to guns at gun shows, we do not need an assault
weapons ban, we do not need to ban cop killer bullets, et
cetera, et cetera.
Our view is that we need both. We need common-sense
restrictions on easy access to weapons by people who shouldn't
have them, and we need very tough enforcement.
You mentioned Richmond and Philadelphia. I have had
conversation with the police chief in Richmond about the good
work that they are doing there in cooperation with the Federal
authorities there, including the United States Attorney, to
crack down on crime, and they have had some real success in
Richmond.
So we strongly support those initiatives that you and
others have taken a leadership role on, Senator.
Senator Specter. Professor Dunn, on the issue of freedom of
religion--and I appreciate your comments that we had a little
discussion during the break before you started to testify--it
is a matter of obviously enormous importance in this country.
There has been a question of religious profiling which I do
not think has been undertaken by anybody on this committee, and
the two aspects of the First Amendment freedom of religion deal
with freedom to pursue one's own religion and to stop the
Federal Government from intertangling the Government with
religion.
Do you think that there is any limitation on appropriate
inquiry in the confirmation process about allowing one's
religious views to be one's private matter, but any limitation
on saying how is that going to affect your duty to enforce the
other half of the First Amendment to keep Government out of
religion?
Mr. Dunn. I think the confirmation process obviously has a
great deal of freedom to pursue the philosophy and the
constitutional understandings and the political advocacy of
anyone who comes before this committee. Not only this
committee, Senator Specter, but our whole Nation has a stake in
one's philosophy of public policy and how it is shaped.
I was in Texas in 1960 when there was an appropriate
anxiety about John F. Kennedy's religion, and he dealt with it
in the most wonderful and frank and forthright way. He met with
those who were questioning whether his philosophy about public
policy and the Constitution and Government would be unduly
affected by his religious background.
He met with those folks and assured them, 500 preachers in
Houston, Texas, that he would stand for the First Amendment as
an advocate of church-State separation and religious freedom,
and then he did it very courageously in one or two instances
that were notable, and I think it is appropriate to ask, just
as Congressman Barnes has, about one's philosophy of extremism
regarding the Second Amendment.
I have concluded--and I know you don't all agree with
this--that Senator Ashcroft has an extremist philosophy
regarding the First Amendment which would slight the importance
of church-State separation and misunderstand the importance of
the free exercise as he did with contending consistently that
Missouri could be the only State in the Nation that does not
require church-based day care centers to abide by health,
safety, and fire regulations. So I think it is a legitimate
question that we look at the outcomes and the public policy
philosophy. I don't agree that we ought to probe into their
religious beliefs. I believe very strongly in Article VI that
there should be no religious test for public office, and we
certainly have no basis for doing that.
Senator Specter. A brief concluding comment. There have
been some who have said that opposition to Senator Ashcroft
arises because of his deeply held religious views, almost a
question of religious profiling. And I think it is important to
give America assurance that that is not what is going on here,
and that there is a line of inquiry to be sure that there will
be separation of church and state as he would carry out the
duties of Attorney General if confirmed, and that there is not
any heavy hand of religious profiling or any inappropriate
inquiry as to Senator Ashcroft's religious views.
Mr. Dunn. I would agree with that completely.
Senator Specter. Thank you.
Chairman Leahy. Senator Hatch, do you have anybody further
on your side?
Senator Hatch. I think we are completely through.
Chairman Leahy. And let me check with the staff here.
Senator Feingold? On his way. Let us just wait.
Just so I understand where we are--incidentally, to follow
up on what the Senator from Pennsylvania said, I would
emphasize again what both Senator Hatch and I said at the
outset of these hearings, that there are no religious tests
here. We probably have about every religion possible
represented on this panel, and this would be the last panel in
the world to have any.
We are going to hear questions from Senator Feingold, then
dismiss this panel, and have a couple of final statements from
Senator Hatch and myself.
Senator Hatch. Could I just take one moment, Mr. Chairman?
Chairman Leahy. Of course.
Senator Hatch. I read Mr. Hormel's letter, and he admits he
was dean of students, admits that he had gone to various
universities, maybe not to recruit, but at least talk about the
University of Chicago, and then he implies that the only reason
John Ashcroft had for voting against him was because he was a
gay individual.
Now, as one who supported him as Ambassador for Luxembourg,
I have to say this. I remember at least one professor at my law
school 40 years ago, was so bigoted, I would not support him
for dog catcher. And it was because of the experience I had in
law school. So for him to just say--believe that everything is
coming down at him because he is gay is just wrong, especially
since Senator Ashcroft said that was not what entered into his
decisionmaking, or at least certainly, I thought, made it clear
to me.
So I just wanted to set that record straight. I mean, I
would not have supported this one law professor, like I say,
for anything, because he was a total bigot, political bigot as
well, and a very smart guy, and that was 40 years ago. I have
to say I had a relationship with him in the sense of knowing
him, taking classes with him, and taking discussions with him.
I suspect that that is in the context of what Senator Ashcroft
meant. I just wanted to make that clear.
Chairman Leahy. The letter, of course--the letter speaks
for itself.
Senator Hatch. Yes, I think it does.
Chairman Leahy. And it does say--Ambassador Hormel says,
``I want to state unequivocally and for the record that there
is no personal or professional relationship between me and Mr.
Ashcroft which could possibly support such a statement.''
Senator Hatch. I can accept that.
Chairman Leahy. And--
Senator Hatch. But I can see how John meant the law, you
know, in law school. Go ahead.
Senator Kyl. Mr. Chairman, I know we are waiting for
Senator Feingold as the last person to ask questions. Might I
just ask what the Chair's intention is, since we are now
essentially at--apparently at the conclusion of the hearings,
and what is the Chair's intention?
Chairman Leahy. That is a good question.
Senator Kyl. How long tonight will the record be open? What
else needs to be done and how will we be proceeding?
Chairman Leahy. I think some of this may have been
mentioned. Well, you were out. I should emphasize again for the
record, as I have said several times, that a number of Senators
from both sides have had to go in and out because we have got a
number of confirmation hearings going on at the same time.
We are waiting for the final part of the nominee's
paperwork to come in. Assuming that it is going to be in
today--and I understand from Senator Hatch that he has
assurances that it will be completed today--instead of doing
the normal procedure of leaving the record open for a week, we
are going to keep the record open until close of business
Monday so that we can have any follow-up questions--some have
already been submitted--but follow-up questions to the
witnesses and to the nominee. Of course, the time for any
Committee meeting would be in the purview of Senator Hatch next
week. Our normal meeting days I think are Wednesdays.
Senator Hatch. I intend to mark this up next Wednesday, and
I want everybody to be aware of that.
Chairman Leahy. Thursday. Thursday. I am sorry.
Senator Hatch. What is next Thursday?
Chairman Leahy. I said the normal day was Wednesday.
Senator Hatch. I hope we are not going to rely on
technicalities. I mean, my gosh, this is a cabinet-level
position.
Chairman Leahy. It is going to be your choice to call--
Senator Hatch. I told you Wednesday. I have said it for a
week now, and I do not see any reason why to delay.
Chairman Leahy. Orrin, Orrin, Orrin, now calm down, calm
down.
Senator Hatch. I am not calm.
Chairman Leahy. Calm down. You can call the meeting any
time you want.
Senator Hatch. No, I want some cooperation, and I feel you
will, and I intend to mark it up on Wednesday. I hope we can do
that.
Chairman Leahy. The staff, both staff reminded me when I
said our normal meeting day was Wednesday, that it is Thursday.
Senator Hatch. Sure.
Chairman Leahy. I just did not want to leave it on the
record to suggest that it is otherwise.
OK. Senator Feingold apparently is not coming. Then I
would--we have a couple more comments to make, but certainly
these two witnesses have been extremely patient, having stayed
here for a long time. You have our thanks and our gratitude
from the committee. I will let you step down.
Mr. Barnes. Thank you, Mr. Chairman.
Mr. Dunn. Thank you.
Chairman Leahy. This hearing has something of a--I am
trying to think of the best way to state this. It has something
of a modern-day Cinderella quality. You know, as the clock
approaches midnight, that part. It seems like many things are
not what they actually appear to be. The Senator Ashcroft we
have come to know over the past 6 years was an implacable foe
of a woman's right to choose, of affirmative action, of equal
rights for gay citizens. He was a determined, tireless, and, I
note, effective advocate for his point of view.
What we have seen over the past 4 days, however, has in
many ways been breathtaking. In Senator Ashcroft's mind, Roe v.
Wade is now settled law. Senator Ashcroft not only endorses the
assault weapons ban, he will now lobby President-elect Bush to
extend it. He will now apparently have no qualms about
aggressively enforcing laws to protect gays and lesbians. He
will now apparently enforce the laws and programs on
affirmative action, the same laws and programs that he opposed
for so long, having taken the same oath of office that the
Attorney General of the United States takes.
Now, in the spirit of bipartisanship, and given all of our
pledging to work well together--and we have tried to do that in
this committee--I will not characterize what we have seen
during the first 2 days of these hearings as a confirmation
conversion. I might suggest that it is a confirmation
evolution, in fact, a fairly rapid confirmation evolution. We
have pressed ahead since Tuesday afternoon to hear from the
nominee, and, by my count, 12 witnesses in support of this
nomination, and a representative sampling of witnesses strongly
opposed to this nomination. We have accommodated the witnesses
that the Republicans have requested to testify. We even
interrupted our proceedings on different occasions to hear from
Republican Senators and Representatives, both in office and out
of office, who wished to be heard.
We are concluding, as I said, at noontime because somebody
else needs this room, and I am trying to be respectful of the
Inauguration that takes place tomorrow, because the focus
tomorrow should be on the new President. He deserves that and
the country deserves that.
And at noon tomorrow, in accordance with Senate Resolution
7, the chairmanship of this Committee will revert to Senator
Hatch.
I might say on a personal basis that I have enjoyed working
with him on our reversal of roles, and I understand even better
what Senator Hatch has said to me--oh these many times during
the past few years--``Pat, do you think it is easy being
chairman of this place? Do you think it is easy trying to keep
everybody in line?'' Orrin, I should have listened more
carefully.
Senator Hatch. I do not care if you listened. Just be more
tolerant in the future.
Chairman Leahy. I want to thank all of our witnesses, both
for and against for their testimony, and for cooperating with
the Committee under these extraordinary circumstances. I want
to thank especially Congresswomen Maxine Waters and Sheila
Jackson Lee for staying past 9 o'clock on Wednesday night in
order to be heard.
I want to apologize in a way to the last panel, Professor
Dunn and Michael Barnes. The schedules forced us to cut into
their time, and they have had to stay here way beyond the time
we thought they would.
Now we are going to assemble the record and all the
submissions that have been made to it. The members of the
Committee should now have the opportunity to review the record
and do written questions for the nominee and other witnesses.
Once the record is complete, and the nominee's paperwork is
complete, I am going to work with the incoming chairman,
Senator Hatch, so we can have prompt consideration of this
important nomination by the committee.
I understand the nominee's financial disclosures and other
aspects of the standard submission remain outstanding. We were
only provided with a sample of speeches and writings, rather
than the comprehensive submission that this Committee has
insisted upon, and as the nominee, himself, has insisted upon
in prior years for other nominees. I note that one of my
questions to the nominee was about his speech on judicial
despotism. The nominee had not included this in his submission,
but I felt it was important because I thought it contained
inflammatory comments about his view of the role of the courts
and thus is relevant to consideration of his nomination.
To go back to the opening part of my statement when I said
the clock reaches midnight in this Cinderella saga, I wonder
what will happen when the clock does strike midnight. At the
time the Senate votes on Senator Ashcroft, will everything go
back to what it was? You know, the coachmen turn into mice, the
carriage turns into a pumpkin--whether where old policy
positions become dominant, and whether the John Ashcroft we
have seen over the past few days perhaps reverts to the John
Ashcroft we have watched vote all these years.
Frankly, as I said before, I wish our incoming President
had sent a nomination for Attorney General who would unite us
rather than divide us. I wish that there had been another
position in his incoming administration where he could have
used the talents of Senator Ashcroft. That did not happen. This
was the nomination before us. And our Committee has done the
best we could to handle this nomination fairly and fully. It
has been difficult. We all know John Ashcroft. We have served
with him. I do not know a Senator who does not like him. I do
not know a Senator who does not respect him and his commitment
to his family, and appreciates the friendships he has with so
many of us in both parties. As we said before, however, we
should not operate under club rules. We operate under the
Constitution to advise and consent.
There are 280 million people in this country--a very
diverse 280 million. The President-elect has said he wants to
unite us, not divide us. Of those 280 million Americans, only
100 get to vote on this question. The 100 of us must look
deeply into our souls, and make sure that we are representing
the country as best we can. In many ways, on a variety of
levels, I have been unsettled by the testimony this week, and I
know when I go back to my home in Vermont after this weekend
after the Inauguration, I will look forward to the solitude of
the mountains and the fields, and my farmhouse, where I can sit
and think about this, and I would encourage all members of the
Committee to do the same.
Senator Hatch?
Senator Hatch. Thank you, Mr. Chairman. I want to thank you
for conducting decent and honorable hearings, and for the good
efforts that you have made to work with me and other
Republicans and Democrats on the committee. I think we have had
a good cross-section of people and their particular viewpoints
and views with regard to Senator Ashcroft and the Justice
Department.
But I also think that we have seen some attempts here to
undermine a truly good man. The fact of the matter is, is that
I do not know of one Senator in the whole U.S. Senate who would
disagree with the statement that this is an honorable man of
integrity, that when he says he will do something, he will do
it. I do not know anybody who, looking at his record and his
life, who would conclude that John Ashcroft is anything but one
of the finest people they have ever met.
Now, you can have differences on issues, and you can have
differences on interpretations of a person's record. I think
some of the arguments on the school desegregation do not take
into consideration half of the problems that Attorneys General
go through, including Nixon, who was the Attorney General who
succeeded, as I recall it, John Ashcroft, who has been just as
criticized by Mr. Taylor as John Ashcroft was. The fact of the
matter is, is that that is what makes this country great, that
we can differ and we can raise issues, and that we can be for
or against somebody if we want to.
And I really believe it is very important to this body that
we not reject a good man. I do not think we will, and I would
be very upset if we do, because I think there have been some
things done here throughout these hearings that were very
detrimental to my concepts of what is decent and right. I think
there has been some testimony here that was outrageous, some of
which I would not even take the time to ask questions of,
because I think on its face was outrageous, and some of which I
did take some time to ask questions.
But here is a man who has almost 30 years of public service
to this country, 8 years as Attorney General of his State of
Missouri, during which time--again I will repeat it--he was
elected by his peers, the 50 state Attorneys General,
Democrats, Republicans, to become the President of the
Attorneys General Association, National Attorneys General
Association. Then he became Governor of Missouri and there were
difficult problems in Missouri, like other states. There is no
simple waving of a wand that can solve every racial problem
that existed in Missouri and perhaps other states as well. And
some come in here acting like he should have just done
everything to change everything that they thought should be
changed. The fact of the matter is, is that John Ashcroft
served 8 years as Governor of Missouri, and was elected by his
peers, all 50 Governors of this country, Democrats and
Republicans, as chairman of the National Governors'
Association. And every Senator I have talked to said that the 6
years that John Ashcroft served in the Senate, he is a man of
his word, he is a man of integrity and decency.
And I agree, and I have really appreciated Senator Leahy
making it clear that we do not have a religious test in this
country, and yet there have been people trying to make a
religious test out of John Ashcroft's fervent religious
beliefs, which he defined, in very interesting and accurate
terms, as compelling him to do what is right, that if he ever
had his religious beliefs contradict what he was doing as
Attorney General, he would resign before he would do something
wrong, or if he would violate a law that was passed. Now, that
is a pretty strong commitment.
John Ashcroft is a good man. He has been in the Attorneys
General mix for over 20 years by various Republican Presidents.
And I have to say he deserves to be treated like a good man.
And last but not least, there are some who would play
politics with this nomination in their zeal to try and convince
certain segments of our society that only Democrats care for
them. That is offensive. It is beyond belief. But that has
shown up during these hearings. And I personally resented it,
because the people on our side feel just as deeply about racial
and minority matters as any Democrat, and John Ashcroft cares.
Again, these have been interesting hearings. This is what
makes America great, that we can, in open forum, discuss these
issues. And I ask people to be fair, in the media, in the
Congress, and in general. And if you are fair, then we are
going to be lucky to have a man who has a reputation of getting
rid of crime as Attorney General of the United States, which
after all has been kind of overlooked as we have gone through
over 20 witnesses with no specific law enforcement officer
called. That is what the Attorney General is all about in many
respects, and that is what is making this land safe and free.
And I have no doubt that John Ashcroft will be fair to all
people, and that he will enforce the law as he has promised to
do under his religious commitment and otherwise, as he has
promised to do, even if he disagrees with that law. That has
been his reputation, and I suggest we ought to take this good
man of integrity at his word.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
I have often said the Senate can be and should be the
conscience of the Nation. All 100 Senators must now search
their conscience for how they will vote on this.
This confirmation hearing into the nomination of John
Ashcroft to be Attorney General of the United States is now
recessed.
[Whereupon, at 12:16 p.m., the Committee was adjourned.]
[Questions and Answers and Submissions for the Record
follow.]
[Additional materials including facsimile cover sheets and
published court opinions are being retained in the Committee
files.]
QUESTIONS AND ANSWERS
Responses of the Nominee to questions submitted by Senator Biden
1. You have sponsored legislation that would require drug testing
of all prisoners before their release and would prosecute those who
test positive for drug use. But you did not provide funding for drug
treatment in your bill.
As Attorney General, you would oversee more than 500 drug courts
nationally, and you would oversee treatment for prisoners in federal
prisons and grants to states to treat prisoners in their systems.
Question: Do you support drug treatment for criminals as effective
crime prevention? Would you vigorously support existing prison-based
treatment and work with me to ensure that treatment is provided for
those in the criminal justice system who need it?
Answer: Yes. I fully support prison-based treatment for criminal
offenders. I look forward to working with you to make it as effective
as possible.
2. Two offices within the Department of Justice are very near to
me: the COPS office and the Violence Against Women Office. We have had
very strong and effective directors of these offices over the last six
years.
Law enforcement officials and those concerned about domestic
violence have not stopped calling, writing, and faxing me since your
nomination was announced, wondering whether these offices will receive
a strong commitment from the Bush Administration.
I strongly support the objectives of the COPS program to place more
beat police on the streets of our nation's communities. In the last
Congress I was a cosponsor of your reathorization bill for the COPS
program. President Bush has pledged to maintain the current level of
funding for the COPS program, but has also pledged to increase the
flexibility of the program so that state and local authorities can
determine where the money can best be spent. I look forward to working
with you to achieve our mutual goals for the COPS program consistent
with the flexibility goals previously stated by the President. I also
have been a strong supporter of the Violence Against Women Act and look
forward to working with you to achieve the goals of that act.
Question: If confirmed as Attorney General, how important would it
be for you to maintain a separate COPS office within the Department to
recognize the federal commitment to state and local law enforcement
agencies across this country?
Answer: As I stated in my previous answer, I am a strong supporter
of the COPS program. The President has stated his support for
maintaining the current funding levels of the program as well as giving
it greater flexibility in order to demonstrate his strong commitment to
state and local law enforcement agencies across the country. I look
forward to working with you to achieve our mutual goals for the COPS
program consistent with the flexibility goals previously stated by the
President.
I appreciate the fact that you signed on as a co-sponsor of the
Violence Against Women Act of 2000, as we were making the final push to
enact the legislation. Senator Hatch and I had 74 co-sponsors,
including 29 Republicans.
The Violence Against Women Office within the Justice Department was
created in 1995 to implement the Act. The office works to ensure
enforcement of criminal provisions in the Act, assists the Attorney
General in formulating relevant policy, and coordinates and administers
grants funded by the Act. Many advocates of policies designed to
curtail domestic violence have suggested that this Office should be a
permanent, independent entity within the Department, with a director
who would be presidentially appointed and confirmed by the Senate and
would answer directly to the Attorney General or the Deputy Attorney
General.
Question: If confirmed, will you support a bill to create this
office?
Answer: As I have previously stated, I am a strong supporter of the
Violence Against Women Act and strongly support full funding in order
to achieve its objectives. I am reluctant to express a view on the
creation of new statutory entities within the Department until I have
had the chance to study the performance of the entities which exist
now. I look forward to working with you to make this program as fully
effective as possible.
Question: Will you maintain a strong Violence Against Women Office
and what qualities would you look for in a new Director?
Answer: I believe my previous answer expresses my strong commitment
to the Violence Against Women Act. I obviously will look for the best
possible director to carry out the duties of the Violence Against Women
Office, one committed to the high priority of enforcing the law and
helping ensure the safety of women throughout America.
3. Even the most conservative analysts agree that the 1994 Crime
Law that I worked on for five years to pass has been a significant
factor in the historically low crime levels throughout our country.
Crime is down for the eighth straight year, according to F.B.I.
reports, to the lowest levels in 30 years.
The key element of the Crime Law was the commitment to put 100,000
new police officers on the streets across America. We delivered under-
budget and ahead of schedule.
To date, the COPS office in the Justice Department has funded more
than 109,000 new officers.
More than 2,100 of these new officers are in your home state,
Missouri, which has received $129 million in Crime Law funds for new
police officers over the last six years.
Question: As Attorney General, would you fight for continued
funding for the COPS program and other Crime Law programs?
Answer: As I stated in a prior answer, I strongly support the
objectives of the COPS program to place more beat police on the streets
of our nation's communities. In the last Congress I was a cosponsor of
your reathorization bill for the COPS program. President Bush has
pledged to maintain the current level of funding for the COPS program,
but has also pledged to increase the flexibility of the program so that
state and local authorities can determine where the money can best be
spent. I look forward to working with you to achieve our mutual goals
for the COPS program consistent with the flexibility goals previously
stated by the President.
Question: As Attorney General, would you support in the inter-
agency process the bill I introduced last year to put 50,000 more
police officers on the street?
Answer: I assume your question refers to the COPS program
reauthorization bill I cosponsored with you in the last Congress. As
previously stated, I continue strongly to support the objectives of and
funding for the COPS program. I look forward to working with you to
achieve our mutual goals for the COPS program consistent with the
flexibility goals previously stated by the President.
4. Question: Would you support five-year re-authorization of the
Violent Crime Reduction Trust Fund to support law enforcement and
domestic violence programs?
Answer: While I cannot take a position on this specific
legislation, I am fully committed towards combating violence, and will
vigorously enforce any federal legislation enacted toward that end.
5. As your predecessor will attest, I track implementation of the
grants and programs in the Violence Against Women Act very closely.
Your state, Missouri, received $16 million in Violence Against
Women Act grants over the past six years, plus an additional $5.7
million in funds for domestic violence shelters.
Question: If confirmed, what will your commitment be to
implementing and tracking progress of the Violence Against Women Act of
2000?
Answer: If confirmed, I pledge to you that I will be strongly
committed to implementing fully the requirements enacted in the
Violence Against Women Act of 2000.
6. The Violence Against Women Act of 1994 and its re-authorization
passed last year create programs that have bolstered prosecution of
child abuse, sexual assault, and domestic violence cases; increased
services for victims by funding shelters and sexual assault crisis
centers; and increased resources for law enforcement and prosecutors.
Question: Under your leadership, how will the Justice Department
work to end violence against women?
Answer: One of the most important things that the Justice
Department can do to work to end violence against women is to enforce
the laws in this area fully and fairly. If I am confirmed, this is
precisely what the Justice Department will do.
Question: Will the Violence Against Women Office continue to
collect data and report on intimate partner violence, sexual assault,
and stalking?
Answer: If confirmed, I will ensure that the Violence Against Women
Office takes all actions necessary to fulfill the Justice Department's
duty to implement the Violence Against Women Act fully and fairly.
7. The Violence Against Women Act established several federal
crimes: interstate domestic violence, interstate violation of
protective orders, and interstate stalking. These laws have led to
dozens of federal prosecutions.
Question: Will you continue to enforce these laws vigorously?
Answer: Yes.
Question: What would your administration do to train and support
U.S. Attorneys in the continued prosecution of these federal crimes?
Answer: If confirmed, I will be fully committed to prosecuting the
federal crimes under the Violence Against Women Act, and will take
steps to ensure that all U.S. Attorneys are aware that this is a
priority.
8. Many have called for a federal hate-crime law. In June 2000,
Senator Kennedy proposed a Hate Crimes Bill that would extend criminal
protections to targeted communities by adding gender to covered
categories.
Question: Will you support passage of a federal hate-crime law to
include crimes based on gender?
Answer: As Governor of Missouri, I was proud to have signed the
first hate crimes legislation to be enacted in the State of Missouri. I
agree with the President in supporting Senator Hatch's hate crimes
legislation, which passed the Senate last year.
Question: Will you support expansion of the Hate Crimes Statistic
Act to include collection of data on gender-based hate crimes?
Answer: I would need to study the details of the current coverage
of the act and the issues raised by expanded coverage before reaching a
final determination. However, as Governor of Missouri, I was proud to
have signed the first hate crimes legislation to be enacted in the
State of Missouri. I agree with the President in supporting Senator
Hatch's hate crimes legislation, which passed the Senate last year.
9. As demonstrated in the legislative history of the Violence
Against Women Act, which includes seventeen state gender-bias studies,
our justice system has a significant problem: discrimination in
treatment of gender-based cases. There is also evidence of widespread
race discrimination in the criminal system, especially in the
prosecution and conviction of rape cases.
Question: Will your office continue to support programs and
training to eradicate race and gender bias within the courts and among
prosecutors?
Answer: Yes.
Question: What will you do to ensure eradication of race
discrimination in state prosecution of rape cases?
Answer: If confirmed as Attorney General, I will fully enforce all
federal civil rights laws, including the Fourteenth Amendment.
Together, these laws prohibit states from enforcing their criminal laws
in a racially discriminatory manner.
10. The Children's Health Act enacted in October 2000 contains a
number of important drug bills, including the methamphetamine bill that
you and I worked to pass. This Act included an anti-addiction
medication bill that Senator Hatch and I, along with Senators Levin and
Moynihan, worked very hard to pass. The legislation allows qualified
doctors to prescribe certain anti-addiction medications from their
offices, rather than specialized drug- treatment clinics. This new
concept will require time to take hold -- time for doctors to be
trained and patients to start taking the medication and time for
results to be collected and analyzed.
Question: I hope--and I would bet that Chairman Hatch also hopes --
that, as Attorney General, you would let this very important and
innovative program go forward. Can Senators Hatch, Levin, and I have
your commitment that you will help this program go forward?
Answer: I pledge that if confirmed, I will fully and faithfully
enforce the Children's Health Act, just as I will fully and faithfully
enforce all laws duly enacted by Congress.
11. One of the most important components of the Department of
Justice is its Civil Rights Division, which enforces federal statutes
prohibiting discrimination on the basis of race, sex, handicap,
religion, and national origin.
Historically, the most important tool the Civil Rights Division has
wielded in enforcing the law is the so-called pattern-or-practice suit.
As the name implies, this tool allows the Division to go after patterns
of discrimination, rather than the misdeeds of individuals. For
instance, the Civil Rights Division has used pattern-or-practice
litigation to reach consent decrees with several law-enforcement
agencies. The problem there was rooted not so much in discriminatory
conduct by individual officers, but in policies and patterns those
agencies adopted years ago that no longer reflect our law.
Question: Can we have your full commitment to the use of pattern-
or-practice litigation in enforcing our civil rights laws?
Answer: If confirmed as Attorney General, civil rights will be a
top priority for the Department of Justice. Indeed, the Department has
a special charge and solemn responsibility to enforce our nation's
civil rights laws vigorously. In so doing, the Department will use all
reasonable and appropriate enforcement tools at its disposable, to
effectuate those goals.
12. Most crime occurs in after-school hours when many children are
unattended.
Question: What role do you see for the federal government in crime
prevention in general and in after-school programs in particular, such
as those conducted by Boys and Girls Clubs?
Answer: The President has explained that he is firmly committed to
promoting after-school programs. In particular, he has stated that he
would introduce legislation to open 100 percent of the 21st Century
program's funding to competitive bidding. This will allow youth
development groups, local charities, churches, synagogues, mosques and
other community and faith-based organizations to compete for these
federal funds on an equal footing with schools. In addition, he has
stated that he will empower lower-income parents by providing
certificates to help defray the cost of after-school activities of
their choosing--whether run by a community group, a neighborhood
church, or a local school. He has indicated his desire to add an
additional $400 million a year to the Child Care Development Block
Grant to the states to help 500,000 low-income parents pay for after-
school programs. As Attorney General, I will fully support the
President's initiatives in these areas.
Responses of the Nominee to questions submitted by Senator DeWine
youngstown prison
In Youngstown, Ohio, there is a privately run, medium security
prison that houses inmates from the District of Columbia prison system.
This is a modern, fully operational prison facility that employs 500
people and is a significant part of the economic development of that
region of my state.
Currently, that facility is only half-filled. By September, the
D.C. contract will expire, and the inmates will be transferred. If
nothing is done, this prison will sit empty and those jobs will be in
jeopardy.
At the same time, the federal system is overcrowded and the Bureau
of Prisons is looking for new sites to build prisons. The Department is
also facing a lack of prison space for undocumented criminal aliens.
Something needs to be done to fill Youngstown and the Department
has plenty of need for beds. This really seems like a case where
everyone will win if the Department either buys the facility or agrees
to send prisoners to Youngstown. The Department needs more prisons, and
you need to house prisoners until you get the additional space.
Question: Will you take a look at Youngstown and help me fix this
problem?
Answer. Although I am not presently familiar with the situation, I
will be happy to look into it, consult with the experienced
professionals at the Department and the Bureau of Prisons, and work
with you on a constructive solution.
Responses of the Nominee to questions submitted by Senator Feingold
civil rights
Question 1: What are your priorities for the U.S. Department of
Justice, particularly the Civil Rights Division?
Answer: My highest priority is to ensure that the Department of
Justice lives up to its heritage of enforcing the rule of law, and in
particular, guaranteeing legal rights for the advancement of all
Americans. However, as I mentioned during the hearing, one of my
highest priorities at the Department will be to target the
unconstitutional practice of racial profiling.
Question 2: What is your view of the role of the Civil Rights
Division?
Answer: I believe that the Civil Rights Division must be at the
forefront of carrying out the special charge of the Department of
Justice to combat injustice and to ensure that all Americans are
treated fairly and free from invidious discrimination.
Question 3: In response to a question I posed about DOJ Pride (a
voluntary organization of gay, lesbian and bisexual DOJ employees), you
indicated that you would not discriminate against ``any group that [is]
appropriately constituted in the Department of Justice.'' Please
explain how you define ``appropriately constituted'' and indicate
whether you believe DOJ Pride fits that definition.
Answer: In my testimony I stated that I would not tolerate
discrimination against any employee at the Department of Justice
because of sexual preference. That answer stands. When I referred to
any ``appropriately constituted group,'' it was because I am unaware of
what current Department policies are regarding organization of
professional as well as other employees. Until I am fully briefed on
these and other personnel policies I am not in a position to express an
opinion on any particular organization or group of employees and
whether or not they are ``appropriately constituted.'' However,
assuming this organization is appropriately constituted under existing
Department policies, I have no intent to change those policies or treat
this group differently than any other.
Question 4: In response to a question about the policy Attorney
General Janet Reno instituted that sexual orientation not be a factor
for FBI security clearances, you indicated that you were ``not
familiar'' with this policy. Now that you have had a chance to become
familiar with it, will you continue and enforce this formal policy?
Answer: A review of FBI clearance policies, and FBI policies
generally, will be an ongoing process at the Department of Justice.
Consistent with my prior answer regarding discrimination based upon
sexual preference, I do not anticipate changing security clearance
policies which have previously received broad acceptance within the
government, to the extent which I will have any authority in the
matter.
Question 5: Given your strong opposition to Mr. James Hormel to be
the U.S. Ambassador to Luxembourg and your opposition to the Employment
Non-Discrimination Act, can you assure this Committee that you would
not consider sexual orientation in making recommendations to the
President on federal judicial nominees or high ranking Justice
Department officials?
Answer: As I have previously stated, my opposition to Mr. Hormel
was based on the totality of the specific facts and circumstances of
that particular case. My opposition to him in no way reflects a past or
future intent to discriminate against anyone based on sexual
preference. I have repeatedly committed that I will not discriminate
against anyone on that basis, and that I will not have any litmus test
for judicial nominees.
Question 6: The Justice Department under Attorney General Reno
actively investigated allegations of police misconduct by law
enforcement agencies and did not shy away from taking legal action to
protect the civil rights of Americans. Do you agree with the Justice
Department's decision to investigate and then enter into a consent
decree with the City of Los Angeles and Los Angeles Police Department?
Answer: As I have previously testified, I strongly support the
Justice Department's special charge to protect the rights of those
least able to protect themselves. I have expressed my opposition to
unwarranted strip searches, racial profiling, and other abuses of civil
rights by law enforcement authorities. While I have not been briefed on
the specific situation in Los Angeles, I oppose police misconduct
wherever it occurs.
Question 7: As you know, there is discretion in the Attorney
General's decision of how to proceed in such cases. The Attorney
General can take legal action, defer litigation and instead ``send a
letter of concern,'' or decline intervening at all. If confirmed as
Attorney General, how would you handle allegations of misconduct by a
police department?
Answer: It is the duty of the Civil Rights Division in the first
instance to investigate such allegations and to assess whether federal
intervention is appropriate. As Attorney General, I will trust state
and local law enforcement, but will fully enforce federal civil rights
laws. In light of their role in law enforcement, allegations that
police departments are engaged in law breaking raises particular
concerns to which the Department will be especially sensitive.
Question 8: What would your standard be for determining whether to
take legal action against a police department?
Answer: The question is difficult to answer in the abstract. My
answer would be guided by the facts and the law, in consultation with
professionals at the Department.
racial profiling
Question 1: The hearing held in the Constitution Subcommittee on
March 30, 2000, focused on racial profiling of motorists. Does your
opposition to racial profiling include racial profiling of airline
passengers or people walking down the street?
Answer: I have stated my strong opposition to racial profiling
across the spectrum. There should be no loopholes or safe harbors for
racial profiling. Official discrimination of this sort is wrong and
unconstitutional no matter what the context.
Question 2: On January 15, 2001, President Clinton called on
Congress to pass a law that bans racial profiling. Would you support
such a bill?
Answer: Former President Clinton proposed a host of things shortly
before he left office. I am unaware of the specifics of this particular
bill. I am certainly prepared to work with you on appropriate
legislation to deal with racial profiling in a clear and decisive
manner.
Federal Death Penalty: Innocence & the Clemency Process
Question 1: At the hearing, you acknowledged that our justice
system has made mistakes and that innocent people have been convicted
and even sentenced to death. Do you share the concern that a system
that sends innocent people to death is seriously flawed?
Answer: While I support the death penalty, I believe that there is
no greater injustice than to execute one who is innocent. No system of
justice is perfect, but I will certainly work with the President and
Congress to help insure that we have a system that protects the rights
of capital defendants.
Question 2: What, in your experience, causes these mistakes?
Answer: I do not think it is possible to isolate any single factor
or set of factors. For example the jury system of fact finding
enshrined in the Bill of Rights has never been said to be perfect. It
simply affords more protections against government abuses of individual
rights than other systems utilized in other countries. That, of course,
does not relieve government from the obligation to continue to work to
make the system fairer and more just.
Question 3: During the campaign last year, President-Elect Bush
stated that he applies the following test to clemency requests from
death row inmates: whether the person is guilty of the crime and
whether he or she had full access to the courts. Do you believe that
other considerations might be taken into account beyond whether the
inmate is guilty and has had full access to the courts?
Answer: President Bush was explaining in the context of a national
political campaign his general practice as Governor in Texas, a death
penalty state, regarding clemency applications in capital cases once
judicial avenues had been exhausted. While it is possible to conceive
of other considerations in a specific case, the ones to which then-
Governor Bush referred seem the most important and relevant ones.
Question 4: How do you define ``full access to the courts''?
Answer: I do not believe this term is a term of art. It has a
commonly accepted interpretation--that a defendant has received
representation by competent counsel, has received a fair trial, and has
exhausted or has chosen not to exercise all of his avenues of judicial
appeal.
Question 5: Given President-Elect Bush's and your strong support
for capital punishment, could you ever recommend a grant of clemency in
a death penalty case? What are the circumstances under which you would
recommend that the President grant clemency?
Answer: Yes. In determining any recommendation on this issue, I
would follow the guidelines that the President has outlined: I would
consider whether the person is guilty of the crime and whether he or
she had full access to the courts.
Question 6: If there is no question that the person is guilty, but
there are errors in the penalty phase of the trial--or, in other words,
errors that mean the difference between the defendant receiving a death
sentence or life without parole, might you support a grant of clemency
in such a case?
Answer: Any advice that I would give to the President is
confidential. However, the President has indicated that his decision
would be made based on whether the individual is guilty of the crime
and whether he or she has had full access to the courts. When questions
are raised as to whether an individual is guilty of capital murder, as
opposd to a crime for which the death penalty is not provided, I would
include such factors in my analysis and would advise him accordingly.
Question 7: What do you see as the role of the clemency process
when a person has a claim of innocence that has been rejected by the
courts? In such a case, would you be willing to review evidence or
circumstances that the appellate courts have never allowed a jury to
hear (e.g., because the courts never granted a retrial)? Do you believe
that clemency should only be granted in cases where the defendant
presents a claim of innocence?
Answer: As discussed above, the President has clearly indicated the
factors that he would consider in deciding whether to grant clemency.
The role of the clemency process is to determine whether there is a
basis for clemency based upon those factors. And this process should
include all evidence that bears on the factors outlined above.
Federal Death Penalty: Report and Continuing Review
Question 1: On September 12, 2000, the U.S. Department of Justice
released a report on the federal death penalty entitled Survey of the
Federal Death Penalty System (1988-2000). This report confirmed that
there are significant and unexplained racial and geographic disparities
in the federal government's decisions to seek the death penalty.
Are you troubled by the fact that about 75% of those against whom
the Department of Justice seeks the death penalty are people of color
or ethnic minorities, even though far less than 75% of the people who
commit federal capital crimes are people of color and ethnic
minorities?
Answer: Yes, it troubles me deeply.
Question 2: Wouldn't you agree that the fair, just and sure
administration of the federal death penalty requires that it be applied
completely free of racial bias?
Answer: Yes.
Question 3: Are you troubled by the fact that the same federal
crime is not prosecuted as a federal capital crime in different parts
of the country?
Answer: I fully agree that, as a general principle, federal law
should be applied uniformly across the country, and, if confirmed, will
work to help ensure that this is the case.
Question 4: Wouldn't you agree that the fair, just and sure
administration of the federal death penalty requires that it be applied
uniformly across the country, so that whether one lives or dies in the
federal system is not dependent on the district in which the
prosecution takes place?
Answer: As noted above, I fully agree that nationwide uniformity in
the application of federal law is important.
Question 5: Are you troubled by the fact that more than half the
federal capital prosecutions come from less than one-third of the
states, even though the incidence of federal capital crimes is fairly
evenly distributed across the entire country?
Answer: Yes, though I am unsure why this is the case. There are
many differences in different jurisdictions, but, as noted, I agree
that the uniform application of federal law is important.
Question 6: Attorney General Reno and Deputy Attorney General Eric
Holder have expressed concern about these disparities. Do you agree
with the following statement by Attorney General Reno:
Noting that the Department could not explain the disparities, she said,
``[a]n even broader analysis must therefore be undertaken to
determine if bias does in fact play any role in the federal
death penalty system.''
Answer: I fully agree that the Department of Justice should do
everything necessary to eliminate any racial bias from the federal
death penalty system, including undertaking all reasonable and
appropriate research necessary to understand the nature of the problem.
Question 7: Do you agree with Attorney General Reno's statement
that the death penalty should be imposed only after ``sound study and
thorough analysis'' ?
Answer: I fully agree that we should have a thorough study of the
system and that the death penalty should be imposed only upon
satisfaction of the full rigors of Due Process. Nor should race play
any role in determining whether someone is subject to the capital
punishment.
Question 8: On December 7, 2000, President Clinton granted a
reprieve for the first person scheduled to be executed by the federal
government--an Hispanic American man from Texas named Juan Raul Garza--
because of his concerns with racial and regional disparities. Do you
agree with President Clinton that there is a need for ``continuing
study'' of ``possible racial and regional bias'' because ``[i]n this
area there is no room for error'' ?
Answer: Yes.
Question 9: Do you agree with President Clinton that we must
thoroughly examine and address racial and geographic disparities in the
federal death penalty system before the United States ``goes forward
with an execution in a case that may implicate the very questions
raised by the Justice Department's continuing study'' ?
Answer: I fully agree that no individual should be subjected to
capital punishment where it is apparent that he or she was either
denied the full rigors of Due Process, or his or her conviction and/or
sentence was imposed on account of the individual's race. I further
agree that we should work together to ensure a uniform application of
all federal law, including the federal death penalty, across the
Nation.
Question 10: If you are confirmed as Attorney General, what will
you do about the racial and geographic disparities in the application
of the federal death penalty?
Answer: Like you, I strongly oppose allowing race to play any role
in the imposition of the death penalty--it is an unconstitutional act
that should never take place. If confirmed, I assure you that I will
thoroughly study this issue before determining any reasonable and
appropriate action that need be taken, and will then take all
reasonable and appropriate action to address the issue.
Question 11: Will you recommend to President Bush to do as
President Clinton did--not to allow federal executions until these
disparities are fully studied, discussed, and the federal death penalty
process subjected to necessary remedial action?
Answer: The President has asked that I keep my specific
recommendations to him private, and I plan to honor that request. I can
say that I personally do not believe that a moratorium on the
imposition of the death penalty at the federal level is currently
warranted. We have relatively few criminal defendants on death row in
the federal system and, in my view, it would be unfair, for example, to
interfere with the sentence that the judge and jury imposed upon
Timothy McVeigh while a study is ongoing. Of course, all federal
defendants are entitled to the full protections of Due Process and
applications for clemency.
federal death penalty: reliability and fairness of federal capital
prosecutions
Question 1: In their book, Actual Innocence, defense lawyers Barry
Scheck and Peter Neufeld outline a number of problems in our criminal
justice system that lead to unreliable results. Have you read the book
Actual Innocence?
Answer: I have not had the opportunity to do so, but would welcome
the chance if you recommend it.
Question 2 The following questions will address some of the
problems outlined in the book with a particular focus on the federal
criminal justice system. The first area is bargained-for testimony.
Federal prosecutors rely heavily on testimony from accomplices of
defendants charged with a crime that, if convicted, could result in a
death sentence. This testimony is often obtained in exchange for not
seeking the death penalty against the accomplices.
Do you agree that this practice of obtaining bargained-for
testimony can create a serious risk of false testimony?
Answer: Depending on the circumstances, there is certainly a risk
that testimony obtained in exchange for leniency can be unreliable.
Question 3: If there are no other safeguards to assure the
reliability of such testimony, do you think that federal prosecutors
should be discouraged, or even precluded, from using such testimony?
Answer: Although I recognize the serious nature of the problem that
you are raising, I imagine that one important safeguard is the ability
of defense counsel to cross-examine the witness. In any event, I would
be hesitant to make any broad generalizations outside to context of a
concrete case.
Question 4: Federal prosecutors are not required to provide
meaningful discovery far enough ahead of trial to permit the defense to
be prepared to use this information effectively. Would you support
legislative action to provide greater discovery of the government's
case further in advance of trial than is now required?
Answer: Not having had an opportunity to review the issue
thoroughly, I cannot comment on the specific legislative proposal that
you proffer. However, I fully believe that all individuals that appear
before our Nation's courts should be accorded the full protection of
Due Process, and that prosecutors should comport themselves in a way
that respects the constitutional rights of criminal defendants.
Question 5: Would you support changes in the United States
Attorneys' Manual to require an ``open file'' policy in relation to
discovery?
Answer: Although I am not familiar with the details of this
specific policy, I would be happy to work with you to help ensure that
all criminal defendants receive the full protection of Due Process.
Question 6: The FBI, in increasing isolation from the rest of the
nation's law enforcement agencies, refuses to make electronic
recordings of interrogations that produce confessions. Do you agree
that this practice makes subsequent scrutiny of the legality and
reliability of such interrogations more difficult?
Answer: I have not reviewed the details of this specific FBI
policy, and would need to consult with the professionals at the FBI
before making an assessment. I assure you that I will take all
reasonable steps to help ensure that all criminal defendants receive
the full protection of Due Process.
Question 7: Do you have any objection to changing this practice?
Answer: I have an open mind on this issue. Not yet having had the
opportunity to conduct a full and fair review of the policy, I cannot
currently make a reasonable assessment.
Question 8: Federal prosecutors rely heavily on predictions of
``future dangerousness'' to secure death sentences. Do you know that
such predictions are deemed unreliable and misleading by the American
Psychiatric Association and the American Psychological Association?
Answer: I am not familiar with these determinations by the American
Psychiatric Association and the American Psychological Association or
the standards or bases they used in their analysis.
Question 9: Do you have any concern about federal prosecutors'
reliance on such predictions?
Answer: I am concerned about all issues that affect the right of
criminal defendants to a full and fair trial. I would be happy to work
with you to help ensure that all criminal defendants receive the full
protection of Due Process.
Question 10: Is reliance on evidence that the leading mental health
professional associations in the country consider ``junk science'' a
practice that you believe to be defensible in federal prosecutions?
Answer: I fully agree that it is improper to rely on ``junk
science'' in criminal prosecutions.
Question 11: Scheck and Neufeld also highlight the appalling
problem of incompetent attorneys who represent people facing death-
eligible crimes. This is a particular problem at the state level but
the federal system is not totally immune. There are, unfortunately,
many cases across the country of people who were represented at trial
by drunk lawyers, lawyers who slept through the trial, lawyers who were
later suspended or disbarred, or lawyers who were paid far less than a
living wage. Do you agree that this is a problem?
Answer: I am troubled by the sorts of cases that you have
enumerated, and we need to work constructively to raise the bar on the
quality of legal service offered to criminal defendants. In particular,
I look forward to working constructively with you to formulate ideas to
raise the quality of legal defense.
Question 12: I have joined Senator Leahy as a co-sponsor of
legislation that would begin to address this serious problem, the
Innocence Protection Act. As Attorney General, would you support
incentive grants or conditioning federal funds to the States on the
States' ensuring certain minimum standards for competency of legal
counsel in death penalty cases?
Answer: Although I an unable to comment on specific legislation, I
agree that every defendant is entitled to his or her 6th
Amendment right to counsel and that if DNA is available and can prove a
person's guilt or innocence, it should be used.
Question 13: What do you think the federal role should be with
respect to the performance of the States in providing adequate legal
representation for capital defendants?
Answer: The federal courts play a critical role in helping ensure
that state criminal prosecutions, and especially death penalty
prosecutions, comport with the strictures of the federal Constitution.
religious liberty and school prayer
In June 2000, the United States Supreme Court ruled 6-3 in Doe vs.
Santa Fe Independent School District that a public prayer led by an
elected student chaplain at a football game between two public schools
violated the Establishment Clause of the United States Constitution.
The Court cited Lee v. Weisman, a 1992 opinion in which the Court
concluded, ``the Constitution guarantees that government may not coerce
anyone to support or participate in religion or its exercise, or
otherwise act in a way that establishes a state religion or religious
faith, or tends to do so.'' It's no secret that you believe these
decisions were mistaken. You have spoken out against the Supreme
Court's decisions on the separation of church and state on many
occasions. At a 1998 meeting of the Christian Coalition, you said: ``A
robed elite have taken the wall of separation built to protect the
church and made it a wall of religious oppression. They may try to take
prayer from our schools, but they can never steal God from our hearts.
I believe that we must continue across this land to fight for our God-
given right to acknowledge and affirm our Creator.''
Question 1: If you are confirmed, will the Department of Justice
challenge the activities of school districts that violate the Doe v.
Santa Fe and Lee v. Weisman decisions?
Answer: Both of these cases involved actions by private litigants,
rather than Justice Department actions. Nevertheless, if confirmed, I
will ensure that the Justice Department fully and fairly enforces the
constitutional rights of all citizens as those rights have been
interpreted by the Supreme Court.
Question 2: Will you instruct the Solicitor General to file amicus
briefs that follow an interpretation of the Constitution that ensures
religious liberty and the separation of church and state?
Answer: Yes.
campaign finance
appointment of special counsel in campaign finance cases
Question 1: You and others in Congress were highly critical of
former Attorney General Janet Reno for failing to seek an Independent
Counsel (or after the Independent Counsel statute expired, appoint a
special counsel) to investigate fundraising abuses by the President
Clinton's campaign in 1996. As you know, I felt that a special counsel
should have been appointed to investigate campaign finance abuses by
both sides in the 1996 campaign. Under what circumstances will you
appoint a special counsel to investigate allegations of wrongdoing by
the President or those involved in his campaign? Do you believe that
the public can have confidence in an investigation of the campaign
fundraising by the President or his associates run by the Justice
Department?
Answer: In light of the varied circumstances in which the need for
a special counsel could arise, it is difficult to state generally when
a special counsel should or should not be appointed. Moreover, because
each case must be reviewed on its particular facts, it would be
impossible to state before-the-fact whether a particular case would
warrant the appointment of a special counsel. Clearly, if a case arose
in which it would be difficult for any official within the Justice
Department to investigate the allegations of wrongdoing impartially and
fully, the possibility of appointing a special counsel clearly should
be considered. Furthermore, I believe that if the integrity of the
Justice Department is secure, then the public can have full confidence
in investigations conducted by the Justice Department.
soft money contributions
Question 2: As you know, one of the reasons I have worked so hard
for the McCain-Feingold campaign finance reform bill is that I am very
concerned about the appearance created when large soft money
contributions are given to the political parties. These very large
donations can appear like bribes or even extortion, and I believe we
must ban soft money in this Congress. Although you and I have disagreed
on what change in laws is necessary, would you agree that there is an
appearance problem that we should be concerned about here?
Answer: Yes.
Question 3: On July 27, 1999, you cosponsored S. 1172, a bill that
would have made it possible for Schering-Plough, a major pharmaceutical
company, to obtain a patent extension for its big selling allergy drug
Claritin. Some estimate that the value of the patent extension to
Schering-Plough would be over $9 billion. Just two months later, on
September 30, 1999, Schering-Plough contributed $50,000 to the non-
federal account of the Ashcroft Victory Fund. What was the Ashcroft
Victory Fund? What is your understanding of the arrangement that
allowed a fundraising committee associated with you to receive
contributions of this size? What was your role in obtaining this
contribution?
Answer: The Ashcroft Victory Fund was a joint fundraising committee
between the Ashcroft 2000 Committee and the National Republican
Senatorial Committee. The Committee operated under Federal Election
Commission guidelines allowing contributions of this size. Corporate
funds such as this were disbursed to the National Republican Senatorial
Committee.
campaign contributions and the microsoft case
Question 4: Another case that the current Department of Justice
brought was the antitrust suit against Microsoft. This case has
proceeded to a verdict at the District Court level and is now on
appeal. According to Common Cause, Microsoft and its executives gave
over $1.8 million in soft money to the parties last year, nearly a
million to the Republican party committees. As the suit intensified,
Microsoft's soft money contributions nearly doubled from the 1998
election cycle. Do you see an appearance problem here? How will you
assure the American people that your decision on the Department's
pursuit of this lawsuit is not influenced by Microsoft's campaign
contributions to your party?
Answer: President Bush is committed to an Administration that
adheres to the highest ethical standards. Towards that end, I will work
vigorously to ensure that every decision made by the Justice Department
is based on the law and on the facts. This fully applies to the
Microsoft case. On this score there can be no doubt: The Department of
Justice will operate free from any improper or untoward influence.
judicial nominations
Question 1: Do you believe that the Judiciary Committee should vote
on all nominees submitted by President Bush and that those nominees who
receive a favorable vote, or a tie vote under the agreement between
Senators Daschle and Lott, should be put on the Senate Executive
Calendar for consideration by the full Senate?
Answer: I believe that the Senate should give timely and fair
consideration to the President's judicial nominations.
Question 2 Assuming that there are no problems with completing FBI
background checks or other logistical impediments to a vote being held,
do you agree with the proposal made by President-Elect Bush during the
campaign that all nominees should receive a vote in the Senate within
60 days of their nominations?
Answer: During the campaign, in order to minimize delay and
division over presidential appointments, and attract good people to
public service, then-Governor Bush promised that if elected, he would
make prompt submissions of presidential nominees a top priority, and
challenge Congress to act within 60 days of the submission of nominees
for the new Administration--regardless of who was elected president in
2000. I stand by the President's commitment in this area.
Question 3: In 1985, the Ninth Circuit, sitting en banc, found that
the President has the constitutional power to make recess appointments
to the federal bench. Do you have any doubts about the
constitutionality of recess appointments to the federal bench?
Answer: Although the Constitution explicitly authorizes the
President to make recess appointments, I have not explored the
constitutional issues concerning such appointments in all
circumstances.
Question 4: During his two terms in office, President Clinton
nominated four different African Americans to seats on the Fourth
Circuit--James A. Beaty, Jr. or North Carolina, James A. Wynn, Jr. of
North Carolina, Andre M. Davis of Maryland, and Roger Gregory of
Virginia. Mr. Beaty was first nominated in December 1995, and his
nomination was resubmitted in 1997. Neither he nor any of the other
Fourth Circuit nominees who are African-American received a hearing in
the Senate Judiciary Committee. Do you have any comments on these
facts?
Answer: As mentioned above, during the campaign, President Bush
made clear his view that Congress should act within 60 days of the
submission of nominees for the new Administration--regardless of who
was elected president in 2000. I will fully support the President's
view on this issue.
Question 5: Do you see a problem with the circumstance that in the
year 2001, there is not a single African-American who has ever been
confirmed for a lifetime appointment to the Court of Appeals for the
Fourth Circuit?
Answer: Yes. I think it sends the wrong message, and believe we
should endeavor to appoint qualified minorities throughout the federal
bench. As Governor of Missouri, I was proud to appoint 8 of the 9
minority candidates submitted to me on the panels of candidates
proposed by the nonpartisan judicial selection commissions. As a
Senator, I was likewise proud to support 26 of 28 minority judicial
nominations to the federal bench. If confirmed as Attorney General, I
will continue to work to enhance diversity on the federal bench,
including on the Fourth Circuit Court of Appeals.
Question 6: President Clinton has re-nominated nine Circuit Judges,
including Judge Gregory, who were left hanging by the inaction of the
Senate in the last Congress. Now these nine men and women do not
constitute every nominee, nor even Circuit Court nominee on whom the
Senate failed to exercise its constitutional advice and consent
responsibility in the 106th Congress. I believe that President-elect
Bush has an opportunity to set a different tone here--to unite the
country and reach across party lines. He can put into practice the
political golden rule by not withdrawing these nominations and urging
this Committee and the Senate to act on them. If he wishes the Senate
to change course on the subject of judicial nominations from the
practice of the last three Congresses, he can set the proper example.
Will you advise President Bush against withdrawing these nominations
and to support them receiving a vote in the Senate in an effort to get
the judicial nominations practice in this Congress off on the right
foot?
Answer: As discussed above, the President, during the campaign,
made clear his commitment to an expeditious process of confirming
presidential nominees to the judiciary. With respect to the particular
nominees addressed in your question, I will need to review fully the
records of these nominees before advising the President on this matter.
I assure you that I will fully and fairly review the records of these
individuals before advising the President. Ultimately, however, the
appointment of a judicial nominee is the President's to make, with the
advice and consent of the Senate.
Responses of the Nominee to questions submitted by Senator Feinstein
Lead-in:During the past few years, the United States Senate has, in
my opinion, become a far more partisan, far more antagonistic place.
Despite all the talk of Senatorial courtesy during the nomination
process this year, the concept of Senatorial courtesy has, in many
respects, been lost during this Administration.
One result of this has been the numerous secret ``holds'' placed on
judicial nominations, some lasting for several years. This process is
very difficult on the lives of the nominee and his or her family. I
have argued many times that if there is a problem with a nominee,
someone should just come out and say it. That way, choices can be made
out in the open, with the benefit of knowing what one is up against.
Question: Have you ever placed a ``hold'' on a judicial nomination?
If so, please name those you put a ``hold'' on, and why.
Answer: In an effort to fulfill my responsibilities as a United
States Senator, I welcomed inquiries by the Majority Leader and
Majority Whip regarding the scheduling and floor consideration of items
on the legislative and executive calendars. Though I may have expressly
requested prior notification during my six years so as to participate
in debate or be present for a vote, I do not recall (except as noted in
these answers) which, if any, nominations were involved, or the
circumstances surrounding any such requests. In at least a couple of
cases, however, I expressed a desire to be notified if a nominee were
to come up for a vote so I could express my views on the floor.
Lead-in: At the hearings on Ronnie White's nomination in May 1998,
Judge White was introduced to the Senate Judiciary Committee by my
Republican colleague Senator Christopher Bond of Missouri, and then by
Missouri Congressman Bill Clay. After a very positive recommendation by
Senator Bond, Congressman Clay told us that:
``He [Senator Ashcroft] told me that he had appointed six of the seven
members to the Missouri Supreme Court. Ronnie White was the
only one he had not appointed. He said he had canvassed the
other six, the ones that he appointed, and they all spoke very
highly of Ronnie White and suggested that he would make an
outstanding Federal judge. So I think that is the kind of
person we need on the Federal bench.''
Question: You were present during this Committee hearing and you
heard Congressman Clay's report of your conversation, isn't that
correct?
Answer: I believe I was present, though I do not recall Congressman
Clay's comments.
When Congressman Clay reported this conversation with you to the Senate
Judiciary Committee, did you object to his description of your
conversation? Did you comment at all on the White nomination at
that time?
Answer: Courtesy is an important part of process in the Senate. I
do not recall doing or saying anything to endorse Congressman Clay's
statement. My position with respect to Judge White's nomination was
longstanding and clear. I raised questions, and submitted follow-up
questions, at his May 1998 hearing. I subsequently voted against his
nomination in Committee, identifying his dissents in death penalty
cases as the basis of my opposition. I again made my views clear in
January 1999 when he was re-nominated. Indeed, in February 1999, the
St. Louis Post-Dispatch reported my objections based on his death
penalty dissents. I opposed his nomination in Committee in July 1999.
And I spoke to this issue at the first opportunity after a vote was
scheduled in October 1999.
Lead-in: Nominations hearings are crucial components of any
Senator's performance of his or duty to advise and consent. Hearings
enable Senators to directly query nominees about their concerns--and
equally important--give nominees an opportunity to explain their
record.
In your October 4 and 5 floor statements, you strongly criticized
Justice White's record on the death penalty. However, you did not raise
the issue of the death penalty once during oral and written questions
of Justice White in his May, 14, 1998 hearing.
Question: Subsequent to the May 14, 1998 hearing and prior to your
October 5th speech, did you ever submit a written or oral request to
Mr. White for information about his decisions on the death penalty ?
Answer: Yes. My written questions inquired about a dissent he had
written in a death penalty case. In making my decision with respect to
Judge White, I thoroughly reviewed his record, which is available to
all members of the public. I believe that this review provided a fully
adequate basis upon which I could render a decision.
Question: If not, why did you not ask Justice White for more
information?
Answer: As discussed, Judge White's reported decisions provided
what I believed to be a fully adequate record upon which I could render
a decision in the matter.
Question: Did you feel satisfied that you had a fair assessment of
his record ?
Answer: Yes.
Lead-in: In your floor statements before the Senate on October 4
and October 5, 1999, you accused Justice White of being especially
liberal on the death penalty. You cited, two cases to support your
argument, Missouri v. Johnson and Missouri v. Kinder. In describing the
Kinder case, you said [Justice White], ``wrote a dissent saying that
the case was contaminated by a racial bias of the trial judge because
the trial judge had indicated that he opposed affirmative action and
had switched parties based on that.'' In fact, you claimed three
separate times that I know of--twice in floor statements and once in a
``Dear Colleague'' letter, that the only reason White dissented in the
Kinder case was the judge's stance on affirmative action.
Question: My first question is, did you read Ronnie White's dissent
in the Kinder case before you made your statement? Since?
Answer: I have reviewed the decisions rendered in the Kinder case.
Follow-up: The fact is that contrary to your statements, in his
Kinder dissent, Justice White specifically argued that the trial
judge's comments on affirmative action programs are ``irrelevant to the
issue of bias.'' In fact what Justice White objected to--and here I
quote directly from the dissent:
--`` the pernicious racial stereotype which is also expressed in the
press release. The slur is not ambiguous or complex (nor,
unfortunately, original): ``While minorities need to be
represented . . . I believe the time has come for us to place
much more emphasis and concern on the hard-working taxpayers in
this country. . .'' No honest reading of this sentence can
show that it says anything other than what it says: that
minorities are not hard working taxpayers.''
Again, in describing the Kinder case, you said [Justice White],
``wrote a dissent saying that the case was contaminated by a racial
bias of the trial judge because the trial judge had indicated that he
opposed affirmative action and had switched parties based on that.''
Question: Given Mr. White's explicit statement that he considered
the trial judge's views on affirmative action irrelevant to the issue
of bias, would describe your repeated representation of Ronnie White's
views as fair?
Answer: I would begin by noting that the majority of the court in
Kinder stated that `[i]n context, the statements merely express the
trial judge's satisfaction with affirmative action and government
entitlement programs.' (942 S.W.2d at 321) In the Kinder case, the
defendant did not allege any actual unfairness or error in any of the
trial judge's actions based on alleged bias, and an independent
reviewing court immediately after the trial, as well as the Missouri
Supreme Court, found no such unfairness or error based on bias. In
fact, Judge White did not identify any ruling or error influenced by
any alleged bias. In his sole dissent, Judge White stated that ``actual
fairness'' of a trial is ``not sufficient'' to satisfy the
Constitution. Judges undoubtedly should be held to a higher standard to
avoid the appearance of bias, and a good case can be made that the
trial judge in Kinder should have been censured. But I fully believe
that to craft a rule that voids a trial with no demonstrable error, and
with clear evidence of guilt of a brutal crime, as Judge White would
have in this case, is fundamentally wrong. This was the basis for my
position on Judge White with respect to the Kinder case. I continue to
believe that that criticism was fair.
Lead-in: You have consistently stated that the only possible
exceptions you would accept to an otherwise complete ban on abortion
would be the very life of the mother herself. Let me ask you now to
expand upon those statements.
Question: Do you believe that abortion is appropriate in cases
where the health of the mother is so endangered that she is likely to
face serious, permanent damage to her health?
Answer: My personal views on abortion are well known. But as I have
explained, I understand the difference between the role of a policy
advocate and the role of a law enforcer. As Attorney General, I will
fully and faithfully enforce all federal laws on this issue.
Question: Are there any circumstances, beyond the likelihood of the
actual death of the mother, that health should be a consideration in
allowing an abortion, in your opinion?
Answer: Please see the answer above.
Lead-in: If confirmed as Attorney General, you would likely have a
great deal of influence over who President Bush would nominate to all
levels of the federal judiciary, including the Supreme Court itself.
Question: If President Bush were to ask you for names of possible
Supreme Court nominees, would you consider suggesting a pro-choice
nominee, assuming that the nominee was otherwise qualified?
Answer: Yes. As President Bush has made clear, he will have no
litmus test for judicial nominations. As Attorney General, I will fully
support the President's standard, and will not employ any litmus tests
with respect to any role I might have in those nominations. I would
note that I supported 218 out of 230 Clinton judicial nominees, and I
assume some, if not most of them, were pro-choice.
Question: If the President nominated a pro-choice individual for a
vacancy on the Supreme Court, with or without consulting you, would you
support that nominee if otherwise qualified?
Answer: Yes. As President Bush has made clear, he will have no
litmus test for judicial nominations. As Attorney General, I will fully
support the President's standard, and will not employ any litmus tests
with respect to any role I might have in those nominations.
Lead-in: In 1998, you stated that ``[t]hroughout 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.''
In 1981 you testified similarly before the Senate Subcommittee on
Separation of Powers in support of ``A Bill to Provide that Human Life
Shall Be Deemed to Exist from Conception,'' as follows: ``[W]e are
urging the courts in any number of cases that they are considering to
decide that equal protection does in fact belong to unborn children.''
You further stated that ``we would add fetuses that they currently
characterize as nonpersons to the class of individuals that is
protected by the Constitution.''
And also on this point, you co-sponsored a resolution proposing a
constitutional amendment codifying your belief that an unborn child is
entitled to 14th Amendment protection?
Question: Is it your contention that a fetus is or should be
considered a ``person'' under the 14th Amendment?
Answer: Your summary of my record as an advocate appears to be fair
and accurate. Certainly a significant number of complicated issues are
associated with these proposals. The resolution of such issues is
reserved to the domain of policy-makers, not law enforcers. As I said
at the hearing, I understand the difference between the role of a
policy advocate and one who must enforce the law. I accept Roe and
Casey as the settled law of the land.
Question: What are the jurisprudential ramifications of this
position?
Answer: Please refer to the answer above.
Question: Are you aware of any Supreme Court ruling supporting your
interpretation of the Fourteenth Amendment with respect to fetuses?
Answer: Please refer to the answer above.
Question: Will you advocate adoption of your understanding of the
14th Amendment before the US Supreme Court?
Answer: Please refer to the answer above.
Question: Under your theory, must a legal hearing be held with
respect to the due process rights of the fetus before an abortion may
be performed?
Answer: Please refer to the answer above.
Question: What other due process rights does a fetus have in your
view?
Answer: Please refer to the answer above.
Question: Does the fetus have due process rights regarding familial
property distribution? Inheritance?
Answer: Please refer to the answer above.
Question: Do due process rights attach at the point of
fertilization of the egg?
Answer: Please refer to the answer above.
Question: Presumably then, any doctor who performs an abortion
under your interpretation of the Fourteenth Amendment commits murder,
is that correct?
Answer: Please refer to the answer above.
Question: Does that make the woman an accessory to murder?
Answer: Please refer to the answer above.
Lead-in: According to the Institute of Medicine, access to
contraceptive services is central to improving women's overall health
and reducing unintended pregnancy and, therefore, the need for
abortion. Family planning experts also have highlighted the crucial
role that contraceptives play in reducing the rate of abortion,
particularly for teenagers. One recent report indicated that publicly
funded contraceptive services annually prevent 1.3 million unintended
pregnancies, which would result in 533,800 births and 632,300
abortions.
Yet in 1986, as Governor of Missouri, you signed a bill that
stated, among other things, that life begins at ``conception,'' defined
to mean at fertilization. And in 1998, you sponsored a Constitutional
amendment to ban abortions that would also put the beginning of life at
fertilization.
Question: Am I correct in concluding that such a broad definition
of conception would have the effect of outlawing the most common forms
of contraception, including the birth control pill and the IUD?
Answer: Proposals I supported as a Governor or legislator have no
bearing on my role as Attorney General. As Attorney General, I would
have no authority to vote upon legislation or constitutional
amendments. As Attorney General, I will enforce the laws as passed by
Congress and signed by the President.
Lead-in: In January of 1999, a federal jury ordered two anti-
abortion groups and 12 individuals to pay over $107 million to Planned
Parenthood of Columbia/Willamette, the Portland Feminist Women's Health
Center, and several physicians, after finding that the ``Nuremberg
Files'' web site, a ``Deadly Dozen'' poster, and a ``wanted'' poster
constituted true threats not protected under the First Amendment.
The Nuremberg Files web site was designed to collect information to
use against abortion providers, clinic staff, law enforcement officers,
judges, and politicians in future trials for their ``crimes against
humanity.'' The site sought and listed personal information such as:
photos of the individuals, their families, their friends, their houses,
and their cars; driving records; license plate numbers; and names and
birth dates of the individuals and their family members.
The legend that accompanied this list of names contained simulated
body parts and dripping blood. This legend indicated the health status
of each name--Black font for ``working"; Greyed-out Name for
``wounded"; and Strikethrough for those on the lists who were dead.
Within hours of the assassination of Buffalo abortion provider, Dr.
Barnett Slepian, a line appeared through his name.
It is my understanding that this case is now on appeal to the U.S.
Court of Appeals for the Ninth Circuit and may be destined for review
by the U.S. Supreme Court.
Question: As Attorney General, would you concur that the activities
by the defendants in this case violate FACE, or would you use your
position to try to limit the scope of FACE?
Answer: If confirmed, I will fully enforce FACE. I believe that it
would be imprudent for me to comment on a pending case or make any
decision with respect to the case to which you refer, as well as any
other case, until fully reviewing the facts and law. I look forward to
the opportunity to conduct such a review of this and other cases.
Follow-up: The Department of Justice reviews all petitions for
certiorari to the Supreme Court and often recommends that the Supreme
Court either grants or denies certiorari in any particular case. When
the Solicitor General says that a decision warrants or does not warrant
attention, those views are given great consideration. So, indeed, DOJ
could well become involved in this case at the certiorari stage or by
filing an amicus brief.
Question: Should this case be appealed to the Supreme Court and you
are confirmed as Attorney General, what recommendation would you dir
Solicitor General to make regarding the outcome of the case?
Any decision that I make with respect to the case to which you
refer, as well as any other case, will be made only after fully
reviewing the facts and law applicable to that case. I look forward to
the opportunity to conduct such a review of this and other cases.
Question: In more general terms, would you continue to support the
use of Attorney General powers to protect providers and patients in
cases that come before the court?
Answer: If confirmed as Attorney General, I will use the powers of
the Attorney General to enforce the federal law protections of all
citizens fully and fairly, including those of providers and patients.
Lead-in: Let me now ask you a question about the FACE Act, and what
that Act covers.
Question: In Section 3(e) of the Act, the term ``interfere with''
means ``to restrict a person's freedom of movement.'' Would you support
any alteration of that definition?
Answer: It is Congress's prerogative to draft and enact
legislation, including the definition of terms appearing in
legislation. Should the Congress choose to do so with respect to the
FACE Act, I will fully and fairly enforce such alteration.
Question: Also in Section 3(e), ``intimidate'' means ``to place a
person in reasonable apprehension of bodily harm to him or herself or
another.'' Would you support any alteration in that definition?
Answer: It is Congress's prerogative to draft and enact
legislation, including the definition of terms appearing in
legislation. Should the Congress choose to do so with respect to the
FACE Act, I will fully and fairly enforce such alteration.
Question: In Section 3(c), FACE defines ``physical obstruction'' as
``rendering impassible ingress to or egress from a facility that
provides reproductive health services' or rendering passage to or from
such a facility' unreasonably difficult or hazardous.'' Would you
support any alteration in that definition?
Answer: It is Congress's prerogative to draft and enact
legislation, including the definition of terms appearing in
legislation. Should the Congress choose to do so with respect to the
FACE Act, I will fully and fairly enforce such alteration.
Question: Courts have interpreted FACE as not providing a civil
remedy to so-called ``sidewalk counselors.'' Do you disagree with that
interpretation? Do you think that the definition of reproductive health
services should be expanded so as to include ``sidewalk counselors?"
Answer: Just as it is Congress's prerogative to draft and enact
legislation, it is the role of the courts to interpret such
legislation. If confirmed as Attorney General, I will fully abide by
federal court decisions interpreting the FACE Act. Likewise, should
Congress choose to amend the act, I will fully and fairly enforce such
amendment.
Lead-in: As a Senator on this Committee, you voted against Senator
Schumer's amendment to the bankruptcy bill that would prevent persons
who commit acts of violence or harassment at reproductive health care
facilities from using bankruptcy proceedings to avoid paying the
damages, court fines, penalties, and legal fees levied against them as
a result of their illegal activities.
Question: I understand that the floor vote may have had something
to do with the Presidential election process, and may not have
reflected the true views of all who voted for it. So to make the record
clear, will you commit to us today that you will continue to support,
and indeed vote for, legislation or amendments to prevent perpetrators
of clinic violence and obstruction from using bankruptcy proceedings to
discharge their related debts?
Answer: My reasons for opposing the amendment in committee dealt
with the procedural and timing implications of the amendment to final
passage of the bankruptcy bill. I supported Senator Schumer's amendment
on the floor based on substantive policy considerations and supported
final passage of the bill that included the provision.
Lead-in: In the past, when a clinic has been under siege and local
law enforcement have been unwilling or unable to respond, the Task
Force Against Reproductive Health Care Providers has responded by using
federal law enforcement (i.e. U.S. Marshals) to protect clinics,
providers and patients.
Question: If local law enforcement does not respond in such a
situation, would you support using federal law enforcement to protect
the clinic, providers and patients?
Answer: If confirmed, I will use the powers of the Attorney
General's office to protect the federal rights of all Americans,
including the rights of clinics, providers, and patients.
Lead-in: It is my understanding that as of last count, there were
53 investigations open relating to FACE, including 6 arsons, 5
bombings, and 2 shootings, one of which was fatal.
Question: Would the Department of Justice under your authority
pursue these cases, and if so, how?
Answer: If confirmed, I will fully enforce the FACE Act, including
with respect to any pending investigations. I will be particularly
vigilant in pursuing crimes of violence, such as the ones that you
reference. I am not, however, familiar with the details of the cases
that you cite, and so cannot comment on them in particular.
Question: If, during your tenure as Attorney General, the amount
and severity of violence against health care providers and/or
facilities increases over current levels, what additional steps would
you take to enforce the laws that protect them?
Answer: I will fully enforce the FACE Act. If current enforcement
levels prove insufficient to the need, then I will not hesitate to
devote significant additional resources to enforcing FACE.
Lead-in: In several high-profile cases in recent memory, the
Justice Department has pursued civil rights cases against perpetrators
of hate crimes when the state laws in question have been inadequate to
address those crimes.
In fact, throughout our nation's history, some of the most
vulnerable victims have relied on the Department of Justice to
intervene and ensure that justice is done.
Question: As Attorney General, would you take an equally active
role in these types of cases?
Answer: If confirmed, I will fully and fairly enforce current
federal law to ensure that conduct which violates the civil rights laws
is fully prosecuted. I will also fully enforce any additional hate
crimes legislation that Congress chooses to enact.
Lead-in: In 1988, you declined to sign the Commission on Minority
Participation in Education and American Life, which concluded that the
nation was slipping it its efforts to achieve equal opportunity for
minorities. I am concerned about the impression left behind by your
refusal to sign the report. A reasonable person might presume that it
meant that you were satisfied with the progress that has been made on
these issues.
Question: Could you explain your reason for not signing the
Commission report? Specifically, what were your chief concerns about
the report?
Answer: A press release at the time expressed my concerns as
follows:
``Governor Ashcroft agreed to serve on the Commission on Minority
Participation in Education and American Life because of his deep
concern with achieving an environment of equal opportunity for all
Americans including total access and a comprehensive open door to
attaining educational excellence. He joins the other members of the
Commission in these purposes and goals, as well as their view that
education is key to the achievement of equal opportunity.
``He could not, however, fully subscribe to the Commission's final
report because of its inordinate emphasis on federal government
programs as compared to the crucial initiatives of individuals, states,
and localities. He further believes that the report's generalizations
about setbacks in progress are overly broad and counterproductive in
failing to recognize and examine important areas of progress
experienced during the last three to four years. Instead of documenting
and describing reasons behind the successes of many minority groups,
the report focuses almost exclusively on shortcomings and failures.
Further, the report fails to draw on research that distinguishes
between effective and ineffective programs in helping all Americans
achieve success. He especially objected to the precipitous process for
finalizing the report, which provided little or no opportunity for the
Commission's consideration of these and other concerns about its final
draft.'
Question: To what extent do you believe racial and gender
disparities persist in the workplace and in education?
Answer: I believe that discrimination is a real and persistent
problem, that there is still much work to be done, and that the
Department of Justice has a special charge and solemn responsibility to
enforce our nation's civil rights laws vigorously.
Question: What types of efforts or programs--whether at the
federal, state or private sector levels--would you find
constitutionally acceptable in ensuring equal opportunities for
minorities and women in employment and education?
Answer: Many efforts and programs can be undertaken in this regard
consistent with the Constitution. For example, I believe that the
affirmative access programs that President Bush has described are fully
consistent with the Constitution.
Lead-in: Senator Ashcroft, in a 1998 interview in Southern Partisan
magazine, you were asked to give your views about the International
Criminal Court, which has been established to punish war crimes like
genocide. You responded, and I quote:
``It's an outrage. It has the potential of subjecting American citizens
(at least for their actions abroad at home) to vague criminal
charges that would spring from so-called ``crimes against
humanity.'' Some of the things they're listing as crimes
against humanity are ``enforced pregnancies.'' There are lots
of people who wonder if the culture would decide not to make
abortion available would that mean that they were ``enforcing a
pregnancy''? For heaven's sake, that would make withholding of
an abortion a crime against humanity when many Americans
believe that providing an abortion is a crime against
humanity.''
Let me now read the International Criminal Court treaty's
definition for a forced pregnancy:
``Forced pregnancy means the unlawful confinement, of a woman, with the
intent of affecting the ethnic composition of any population or
carrying out other grave violations of international law. This
definition shall not in any way be interpreted as affecting
national laws relating to pregnancy.''
In other words, the ICC treaty provisions refers specifically to a
systematic policy of imprisoning women, raping them, and forcing them
to carry the fetus to term as part of a policy of ethnic cleansing and
to change the ethnicity of a population. Moreover, the provision
explicitly states that it does not apply to domestic pregnancy laws.
This does not seem all that vague to me, nor does it seem to
suggest the conclusions or scenario that you raised.
Question: How did you come up with your interpretation of this
provision?
Answer: I believe if my statement is reviewed carefully, it does
not state a position but asks a question about that provision. I do not
recall reviewing the specific provision you reference, but it appears
to answer the question I posed in my statement.
Question: Do you believe that enforced pregnancy, as defined in the
ICC Treaty, should not be a crime?
Answer: I believe that as defined in your question, such conduct
would constitute a heinous and horrible crime.
Lead-in: When the Senate reconvenes next week, I will be re-
introducing the ``Military Sniper Weapon Regulation Act.'' This
legislation would place 50 caliber sniper rifles under the ``National
Firearms Act,'' the same regulatory scheme already governing machine
guns and other powerful weaponry.
These powerful guns weigh as much as 28 pounds, and enable a single
shooter to destroy enemy jeeps, tanks, personnel carriers, bunkers,
fuel stations and even communication centers. The weapons are deadly
accurate up to 2,000 yards, and ``effective'' up to 7,500 yards--more
than four miles. In fact, many ranges used for target practice do not
even have enough safety features to accommodate these guns. They are
just too powerful.
Current law classifies 50 caliber guns as ``long guns,'' subject to
the least government regulation for any firearm. My bill would
reclassify 50 caliber guns under the National Firearms Act, which
imposes stricter standards on powerful and destructive weapons. For
instance, once this bill passes, 50 caliber guns must be purchased
through a licensed dealer, with an accompanying background check.
Prospective purchasers will need to provide fingerprints and fill out a
transfer application, and will undergo a delay while the FBI makes sure
that the applicant meets federal qualifications for obtaining the
firearm.
Question: Do you believe that regulating firearms under the
National Firearms Act is constitutional?
Answer: To my knowledge, there has never been a successful
challenge to the constitutionality of the National Firearms Act. As
with all federal legislation, I would approach it with a presumption of
constitutionality, and would defend it so long as a good faith and
conscientious basis existed for doing so.
Question: Would you support this bill?
Answer: I have not had an opportunity to review the bill, but look
forward to doing so in the near future and to working with you on this
subject.
Lead-in: You stated during these confirmation hearings that your
opposition to Jim Hormel stemmed from your review of the ``totality of
the record.'' Yet, it is my understanding that when repeatedly
contacted by Jim Hormel--both in writing and by phone calls--to discuss
his nomination, you did nothing to schedule a time to discuss any
concerns or reservations you may have had. You did not attend his
hearing before the Senate Foreign Relations Committee. In fact, the
only record that existed prior to your vote against Mr. Hormel was the
testimony presented during Mr. Hormel's confirmation hearing and
earlier testimony that was before the Senate prior to his unanimous
confirmation by the Senate to his position at the United Nations.
Question: Please specifically describe the record on which you
based your opposition.
Answer: Based on the totality of Mr. Hormel's record of advocacy, I
did not believe that he would effectively represent the United States
in Luxembourg, the most Roman Catholic country in all of Europe.
Follow-up: You stated that you ``had known Mr. Hormel for a long
time.'' Yet, according to Mr. Hormel, you and he have never had a
personal or professional relationship and Ambassador Hormel believes
with reasonable certainty that you and he have not seen each other or
spoken since 1967.
Question: Why wouldn't you meet with Jim Hormel again to discuss
his nomination as ambassador?
Answer: I opposed the confirmation of Ambassador Hormel in
Committee. That was the extent of the action I took concerning his
nomination. Given the pressing demands of fulfilling the
responsibilities of a U.S. Senator, there were other interests in the
Senate upon which I was primarily focused.
Question: During your time in the Senate, how many times did you
refuse a request to meet with an executive nominee?
Answer: During my tenure in the Senate, many individuals were
nominated to office by the President. I was able to meet with some, but
not all, of these individuals. I am unable to recall precisely how many
nominees I did or did not interview, but Ambassador Hormel is not the
only nominee for whom I could not accommodate a personal visit.
Follow-Up: Again, you said that your opposition to Jim Hormel was
based in your review of the ``totality'' of his record. Yet, three
months prior to your strong opposition to his appointment as Ambassador
to Luxembourg, you did not object to the unanimous consent of his
Senate approval as Alternate Representative of the U.S. delegation to
the UN General Assembly.
Question: In the intervening months, what was it about Ambassador
Hormel's record that changed your opinion that he was fit to serve the
United States?
Answer: Like many other Senators, the standard that I applied for
presidential nominees varied depending upon the office for which the
nominee was nominated. I thus believed that while Mr. Hormel might
serve adequately as an Alternate Delegate to the United Nations General
Assembly, he would not, based on the totality of his record, have been
an appropriate person to serve as Ambassador to Luxembourg.
Lead-in: In 1999, the INS took into its custody 4,607 children who
came to the U.S. unaccompanied by a parent or adult guardian. More than
2,000 of these children are held in jails and youth detention centers
across the country, even though the overwhelming majority of these
children (80 percent) have committed no crime. The INS continues to
pursue this policy remain in effect seven years after the INS agreed to
hold children in the ``least restrictive setting appropriate for the
minor's age and special needs.'' I have been, appalled, quite frankly,
by the way many unaccompanied alien children have been treated by the
Immigration and Naturalization Service. This treatment has included the
shackling and handcuffing of children who are no threat to themselves
or others, long periods of confinements in inappropriate penal
facilities, pressuring children to voluntarily depart the country
without their having access to counsel, and inadequate avenues for
humanitarian relief when that relief might be appropriate.
Question: Would you agree that Congress and the Administration
should take comprehensive steps to correct these problems?
Answer: The President has proposed comprehensive reform of the INS.
I fully support his position on this matter. With regard to the matters
enumerated in your question which would be under my authority as
Attorney General, I certainly will review them. I look forward to
working with you to correct any improper treatment which may take
place.
Follow-Up: Late in the last Congress, I introduced S. 3117, the
``Unaccompanied Alien Child Protection Act of 2000,'' which sought to
change the manner in which unaccompanied alien children are treated by
immigration authorities by addressing these issues, and more. I plan to
re-introduce this bill in this Congress. My legislation would create a
special Office of Children's Services within the Department of Justice,
and the Office would be responsible for coordinating and implementing
the law to ensure that unaccompanied alien children are treated
appropriately by our government.
Question: What are your views on the wisdom and morality of
confining children who have not committed any crimes in prison or
prison-like facilities?
Answer: I believe that children taken into custody by the federal
government, including unaccompanied alien children, should be treated
with the utmost care and compassion.
Question: This issue is an important priority to me, and I really
want to have your commitment to work closely with me in addressing the
treatment of children in our immigration system. Can I get your
support?
Answer: I pledge that if confirmed, I will work closely with you to
ensure that all children in our immigration system are treated with the
utmost care and compassion.
Lead-in: Millions of law-abiding citizens, residents, immigrants,
and businesses pay fees to the INS each year to have their applications
and petitions for immigration benefits adjudicated in a timely manner.
Unfortunately, our constituents increasingly have been faced with
extraordinary delays and incompetence. And this had had a dramatic
effects on their lives and the lives of the people or companies that
depend on them.
Last year, Congress enacted S. 2586, the ``Immigration Services and
Infrastructure Improvement Act of 2000,'' legislation which I
introduced in the Senate. This new law created an account within the
Immigration and Naturalization Service (INS) specifically devoted to
reducing the immigration backlogs, and improving the overall INS
process and systems used to adjudicate these important services. Under
the new law, funds in the account are to be available across fiscal
years, and they are to be used for such purposes as providing
additional personnel, fingerprinting equipment, improved records
management, and other necessary equipment and expenses. In addition to
creating the account and authorizing such sums as necessary to fund it,
my legislation requires an annual report to Congress on the top ten
areas that have the worst immigration backlogs. It also requires the
INS to explain why backlogs persist in these areas and what the agency
is doing to fix them. The INS must also report on what additional
resources are needed to meet Congress's mandate that backlogs be
eliminated and that processing times are reduced to an acceptable time
frame.
During his campaign, President-Elect Bush called for the
expenditure of $500 million over five years to reduce the immigration
backlog. This proposal was similar to my bill, which has now become
law. The President-Elect will have to submit his fiscal year 2002
budget to Congress in the coming weeks.
Question: If confirmed as Attorney General, will you work to
include in the President's budget additional funding for reducing the
backlog in immigration benefits adjudications?
Answer: If confirmed, I will work diligently to support the
President's agenda in this area.
Question: Can we count on your support for the provision of
directly appropriated funds for reducing the backlog in immigration
benefits adjudications, along the lines of my proposal and the
President-Elect's proposal, to supplement the funds that are derived
from the fee accounts?
Answer: As mentioned above, if confirmed, I will work diligently to
support the President's agenda in this area.
Question: Can we count on your support for insisting that
appropriated funds for backlog reduction be placed into the Immigration
Services Improvement and Infrastructure Account, as established by the
Act, rather than in integrate those funds within the general INS
accounts?
Answer: As mentioned above, if confirmed, I will work diligently to
support the President's agenda in this area.
Question: Even when Congress appropriates funds to the INS,
management problems within the agency have affected the efficient use
of these funds. What steps will you take to ensure that these funds are
used as intended and will result in the efficient and timely processing
of immigrant petitions and naturalization applications?
Answer: It is important that funds intended for a specific use be
devoted to that use. If confirmed as Attorney General, I will work to
ensure that appropriated funds are used as intended, and deployed to
promote efficient and timely processing of immigrant petitions and
naturalization applications. I will coordinate closely with all
responsible officials in the INS.
Follow-Up: The backlog reduction law requires that the INS make a
number of reports to Congress on its efforts to reduce the backlog in
immigration benefits adjudication. The first of these reports is due on
January 17, 2001. As you know from your service in the Senate, the INS
has not been especially timely over the years in submitting reports
that Congress has requested. As the author of this particular piece of
legislation, and as a senator representing a large constituency that
depends on the INS to perform its Service functions in a timely and
efficient manner, I am going to take a special interest in making sure
that the reports and goals required by this bill are adhered to.
Question: Will you designate someone on your staff to work with my
staff to ensure that these reports are done on a timely basis and that
the reduction in these intolerable backlogs are among the highest
priorities, not only of the INS, but of the Department of Justice,
itself?
Answer: I pledge to you that if confirmed, I will work closely with
you to help ensure that the INS fulfills its responsibilities under
applicable law, and, in particular, its obligation to file timely
reports pursuant to the backlog reduction law. I will make this a
priority in both the INS and the Department of Justice.
Lead-in: Both the General Accounting Office and the U.S. Commission
on Immigration Reform called for significant management reforms at the
INS. In 1991, the GAO issued an extensive report identifying severe
management problems across the agency. Among other things, the GAO
found INS:
Lacked clear priorities;
Lacked management control over regional commissioners;
Had poor internal communications and outdated policies;
Did not take workload into account when allocating resources'
which contributed to the high backlog of applications; and
Had unreliable financial information and thus inadequate
budget monitoring.
The U.S. Commission on Immigration Reform found that despite
increases in funding and authority, the current federal immigration
structure leads to ``mission overload,'' resulting in ineffective
management of the four core functions of our immigration system: border
and interior enforcement; enforcement of immigration-related employment
standards; adjudication of immigration and naturalization applications;
and consolidation of administrative appeals. According to the
Commission, ``mission overload'' results from the fact that the agency
charged with implementing our immigration laws have so many
responsibilities that they are unable to manage all of them
effectively. And, with an immigration landscape that is growing in
complexity and size, no one agency could have the capacity to
effectively manage every aspect of immigration policy imaginable. I am
a strong supporter of the reform bill proposed in the Senate in the
106th Congress, which would separate the Service into bureaus: one for
Enforcement and one for Service. An Associate Attorney General for
Immigration Affairs would oversee both bureaus. I would like to count
on your support for making this a priority for the Justice Department.
Question: If you are confirmed, what immediate reforms would you
make to the agency?
Answer: The President has proposed a comprehensive reform of the
Immigration and Naturalization Service to help change its character and
to make America more welcoming to new immigrants. Currently, for
example, the INS takes 3-5 years or more simply to process an
immigration application. There is no justification for processing to
take 3-5 years; an INS properly focused on service would move much
faster. The President believes every INS application should be fully
processed within 180 days of submission. To meet this 6-month standard,
and to introduce a fundamental shift in the approach of the INS, the
President will: (1) Support legislation to divide the INS into two
separate agencies: one to deal with the enforcement components of
border protection and interior enforcement, and another to deal with
the service components of naturalization. Both agencies will be headed
by an Associate Attorney General for Immigration Affairs, who will
supervise both functions, and make sure that the agencies are taking
consistent legal and policy approaches. (2) Support a comprehensive set
of civil-service reforms, ways to make government more responsive to
its customers. He will follow the same principles with the INS. In
particular, he will introduce performance incentives for employees to
process cases quickly, and make customer satisfaction a priority. (3)
Propose an additional $500 million over 5 years to fund new personnel
and increased employee incentives to provide quality service to all
legal immigrants. (4) Support changes in the INS policy so that spouses
and minor children of legal permanent residents are allowed to apply
for visitor visas while their immigration applications are pending. He
will reverse the presumption that such family members will violate
their terms of admission, and will encourage family reunification for
legal immigrants. If confirmed, I will fully support the President's
agenda in this area.
Question: If your approach would differ from the Senate bill,
please explain the reforms you would propose.
Answer: I believe that my answer to the preceding question outlines
the President's approach in this area, which I would fully support.
additional immigration questions:
Question 1: Worksite Enforcement. We can all agree that we have a
large number of unlawful migrants here , and they come because
employers offer them work opportunities. If you are interested in
controlling illegal immigration, what policies would you put in place
to enforce the immigration laws at the work place?
Answer: If confirmed, I would fully and fairly enforce all of the
laws relating to immigration--both legal and illegal. By enforcing such
laws vigorously, we can, I believe, both control illegal immigration
and promote the interests of those who are in this country lawfully.
Question 2: Alien Smuggling and Trafficking. I am very concerned
about the significant increase in organized trafficking. [GAO] As you
may know, Congress passed--What mechanisms will you put in place to
both deter traffickers and assist the victims of trafficking?
Answer: No human being should be forced to suffer the indignity of
being a victim of human trafficking. I will vigorously enforce all laws
enacted by Congress in this area to combat this abhorrent practice.
Responses of the Nominee to questions submitted by Senator Grassley
Question 1: Senator Ashcroft, can I count on you to vigorously
support and enforce the False Claims Act and its qui tam provisions?
Answer: If confirmed as Attorney General, I will fully enforce the
False Claims Act and its qui tam provisions. As you know, some have
questioned the constitutionality of the qui tam provisions. Questions
concerning the validity of laws should be answered only in the context
of a specific case or controversy raising the issue. While it would be
imprudent to make a legal determination on the question now, absent a
full and thorough review of the relevant law, my obligation as Attorney
General will be to defend the constitutionality of duly-enacted federal
law whenever a good faith and conscientious basis exists for doing so.
Question 2: Current Deputy Attorney General Eric Holder has issued
guidelines for the enforcement of the False Claims Act by Justice
Department attorneys. Will you continue these guidelines?
Answer: Though I have not yet had an opportunity to familiarize
myself with these guidelines in detail, I assure you that any action
that I take with respect to the guidelines will be done only after a
full and fair review in consultation with the Justice Department
experts in the area.
Question 3: There have been efforts by some trade groups whose
members have been sued under the False Claims Act to seek amendments
that would weaken the Act, such as removing minimum damages and
increasing the burden of proof on the government or on whistleblowers.
Can I count on you, while you are Attorney General, to vigorously
oppose all such efforts to weaken the Act?
Answer: Though I have not had an opportunity to review the False
Claims Act, or any proposed amendment thereto, in detail, I look
forward to working with you in the future to ensure that the False
Claims Act fulfills the purpose for which it exists.
Question 4: I believe that the Justice Department has an
accomplished team in the Civil Division that conducts and oversees
False Claim Act cases. There are also a good number of first-rate
attorneys in the U.S. Attorney's Offices that handle False Claims Act
cases. Will you maintain those resources?
Answer: Though I have not had an opportunity to review the U.S.
Attorney's Offices in this area, I have no intention to change the
priority currently given to enforcement of the False Claims Act. Any
decision made in this regard will be done only after a full and fair
review of the matter.
Question 5: It seems that the Justice Department declines to
participate in 75% to 80% of the cases brought to its attention by
whistleblowers. This suggests that the Department should increase the
number of attorneys assigned to False Claims Act matters. Would you
consider arranging for such an increase in the immediate future?
Answer: Though I have not had an opportunity to review this issue
in detail, if confirmed, I pledge that I will commit resources where
they are needed most. If, upon review, I determine that that area is
False Claims Act enforcement, I will not hesitate to allocate
additional resources in that direction.
Question 6: It appears to take the Justice Department a very long
time to investigate and decide to intervene in a False Claims Act case
initiated by a whistleblower. I understand the Civil Division has no
in-house investigators, but must rely entirely on investigators working
for other departments. Would you consider changing that situation by
establishing a cadre of in-house DOJ False Claims Act fraud
investigators?
Answer: Again, I have not reviewed this area in detail. I would
certainly be open to establishing in-house DOJ False Claims Act fraud
investigators if, upon a full and fair review, it were determined that
such a need existed.
Question 7: I see a need for closer cooperation between the
Department of Justice and the qui tam bar, the lawyers who represent
the whistleblowers (technically called ``relators''). There are some
problems: 1) even when the Department of Justice joins a case, the
Department too often seems to hold whistleblowers and their lawyers at
arms length, failing to use them as a resource to help develop the
case, or even failing to keep them informed; and 2) the Department of
Justice sometimes views whistleblowers and their lawyers as
adversaries, and puts inordinate resources into efforts to eliminate or
minimize their bounty. Senator Ashcroft, I would like the Department of
Justice under your leadership to embrace the qui tam whistleblowers and
their attorneys. I would also like to see a more cooperative
relationship than now exists. Do you believe that the network of
whistleblowers could be a valuable resource in combating fraud against
the federal treasury? Would you agree to foster a closer relationship
between the Justice Department and the qui tam plaintiffs and their
attorneys?
Answer: I fully agree that qui tam whistleblowers are a valuable
resource in combating fraud against the federal treasury, and that a
good relationship between relators and the Justice Department is
important. I further agree that if confirmed, I will work to foster
that relationship as appropriate.
Question 8: In the past, there have been some in the Department of
Justice who have sought to undermine the constitutional legitimacy of
the False Claims Act. Do you believe that the qui tam provisions of the
False Claims Act are constitutional in light of the Supreme Court
decision in Vermont Agency of Natural Resources v. U.S. ex rel.
Stevens? Will you use your leadership to assure that the Justice
Department's resources are not wasted on efforts to undermine the
constitutional legitimacy of the False Claims Act, especially after the
recent Vermont Agency of Natural Resources case?
Answer: Questions concerning the validity of laws should be
answered only in the context of a specific case or controversy raising
the issue. While it would be imprudent to make a legal determination on
the question now, absent a full and thorough review of the relevant
law, my obligation as Attorney General will be to defend the
constitutionality of duly-enacted federal law whenever a good faith and
conscientious basis exists for doing so.
Question 9: Senator Ashcroft, will your staff conduct a review of
the policies and procedures currently in place at the Antitrust
Division to ensure that they are up to date and consistent with other
agency policies in regard to antitrust matters? In addition, will you
ensure that the Antitrust Division's policies and procedures are being
followed? The General Accounting Office soon will be issuing a report
that will find that the Antitrust Division has not strictly complied
with its procedures for handling public complaints and inquiries. It is
important that the Antitrust Division follow the policies and
procedures it sets, not only for the proper functioning of the
Division, but also to provide assurance to the public that the Division
is accountable for its actions and decisions.
Answer: Yes. I look forward to working with you on these matters.
Responses of the Nominee to questions submitted by Senator Kennedy
school desegregation
Question (1): Several times during your testimony, you made very
clear and direct statements that the State of Missouri was not found
guilty of any wrongdoing in the St. Louis school desegregation cases
and therefore should not be held liable. You also stated that the state
was not a party to the litigation. For example, in response to Senator
Leahy's questions, you said:
``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's what I opposed.''
How can you justify making this statement, while under oath, when
there were two separate 8th Circuit decisions and numerous district
court decisions directly finding that the state was responsible for the
unconstitutional discrimination, had an affirmative duty under Brown v.
Board of Education to end segregation and was liable for the costs of
desegregation?
overview
Answer: Since my selection by then-President-elect Bush to be his
nominee for US Attorney General, questions have been raised concerning
the role I played as Attorney General during desegregation cases in St.
Louis and Kansas City, Missouri. It is my view that my role and
position have been mischaracterized or misinterpreted throughout this
process, including during the hearing before the Senate Committee on
the Judiciary. I believe these mischaracterizations arose from a
fundamental misunderstanding of the legal differences between an
intradistrict and interdistrict remedy for school desegregation.
Indeed, perhaps I was not as clear as I should have been in terms of
detailing the matters that affected the conduct of these cases, as well
as my role in the process of representing my client, the State of
Missouri.
As I trust I can now make clear, the legal distinction between a
remedy to remove the vestiges of segregation in a single school
district (an intradistrict remedy) and a remedy that assumes that the
State of Missouri was liable for segregation among a number of school
districts (an interdistrict remedy) depends on separate findings of
liability. Although the State of Missouri was found liable for a role
in segregation within the City of St. Louis School District, and, in a
separate case, in the City of Kansas City School District, I testified
correctly that the State of Missouri had never been found liable for
interdistrict liability in the City of St. Louis Metropolitan Area.
Indeed, the only case in which the State of Missouri had a hearing and
an opportunity to defend a claim that it was liable for participating
in a system of interdistrict segregation occurred in the Kansas City
case. There, the court found that the State of Missouri had not
violated the Constitution on an interdistrict basis in the Kansas City
Metropolitan Area.
My actions in these cases make one point very clear: I never
opposed desegregation. In fact, I firmly believe that any system that
discriminates against persons on the basis of race is abhorrent to the
Constitution. As Attorney General of Missouri, I did oppose the
requirements of the federal court in St. Louis that the State of
Missouri fund an interdistrict remedy without first finding that the
State of Missouri violated the law on an interdistrict basis. I did not
appeal and did not object to a finding that the State of Missouri was
guilty of an intradistrict violation in the City of St. Louis School
District.
In Kansas City, I opposed the methods chosen by the trial court to
remedy the intradistrict liability found in that case. I believed then,
and I believe now, that the focus of any remedy following a finding of
segregation must be primarily on educating children. The Kansas City
remedy had an obvious, different focus, to which I objected on both
sound legal and policy grounds. There is now universal agreement that
the judge failed the children of Kansas City by ignoring my objections
to his plan and placing his emphasis on everything but the children and
their families.
details of the st. louis litigation
The original plaintiffs sued the St. Louis School Board on February
28, 1972, claiming that the St. Louis School Board had adopted policies
fostering segregation. The plaintiffs did not name the State of
Missouri as a defendant in the case. On December 24, 1975, the
plaintiffs and the St. Louis School Board announced an agreement to
settle the case and asked the District Court to approve a consent
decree. The NAACP and other parties moved to intervene in the action to
oppose the settlement. The District Court did not allow the
intervention. On appeal, the U.S. Court of Appeals for the Eighth
Circuit reversed the District Court finding and ordered intervention by
these new plaintiffs and a hearing to consider these new plaintiffs'
claims before ruling on the consent decree. When the new plaintiffs'
disagreements with the proposed consent decree made it plain that
consensus could not be reached, the District Court ordered a liability
hearing and added the State of Missouri as a defendant in the case for
the first time.
After a lengthy liability hearing, the District Court found that
the ``State of Missouri effectively removed all barriers at the state
level to the desegregation of schools. . . '' Liddell v. Board of
Education of the City of St. Louis, 469 F.Supp. 1304, 1314 (E.D. Mo.
1979). On appeal, the Eighth Circuit reversed, and noted testimony that
``an interdistrict remedy funded by the State of Missouri would have
the best chance of permanently integrating the schools of the
metropolitan St. Louis area.'' It should be noted that at this point,
although the Eighth Circuit was suggesting an interdistrict remedy, the
suburban school districts were not defendants in the case. The Eighth
Circuit also established guidelines for the District Court on remand,
including suggestions for a comprehensive program of exchanging
students between the City and suburban districts. Adams v. U.S., 620
F.2d 1277 (8th Cir. 1980). As Attorney General, I did not ask the
Supreme Court to review this decision, believing on sound legal grounds
that no interdistrict remedy could be imposed without a finding of
interdistrict liability.
On remand, the District court ordered a comprehensive plan with
both intradistrict and interdistrict relief. Paragraph 12(c) required
mandatory interdistrict busing. The State was required to pay 50% of
the costs of the interdistrict plan as a remedy for an intradistrict
violation. It is important to note that although the District Court
found that the State was a ``primary constitutional wrongdoer'' as it
related to the intra district violations, it did not find any State
liability for the interdistrict violations.
I appealed the case on behalf of the State of Missouri--eight years
after the original case was filed--on three grounds: (1) The
interdistrict remedy exceeded the scope of the State's liability; (2)
No liability was found against the suburban school districts because
they were not parties to the case; and (3) No interdistrict violation
was determined by the Court. The Eighth Circuit affirmed the District
Court's decision, in party by characterizing Paragraph 12(c)--the
mandatory interdistrict busing requirement- as a mere suggestion.
On remand, in January 1981, the suburban school districts were
added as defendants. The District Court realigned the St. Louis School
Board as a plaintiff, and scheduled a trial for March 1983. In August
1982--six months before the trial date--the District Court informed the
parties that if the suburban districts were found liable, the court
would order mandatory busing and consolidate City District with
suburban school districts. The District Court's threat, made before a
hearing and without the benefit of evidence, had its intended effect:
The suburban districts approached the St. Louis School Board and,
without consultation with my client, the State of Missouri, agreed to
settle the case on the condition that the State of Missouri fund the
bulk of interdistrict busing, magnet schools, and St. Louis School
District improvements to which these parties agreed without the State's
approval.
The State of Missouri objected on the basis that there had been no
trial to determine interdistrict liability. The basis for the objection
was that the State could not impose a settlement on a non-consenting
defendant. In addition, sound legal principles announced by the United
States Supreme Court in Milliken I dictated that a finding of
interdistrict liability must exist before a court could impose an
interdistrict remedy. Further, Milliken II required a narrowly tailored
interdistrict remedy to fit the nature and extent of interdistrict
liability. Such narrow tailoring would be difficult in the absence of a
trial to determine the nature and extent of interdistrict liability.
The State of Missouri submitted its own plan to resolve the case,
focusing on remedying the only liability that a court had found--the
vestiges of segregation in the St. Louis School District. The District
Court rejected Missouri's plan to remedy the only liability that had
been found--namely, the intradistrict violation.
Despite the State of Missouri's legal argument that the consent
decree conflicted with Supreme Court precedent, the District Court
approved the consent decree imposing an interdistrict remedy, even in
the absence of a finding of interdistrict liability. The State of
Missouri appealed the order. On appeal, the Eighth Circuit affirmed.
The U.S. Supreme Court did not accept certiorari.
In sum, I never advised my client to ignore valid federal orders. I
was never found in contempt of any court. I always directed that the
State of Missouri participate in good faith in annual budget
negotiations to fund the plan, and subsequent appeals were designed
only to reach a resolution of matters that our negotiations could not
resolve.
details of the kansas city litigation
In the case involving Kansas City, the suit was filed against both
the City and suburban districts. After trial, the District Court ruled
that there was no interdistrict violation of the law and dismissed the
Kansas City suburban school districts.
The District Court did find that the State and the Kansas City
School District were guilty of intradistrict violations.
Despite my disagreement with the methods chosen by the District
Court to remedy the vestiges of segregation in the Kansas City School
District, I cooperated with final orders of the courts without fail. I
was publicly attacked by the then-treasurer of the State of Missouri, a
Democrat, as being too willing to spend the state's funds on federal
court orders. Indeed, when the treasurer, considered withholding
payments ordered by the District Court, I worked with that official to
arrange a system that would alleviate his concerns and assure that the
State of Missouri would obey the court's desegregation orders.
Question (2): You also implied that you did not resist or subvert
any court orders. In response to one of my questions, you testified:
``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 was settled and spoken that the law
should be obeyed.''
In 1980, the district court ordered you to submit a plan for
desegregation within 60 days. Did you comply with that order and submit
a plan within 60 days? After the 60 days, did you eventually submit a
desegregation plan for the court's consideration? If so, please attach
a copy of that plan. Did the court accept that proposal as a good faith
attempt to propose a solution to desegregation of the St. Louis
schools?
Answer: Please see answer above.
Question (3): Do you believe that state and local governments that
actively maintained a segregated school system in the past have an
affirmative duty to actively desegregate the school system? In your
view, is it sufficient for a government that has maintained segregated
schools to simply repeal the laws which required segregation? If not,
what additional steps must be taken?
Answer: Absolutely. I strongly oppose segregation. I believe it is
wrong and it is unconstitutional. I support integration, and believe
that we should take active steps to tear down barriers to integration
and to extend full opportunity to all children.
Question (4): Do you view Section 5 of the Voting Rights Act as an
important tool through which the Justice Department can continue
protecting the voting rights of minority citizens in this country?
Answer: Yes.
Question (5): Do you see Section 2 of the Voting Rights Act as an
important tool in the battle to protect equal voting rights in this
country?
Answer: Yes.
Question (6): As Attorney General, will you continue to enforce the
``discriminatory effects'' standard under the Voting Rights Act?
Answer: I will follow the law on voting rights, as established by
the Supreme Court. Voting is a fundamental civil right. If fortunate
enough to be confirmed as Attorney General, I will work to aggressively
and vigilantly enforce federal voting rights laws. It will be a top
priority of a Bush Department of Justice, part of what I would hope
would be its legacy.
Question (7): Are you willing to vigorously enforce Section 203 of
the Voting Rights Act which requires the ballots and other election-
related materials be translated in certain areas of the country where a
number of citizens are limited English proficient?
Answer: I will follow the law on voting rights, and will vigorously
enforce the Voting Rights Act in its entirety.
Question (8): As Attorney General, how will you decide when to ask
the Supreme Court to overrule a precedent with which you disagree, and
when to argue for the preservation of that precedent?
Answer: As Attorney General, I do not believe it would be
appropriate to seek the reversal of any Supreme Court decisions in a
vacuum. As cases arise, I will, if confirmed, thoroughly review the law
and facts of each and every one, and determine what positions of
advocacy are consistent with the law and in the best interests of the
United States. My approach will take into account the important role
that stare decisis plays in the rule of law and will be law-oriented,
and not results-oriented.
Question (9): In 1990, as Governor of Missouri, you vetoed a bill
that would have provided up to eight weeks of unpaid maternity leave
for mothers of new babies or adopted children under the age of three
who worked for employers of 50 or more employees. [SB 542, vetoed July
13, 1990.] In your veto message, you said the bill would ``put Missouri
employers at a competitive disadvantage with similar businesses'' in
states that did not have similar legal protections, and suggested you
might support such a bill if it ``originate[d] from the federal
government.'' Today, of course, there is such a bill, the federal
Family and Medical Leave Act of 1993 (FMLA)--a law that was passed with
large bipartisan majorities in both the Senate and the House of
Representatives.
The Justice Department has participated in litigation involving
enforcement of the FMLA by state employees, arguing that Congress was
well within its authority under the 14th Amendment in authorizing state
employees to sue to enforce their rights under the federal law. If you
are confirmed as Attorney General, will you continue to argue in the
courts that state employees can sue to enforce the federal Family and
Medical Leave Act?
Answer: I do not believe it would be appropriate for me to comment
on pending litigation, but my approach to the Family and Medical Leave
Act, as to all other statutes passed by Congress, will be to defend the
Act so long as a good-faith and conscientious basis exists for doing
so.
Question (10): During your testimony before the Senate Judiciary
Committee, you said you do not believe the Supreme Court is prepared to
overturn Roe v. Wade. If the composition of the Supreme Court changes
during the next four years, would you support efforts to ask the
Supreme Court to reconsider Roe v. Wade?
Answer: As I said at the hearing, I accept Roe and Casey as the
settled law of the land. I don't think it's the President's agenda, nor
would it be my agenda, to seek an opportunity to overturn Roe or Casey.
Question (11): During your testimony, you said, ``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.'' You went
on to say, ``Now, you've 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.'' (emphasis added)
In your opinion, beyond the issue of partial-birth abortion,
what specific issues remain undefined or unrefined under Roe v.
Wade and Planned Parenthood v. Casey?
Answer: The President has said that he will provide leadership to
take positive, practical steps to reduce the number of abortions,
including ending partial-birth abortions, helping women in crisis
through maternity group homes, encouraging adoption, promoting
abstinence education, and passing laws requiring parental notification
and waiting periods. If the Congress passes legislation along these
lines, it will be my obligation as Attorney General to defend that
legislation, so long as a good-faith and conscientious basis exists for
doing so. The case law in this area, as in every, develops on a case-
by-case basis, and I cannot anticipate every question that could arise
concerning the scope and reach of the governing decisions. However, I
can assure you that to the extent the questions arise in the context of
legislation passed by this Congress I will defend the constitutionality
of the legislation, so long as a good-faith and conscientious basis
exists for doing so
Most legislation regulating abortion includes an exception for
cases in which a woman's health may be jeopardized. In your
opinion, under existing precedent, what limitations may be
placed on health exceptions?
Answer: The appropriate exceptions for partial-birth abortion
legislation are a matter for the legislature to decide, consistent with
Supreme Court precedent. If the Congress passes legislation banning
partial-birth abortion, it will be my obligation as Attorney General to
defend that legislation, so long as a good-faith and conscientious
basis exists for doing so.
While serving as Governor of Missouri, you signed an abortion
statute into law, and it became effective in 1986. The statute
was challenged, and the Supreme Court accepted the case for
review (Webster v. Reproductive Health Services, 492 U.S. 490
(1989)). When briefing the Court, the state of Missouri argued
that Roe v. Wade should be overturned. The State asserted
``that the values implicit in the Constitution do not compel
recognition of abortion liberty as fundamental.'' Would you
explain how that argument ``defined'' or ``refined'' the Roe v.
Wade decision?
Answer: As Governor, I was not the primary draftsman of the state's
appellate brief in that case. I am, however, proud of my leadership in
enacting that legislation, much of which the Supreme Court explicitly
found to be fully consistent with Roe. As Attorney General, my role
will not be to enact legislation or sign it into law, but rather to
defend legislation that the Congress chooses to enact.
Question (12): In recent years, numerous lawsuits have been filed
in federal courts challenging whether colleges and universities can use
race as one among many factors in their admissions policies or
scholarship decisions. If confirmed as Attorney General, you will have
significant influence over the Bush Administration's legal position in
cases like these.
In a case that has received significant publicity, The University
of Michigan is currently defending both its undergraduate and law
school admissions policies against challenges that they violate the
constitution because race is one among many factors considered in
admitting students.
At issue in the Michigan cases is whether diversity is a compelling
governmental interest in the higher education context. The Department
of Justice under the Clinton Administration filed an amicus brief in
the case urging the district court: ``in considering the motions for
summary judgment, to find that the enrollment of a diverse student body
is a compelling interest that may justify consideration of race as one
of many factors in admissions.''
In December of 2000, in the undergraduate suit, federal district
Judge Patrick Duggan, appointed by President Reagan, ruled for the
University on summary judgment, concluding that:
``a racially and ethnically diverse student body produces
significanteducational benefits such that diversity, in the context of
higher education, constitutes a compelling governmental interest under
strict scrutiny.''Do you agree with legal position taken by the
Department of Justice in an amicus brief in the Michigan case? Please
explain your answer.
Answer: If confirmed as Attorney General, I will firmly oppose
racial discrimination in all its forms. It would, however, be imprudent
of me to comment on the particulars of the Michigan case without first
conducting a full and fair review of the facts and law surrounding that
case. If confirmed, I pledge that no decision will be made absent such
a thorough review.
Question: Do you agree with the decision reached on summary
judgment by the district court? Please explain your answer.
Answer: If confirmed as Attorney General, I will firmly oppose
racial discrimination in all its forms. It would, however, be imprudent
of me to comment on the particulars of the Michigan case without first
conducting a full and fair review of the facts and law surrounding that
case. If confirmed, I pledge that no decision will be made absent such
a thorough review.
Question: If confirmed, would you direct the Department of Justice
on appeal to maintain its position or switch sides in the case and
argue that, as a matter of law, diversity is not a compelling interest
that may justify the consideration of race as one of many factors in
admissions? Please explain your answer.
Answer: If confirmed as Attorney General, I will firmly oppose
racial discrimination in all its forms. It would, however, be imprudent
of me to comment on the particulars of the Michigan case without first
conducting a full and fair review of the facts and law surrounding that
case. If confirmed, I pledge that no decision will be made absent such
a thorough review.
Question (13): As you know, the Department of Transportation has a
number of very successful programs that give qualified minority-owned
and women-owned small businesses a fair chance to compete for contracts
on federally-funded highway projects.
In September 1997, as Chairman of the Subcommittee on the
Constitution, Federalism, and Property Rights, you held a hearing
entitled: ``Unconstitutional Set-Asides: ISTEA's Race-Based Set-Asides
After Adarand.'' The title of the hearing clearly demonstrated your
hostility to these programs. In your opening remarks, you stated: (1)
``. . . it is obvious that ISTEA uses racial classifications in an
impermissible way''; (2) ``. . . the ISTEA set-asides strike me as
an easy case. Their unconstitutionality appears plain . . .''; and
(3) ``The oath we take to uphold the Constitution gives us an
obligation to vote against unconstitutional enactments.''
Despite your strong opposition to these equal opportunity programs
in Committee and in the full Senate, a majority of the Senate voted in
March 1998 to reauthorize them. And several months ago, a unanimous
panel of the 10 th Circuit Court of Appeals ruled that the
exact same programs you had called an ``easy case'' and criticized as
``unconstitutional'' were, in fact, constitutional. The Court found
specifically that: (1) ``Congress has a compelling interest in
eradicating the economic roots of racial discrimination in highway
transportation programs funded by federal monies''; and (2) ``[W]e
conclude that the . . . relevant programs . . . meet the
requirements of narrow tailoring.'' (228 F.3d 1147)
Do you believe that the 10 th Circuit's decision was
wrong? Please explain your answer.
Answer: It would be inappropriate for me to comment on pending
litigation, although I would note that it is my understanding is that
the 10 th Circuit reversed the District Court's grant of
summary judgment and remanded for further proceedings, rather than
finally deciding that the challenged program was, in fact,
constitutional. As a general matter, it is likely that some federal
race-conscious programs are not constitutional under Adarand. Indeed,
my recollection is that even Mr. Lee identified one such program. That
being said, it is the longstanding policy of the Department of Justice
to defend any federal law for which a reasonable and conscientious
defense can be raised. If confirmed, I will enforce this policy in the
area of racial set-asides, as in all other areas.
Question: A petition for certiorari has been filed. If you already
have concluded that the ISTEA programs are unconstitutional, will you
refuse to defend their constitutionality if you are confirmed as
Attorney General? Please explain your answer.
Answer: It would be inappropriate for me to comment on pending
litigation. As a general matter, it is likely that some federal race-
conscious programs are not constitutional under Adarand. Indeed, my
recollection is that even Mr. Lee identified one such program. That
being said, it is the longstanding policy of the Department of Justice
to defend any federal law for which a reasonable and conscientious
defense can be raised. If confirmed, I will enforce this policy in the
area of racial set-asides, as in all other areas.
Question (14): When James Hormel was nominated to be Ambassador to
Luxembourg you had not had a conversation with him in over 30 years.
Moreover, you did not attend his confirmation hearing, nor did you ask
him any written questions. You also refused his request to meet in
person. Yet, when Senator Leahy asked you to explain the reason(s) for
your opposition to the nomination, you repeatedly stated that you based
your decision on the ``totality of the record.'' Can you explain in
detail what specific facts and circumstances comprised the ``totality
of the record''? If Mr. Hormel's sexual orientation was not one of
these facts and circumstances, then why did you fail to afford him an
opportunity to respond to your concerns regarding his nomination?
Answer: Based on the totality of Mr. Hormel's record of advocacy, I
did not believe he would effectively represent the United States in
Luxembourg, the most Roman Catholic country in all of Europe. I opposed
the confirmation of Ambassador Hormel in committee. That was the extent
of the action I took concerning his nomination. Given the pressing
demands of fulfilling the responsibilities of a U.S. Senator, there
were other interests in the Senate upon which I was primarily focused.
Question (15): What was the total number of interim judicial
appointment you made as Governor of Missouri? What number of these
interim appointments were minorities? What number of these interim
appointments were women?
There were 70 panels of 3 individuals submitted by the appropriate
commission for appellate and trial court vacancies presented to me as
Governor under Missouri's nonpartisan court plan. There was only one
African American candidate who was not then or later appointed by me to
a current or subsequent judgeship. In effect, 8 out of 9 available
minority candidates were appointed from these panels, including the
first African American on the Missouri Court of Appeals and the first
African American woman on the St. Louis County Circuit Court.
For counties outside of the nonpartisan court plan, 21 judges were
appointed to vacancies until the next election, none of whom was
African-American. However, our research has found no minority members
of the Missouri Bar who expressed an interest in or were available (by
virtue of residency) for any of these vacancies for these out-state
judgeships which must stand for election every 4 years for an Associate
Circuit Judge, and 6 years for a Circuit Judge.
Thirteen female judges were appointed to judicial vacancies in both
the nonpartisan court plan and out-state areas, including the first
female on the Missouri Supreme Court.
ins restructuring
Question (16): As Attorney General, you will have jurisdiction over
the Immigration and Naturalization Service, an agency plagued with many
problems and in need of reform. President Bush has stated that he
supports a comprehensive reform of the INS, similar to legislation
Senator Spencer Abraham and I introduced last Congress. This plan would
separate the enforcement and service functions of the INS, but keep
them under one agency headed by an Associate Attorney General.
Maintaining a strong central authority ensures a uniform and coherent
immigration policy, resulting in both strong and fair enforcement of
our immigration laws, and efficient delivery of immigration services.
As Attorney General, how do you envision balancing the INS's often
conflicting missions of enforcement and services? What measures would
you propose to ensure adequate funding for the service functions?
Answer: If I am fortunate enough to be confirmed as Attorney
General, I will strongly support the President's proposal to reform the
INS comprehensively and divide it into separate service and enforcement
agencies. As the President has said, legal immigrants should be
welcomed with respect and open arms, and service to legal immigrants
should not be delivered with suspicion or hostility. I recognize the
important leadership you and Senator Abraham have taken in this regard,
and look forward to working with you to implement these reforms.
expedited removal
Question (17): As you know, our nation was largely founded by
persons fleeing religious persecution in Europe. Christians and other
religious minorities are still suffering serious persecution in many
countries around the world. Some of the more fortunate individuals
succeed in escaping and are accepted into the U.S. refugee program.
Others, seeking asylum in the U.S., are not as fortunate.
Too often, under the present law of expedited removal, immigration
officers, with no special training in asylum law or human rights
conditions in particular countries have the authority to summarily
place asylum seekers on the next plane back to the country of their
oppressor. These decisions are made with no independent monitoring or
judicial review. In many cases, these INS enforcement officers have
turned back asylum seekers even though they have expressed clear fear
of return.
Is this a fair way to treat people fleeing persecution? As Attorney
General, would you support legislation, such as that introduced by
Senator Brownback and Senator Leahy, to limit the use of expedited
removal?
Answer: Although I cannot comment on specific legislation, I
believe we should treat those fleeing persecution with compassion and
fairness. America was founded as a beacon of hope to the world, and
that is a heritage we should continue. I will be happy to work with you
and with Senators Brownback and Leahy to ensure that our immigration
laws are administered fairly and humanely.
due process
Question (18): In 1996, Congress tightened the immigration laws.
For example, Congress redefined and expanded the types of offenses for
which immigrants, including lawful permanent residents, can be deported
and applied those definitions retroactively. The new laws also
eliminated the ability of immigration judges to consider mitigating
factors such as length of time in the U.S., community ties, family
hardship, rehabilitation, and even U.S. military service, when deciding
whether to deport a person. The laws also removed the ability of the
federal courts to review deportation decisions. The result is that
long-time, law-abiding immigrants with U.S. citizen spouses and
children have been deported for minor offenses committed long ago.
These changes seem to violate fundamental principles of family
integrity, individual liberty, and due process.
As Attorney General would you support changes in the immigration
law that would eliminate the retroactive application of these
provisions, restore discretion to immigration judges to make case-by-
case determinations, and restore judicial review?
Answer: I am certainly troubled by some of the stories that have
emerged as a result of the 1996 law. I know that there have been both
legislative and administrative attempts to address these kinds of
concerns, and I look forward to working with you to see if we can find
a way to do so while at the same time allowing for the swift removal of
serious or violent criminals.
secret evidence
Question (19): The INS is currently using secret evidence--
undisclosed classified information--to deny bond, asylum, and other
immigration benefits to non-citizens, who it claims are risks to
national security. President Bush has called this an unfair practice
and spoke favorably during the Presidential debates of a bill I co-
sponsored last year with Senator Abraham--the Secret Evidence Repeal
Act. In 1995, you voted for a Specter amendment (No. 1250) to the
Comprehensive Terrorism Prevention Act of 1995 that would require the
Attorney General to provide an unclassified summary of the reasons for
the initiation of deportation proceedings against a person, where
classified information justifying the deportation is not disclosed.
Although this amendment was adopted, the provision was ultimately
dropped from the final legislation.
Do you agree with President Bush that such secret evidence is
unfair? Would you support the Secret Evidence Repeal Act--which
President Bush spoke favorably of during the Presidential debates?
Answer: I am troubled by some of the stories I have heard about the
use of secret evidence and believe that such uses must be reconciled
with Due Process. While I cannot comment on specific legislation, I
look forward to working with you to find a way, consistent with
national security, to protect the rights of citizens and aspiring
citizens coming to our nation.
domestic violence-based persecution
Question (20): Human rights organizations and women's rights
advocates have been working for many years to obtain recognition for
gender-related asylum claims under U.S. refugee and asylum law. This
recognition is consistent with the growing body of international human
rights law and the sentiment of the international community. Canada,
Britain, Australia and New Zealand recognize gender-based asylum
claims, including asylum protection for victims of domestic violence.
Last month, Attorney General Reno and the INS Commissioner proposed
regulations establishing a broad analytical framework for the
consideration of asylum claims based on membership in a particular
social group, including the recognition that victims of domestic
violence may qualify for asylum. These regulations provide generally
applicable principles that will govern the case-by-case adjudication of
gender-based claims, including those based on domestic violence or
other serious harm inflicted by non-state actors.
The Department of Justice is receiving comments from human rights
groups and women's rights groups, praising the broad approach in the
proposed regulations and suggesting improvements to ensure the fair
adjudication of gender-based asylum claims, including domestic violence
claims.
What direction will you provide as Attorney General to ensure that
the broad analytical framework set forth by these proposed regulations
is followed in the final regulations issued by a Department of Justice
under your leadership?
Answer: Although I have not reviewed these specific proposed
regulations, I believe we should treat those fleeing persecution with
compassion and fairness. My commitment to fighting domestic violence
and violence against women is longstanding, and I will maintain that
commitment wholeheartedly at the Department of Justice. I will be happy
to work with you to ensure that our immigration laws are administered
fairly and humanely, in this and other respects.
Question (21): You have testified that as Attorney General it will
be your obligation to defend the laws as enacted by Congress. In 1998
the House and the Senate, by bipartisan majorities, reauthorized the
Department of Transportation's Disadvantaged Business Enterprise
Program. In 2000, the United States Court of Appeals for the Tenth
Circuit reversed the district court in the Adarand v. Slater case and
upheld the constitutionality of the program. (228 F.3d 1147). A
petition for certiorari has been filed. As Attorney General, will
defend this case in the Supreme Court and defend the program against
other legal challenges by those who oppose to race-conscious
affirmative action?
Answer: It would be inappropriate for me to comment on pending
litigation. As a general matter, it is the longstanding policy of the
Department of Justice to defend any federal law for which a reasonable
and conscientious defense can be raised. If confirmed, I will enforce
this policy in the area of racial set-asides, as in all other areas.
Question (22): When you answered questions from Senator Leahy about
the Bill Lann Lee hearings and the Adarand decision on the first day of
the hearings, you referred to a Federal District Court opinion in the
Adarand case. Were you aware that the decision you cited had been
reversed by the United States Court of Appeals for the Tenth Circuit?
If you were aware of the 10 th Circuit decision in
Adarand, please explain why you cited the District Court case
in your testimony.
If you were unaware of the 10 th Circuit opinion,
how does the decision change your view on the constitutionality
of race-conscious affirmative action programs in general and
the Department of Transportation's Disadvantaged Business
Enterprise Program in particular?
Answer: My understanding is that the 10 th Circuit
reversed the District Court's ruling on summary judgment and has
remanded for further proceedings, but has not definitively ruled that
the statute is constitutional. In any event, the 10 th
Circuit decision post-dated both the Constitution Subcommittee's
hearing on set-asides and the Bill Lann Lee vote and so my explanation
for my positions at those times was informed by the District Court's
summary judgment ruling. Although the District Court decision informed
my thinking at the time of the ISTEA hearing, the 10 th
Circuit's more recent decision will inform my thinking as Attorney
General, if I am confirmed by the Senate.
Question (23): In your testimony, you quoted a portion of the
Adarand district court opinion in which the judge stated that he found
it ``difficult to envisage'' a race-conscious program that would be
narrowly tailored. Did you agree with the district court that the
``compelling interest'' portion of the test was met by Congress'
examination of discrimination in the transportation industry?
Answer: It would be inappropriate for me to comment on pending
litigation. I can say that there is much the government can do to
ensure affirmative access in the transportation industry. As a general
matter, it is likely that some federal race-conscious programs are not
constitutional under Adarand. Indeed, my recollection is that even Mr.
Lee identified one such program. That being said, it is the
longstanding policy of the Department of Justice to defend any federal
law for which a reasonable and conscientious defense can be raised. If
confirmed, I will enforce this policy in the area of racial set-asides,
as in all other areas.
Question (24): Please identify each and every amicus brief which
you or persons working under your direction authored or joined at any
time during your tenure as Senator, Governor or Attorney General.
Answer: I have not maintained specific records of amicus briefs
prepared or joined by me or my staff during my 26-year career in public
service. During that time, numerous briefs were filed. Indeed, in some
cases, the varying positions of entities to which the Attorney
General's office provided legal service required the office to file
multiple briefs. Because these briefs were filed in courts of law, they
are matters of public record.
Question (25): In employment discrimination, the Supreme Court has
held that race-conscious relief and gender conscious relief are
sometimes the only effective form of relief for past discrimination, or
to prevent ongoing discrimination. See U.S. v. ParadisT1, 480 U.S. 149
(1987)(race); Johnson v. Transportation Agency of Santa Clara Co., 480
U.S. 616 (1987)(sex).
Do you agree that race-conscious and gemder-conscious relief
are sometimes necessary and appropriate means of combating
employment discrimination?
Yes.
As Attorney General, would you continue the current policy of
the Justice Department to seek race-conscious or gender-
conscious relief in appropriate cases?
Answer: I would support race-conscious or gender-conscious relief
in cases it was consistent with the requirements of law.
As Attorney General, would you attempt to re-open any cases
with existing court orders that include race-conscious or
gender-conscious relief?
Answer: If I am fortunate enough to be confirmed as Attorney
General, I will assess case strategy in particular matters on a case-
by-case basis, conferring with the experienced professionals at the
Department of Justice, and make judgments based on the law and the
facts of each specific case.
Responses of the Nominee to questions submitted by Senator Kohl
1. antitrust--mci worldcom/sprint
A little more than a year ago, the Judiciary Committee held a
hearing on the competitive implications of the then-pending merger
between MCI WorldCom and Sprint, a merger which was ultimately
abandoned when the Justice Department opposed it. The merger would have
combined the second and third largest long distance phone companies and
would have resulted in two companies capturing nearly 80 percent of the
long distance market. Despite these large market shares, you said that
``I am strongly inclined to support the proposed merger.''
While you acknowledged that the competitive implications of the
merger needed to be examined, they were secondary to ``my largest
concern''--``the jobs of the hard working and talented people of the
State of Missouri.'' Finally, you argued that in examining this merger,
``the current landscape is not the landscape to be considered--instead
it should be analyzed based on the possible future of the
marketplace.''
Question: Are your statements at the MCI WorldCom/Sprint merger
hearings indicative of the approach you believe the Justice
Department's Antitrust Division should take when reviewing mergers?
Under the Department's Merger Guidelines, the competitive implications
of the proposed merger are paramount and the merger is analyzed with
regard to the current state of the marketplace. Would you make any
changes to the Antitrust Division's standards for reviewing mergers
such as paying more attention to factors other than the merger's likely
effects on competition?
Do you think the Justice Department was mistaken to oppose the now
abandoned MCI WorldCom/Sprint merger? [If yes,] why? Should we be
worried when a merger leads to such high concentration as this one--
which would have resulted in two companies controlling nearly 80% of
the market--could lead to higher prices for consumers?
Answer: In the area of antitrust enforcement, the competitive
implications of any proposed merger are of paramount importance. Thus,
I would approach any proposed merger with an eye towards ensuring open
competition in the marketplace. I would be open to considering
modifications to the Antitrust Division's standards for reviewing
mergers, but would do so in consultation with the antitrust experts in
the Department of Justice. With respect to the MCI WorldCom/Sprint
merger in particular, I believe it would be imprudent to comment on the
specifics of this transaction, or any transaction, without the benefit
of the full knowledge of the Antitrust Division.
2. antitrust--sherman act
The fundamental antitrust law--the Sherman Act--was enacted more
than a hundred years ago. For more than a century, it has protected the
principles we hold most important--competition, consumer choice,
fairness, and equality.
The antitrust laws are significant because they ensure that
competition among businesses of any size will be fair and that
consumers will pay low prices for all sorts of goods and services. And
these laws have a proud tradition of being supported in a non-partisan
manner--they've been vigorously enforced over the years by both
Republicans and Democrats.
Question: What role do you think antitrust laws have had in shaping
our economy and preserving competition?
How should we use antitrust laws to protect against consolidation
of economic power--to make sure that consumers aren't charged high
prices by large companies that have swallowed up their competition?
Answer: The antitrust laws have been a vital part of ensuring a
free and open marketplace in this country and, in my view, should
continue to serve this role. By ensuring that any proposed merger
promotes competition, and that an undue consolidation of monopolistic
power does not accrue in the hands of a single business entity, I would
help ensure the existence of free and open markets. This, in turn,
would help ensure that consumers are not charged prices above free
market levels.
3. antitrust--enforcement
In the last few years, the Antitrust Division has been very active
in antitrust enforcement, bringing prominent cases, such as the
Microsoft case, and challenging many large mergers, such as MCI
WorldCom/Sprint and Lockheed Martin/Northrup Grumman, to name a few.
Question: How would you evaluate the performance of the Justice
Department in dealing with the MCI WorldCom/Sprint merger and the
Lockheed Martin/Northrup Grumman merger. Do you believe that the
Antitrust Division has been appropriately enforcing our nation's
antitrust laws? Is there any change in approach or philosophy of
antitrust enforcement we can expect should you be confirmed at Attorney
General?
Answer: I believe that it would be imprudent to comment on how the
Justice Department has dealt with the MCI WorldCom/Sprint and the
Lockheed Martin/Northrup mergers in particular, as I have not had the
benefit of the Antitrust Division's full learning on these matters. For
the same reason, it would be imprudent for me to comment upon the
Antitrust Division's enforcement of the antitrust laws in any
particular cases. With respect to the philosophy of antitrust
enforcement that I would follow should I be confirmed as Attorney
General, I can assure you that I will fully enforce the antitrust laws
to help ensure free and open competition in the marketplace.
4. antitrust--future of the antitrust laws
Some have argued that our nation's antitrust laws, many written
over a hundred years ago, are outmoded and need to be updated before
they can be applied to today's high-tech industries. Others believe
that the antitrust laws apply equally well to modern economic problems
and high-tech industries as they did to problems of economic
concentration in the railroad, oil and other industries when they were
first written.
Question: What is your view? Do you think our antitrust laws are
outmoded and in need of revision?
Answer: The antitrust laws have proven to be flexible enough to
adopt to many new situations. That being said, one should always be
open to the possibility that improvements could be made, particularly
where fundamental economic shifts have occurred. If confirmed as
Attorney General, I will seek the advice of experts in this field,
including those in the Antitrust Division, before making any
determination as to whether are antitrust laws are in need of any
revision.
5. antitrust--european review
Another issue that has arisen in the last few years relates to
European review of mergers involving American companies, especially
given the increasing globalization of the world's economy and the
increasing numbers of mergers of American companies that affect the
European market. In many cases, because of their different time limits,
European merger authorities reach decisions on these mergers before the
U.S. antitrust authorities. This can result in the European Union
deciding to block a merger before the Justice Department has concluded
its review. In addition, there have been concerns raised that, in some
instances, the EU may have been motivated by protectionist sentiments,
and may have scrutinized mergers involving American companies more
strictly than those of European companies.
Question: What's your view of these issues? Do you believe that
European antitrust authorities are properly scrutinizing mergers and
other antitrust issues involving American companies? And do you think
that the Antitrust Division can take steps to better harmonize its
antitrust review with the European antitrust authorities?
Answer: I believe that in an increasingly global economy, it is
important, to the extent practicable, for different nations to enforce
their antitrust laws consistently to promote a free and open
marketplace. I believe that it would be imprudent for me to comment on
how European antitrust authorities are addressing antitrust issues as
they relate to American companies without the full learning of the
experts in the Antitrust Division. I assure you that here, as in all
other areas, if confirmed as Attorney General, I will take all
appropriate action in full consultation with the experts in the field,
and act so as to promote free and open markets. I can further assure
you that I will fully consult the antitrust experts, including those in
the Antitrust Division, before determining what steps may be
appropriate to enhance consistency between European and American
antitrust review. Finally, in evaluating candidates for the position of
Assistant Attorney General for Antitrust, in conjunction with the
President, I would ensure the candidate had the proper diplomatic
skills to work effectively and cooperatively with his or her
counterpart in Brussels.
6. antitrust--consistent enforcement
We should avoid sharp swings in antitrust enforcement. In the past,
it has appeared that antitrust enforcement has significantly changed
when a new administration takes office, particularly a transition
involving a change of political parties. For example, it appears that
the Antitrust Division during the Reagan/Bush years took a much more
hands-off approach to merger enforcement than the Antitrust Division
during the Clinton administration.
Changes in the enforcement of the antitrust laws dramatically
affect the business community and the financial markets. Businesses
need to be able to expect a consistent basic level of antitrust
enforcement from the government regardless which party is in power.
Question: What will you do to ensure continuity, stability and
predictability of law in antitrust enforcement as the government
transfers to a new Administration? And, what is the basic level of
antitrust enforcement that everyone should be able to expect from the
Justice Department regardless of party?
Answer: If confirmed as Attorney General, I will vigorously enforce
the antitrust laws to ensure a free and open marketplace. This is both
a floor and a ceiling: Wherever appropriate, the law will be enforced.
This should provide the consumers and the business community with the
assurance of continuity that they need as to future antitrust
enforcement.
7. antitrust--agriculture
Turning to agriculture, many family farmers believe that
consolidation among large agribusiness firms have made it increasingly
difficult to survive, as they have little bargaining power with respect
to the large agribusiness conglomerates.
Question: What is your view--have the antitrust laws been
adequately enforced with respect to agriculture? And will you assure us
that enforcement of antitrust laws in the agricultural sector of the
economy will be a priority of your Justice Department?
Answer: The family farm is an American institution, and one which
is fully protected by America's antitrust laws. Indeed, as you know,
the antitrust laws include special protections for farmers. Coming from
Missouri, I am well aware of the difficulties that farmers face as a
result of consolidations and mergers. My legislative record on this
matter is clear. As a Senator, I sponsored legislation that would have
enhanced the understanding of the Antitrust Division on agricultural
issues. This Question, however, goes more to the Question of
enforcement. And on this Question, I assure you that I will fully
enforce the antitrust laws in the area of agriculture to help ensure
that we have a competitive market for agriculture.
8. crime prevention--use of federal money
Recently, my office surveyed all of the sheriffs and police chiefs
in Wisconsin on a variety of law enforcement issues. The survey yielded
some very helpful insights into what the officers on the front lines
need from the federal government. Local authorities were almost
unanimous in their belief that the federal government needs to increase
its support for crime prevention programs. On average, the police in my
state support spending at least one-third of federal money specifically
on prevention.
Question: Can you detail your plan for crime prevention programs
generally and pledge to increase the resources required to be used for
crime prevention programs for local police chiefs?
Answer: As a former governor, President Bush has explained his
understanding that state and local authorities are largely responsible
for combating violent crime. He believes the Federal government's role
in criminal justice is primarily international and multi-
jurisdictional, including tough policies against organized crime, drug
cartels, and international terrorism. In addition to this role, the
President believes the Federal government can do more to improve our
criminal justice system:
1. Enforce federal gun laws. The President wishes to give
prosecutors the resources they need to aggressively enforce our gun
laws and will provide more funding for aggressive gun law enforcement
programs such as Texas Exile and Project Exile in Richmond, Virginia.
2. Develop and promote successful criminal justice initiatives,
such as the abolition of parole and truth in sentencing in the federal
system.
3. Support state and local law enforcement with federal funding,
technical assistance where needed, and a national database to help
state and local police identify, track, and arrest fugitives who move
across jurisdictional lines and to prosecute serious hate crimes where
local jurisdictions lack the resources to do so.
4. Promote federal and state partnerships to develop advanced
technology to help police work both smarter and more efficiently.
5. Combating terrorism. The President believes that, as a nation,
we must have zero tolerance for terrorism.
In addition, the President is committed to giving local law
enforcement greater authority over federal funds.
Should I be confirmed as Attorney General, I will work with both
the President and the Congress to fully implement this agenda.
If this can be accomplished, local jurisdictions that want to
direct resources to prevention will be free to do so, while police
departments with different objectives can prioritize their funding
accordingly.
9. homestead exemption
Shortly before declaring bankruptcy, the former Commissioner of
baseball, Bowie Kuhn, moved to Florida and bought a $1 million mansion,
effectively shielding the value of that home from his many creditors.
While Kuhn was taking advantage of the loophole in Florida's bankruptcy
law, creditors were preparing to seize his two homes in the New York
area--a state that did not permit him to hide his money from his
creditors.
To remedy this outrage in the bankruptcy laws, Senator Sessions and
I offered an amendment to establish a federal homestead cap of
$100,000. The amendment passed with your support by the overwhelming
vote of 76-22. As you know, the U.S. government is a major creditor in
these types of bankruptcies and the Justice Department is in charge of
collecting. So, this loophole costs taxpayers money and frustrates the
Justice Department's enforcement efforts.
Question: Is there any greater fraud in bankruptcy law than the
homestead exemption? Can you think of any reason that we should not
make this change in the bankruptcy laws this year?
Answer: As you mentioned, I supported the amendment that you
offered on this subject. Moreover, because, again as you mentioned, the
United States government is a creditor in many bankruptcy actions, it
is important to ensure that--while the bankruptcy laws allow debtors on
hard times to make a fresh start--debtors do not abuse the bankruptcy
laws to avoid paying money due the government and other creditors.
Thus, if confirmed as Attorney General, I commit to you that I will
fully enforce the bankruptcy laws to ensure that all creditors,
including the United States government, receive their just due.
Moreover, should Congress decide to alter the law in this area to, for
example, eliminating the homestead exemption--as is its lawful
prerogative--I fully commit to enforcing the law as amended.
10. crime prevention--federal budget for prevention programs
For fiscal year 2001, the Office of Juvenile Justice and
Delinquency Prevention will be funded at $141.7 million for prevention
programs (defined to include mentoring, after-school programs, conflict
resolution, drug and alcohol prevention, etc.). This is a dramatic
increase from the last year of the Bush Administration when the budget
was only $15.5 million.
Question: These programs have been very successful at preventing
crime and helping at risk kids get on the right track. Will you pledge
to continue this trend toward increased funding for these programs?
Answer: The President is fully committed to combating juvenile
crime and providing sufficient funding to accomplish the task. Indeed,
as Governor, he made this a top priority. Thus, in 1995, he called for
and signed legislation overhauling Texas' outdated juvenile justice
laws. The new laws restored responsibility and tough consequences for
crimes committed by juveniles. As a result, juvenile crime is down 17
percent in Texas--the first decline in over a decade--and violent
juvenile crime is down 44 percent. I commit to you that I will that I
will fully work with the President and Congress to further the
President's agenda in this very important area.
11. enforcing the gun laws
You've been a vocal critic not only of new gun laws, but also of
the Clinton administration's record on prosecuting gun crimes. For
Fiscal Year 2001, the President included funding for 100 additional
prosecutors and $75 million for state and local authorities to hire
more prosecutors. Through a strategy that has increased local awareness
of gun crime penalties with increased federal resources to prosecute
those crimes, Operation Ceasefire in Milwaukee has led to a 17%
decrease in gun homicides. Yet, our federal prosecutors warn me that an
even greater focus on increased federal prosecutions of gun crimes will
divert needed resources from other tasks unless more federal agents and
prosecutors are funded.
Question: How much more federal money and how many more federal and
state prosecutors do you think are necessary to bring the number of
prosecutions to an acceptable level? Will this be an emphasis of your
tenure as Attorney General?
Answer: President Bush is fully committed to enforcing America's
gun laws, which will be a priority in the Justice Department should I
be confirmed as Attorney General. Towards that end, the President
wishes to give prosecutors all the resources they need to enforce our
gun laws aggressively, and will provide more funding for aggressive gun
law enforcement programs such as Texas Exile and Project Exile in
Richmond, Virginia. I am fully committed to assisting the President in
promoting his agenda in this and all other areas.
12. privacy
Last year on the Judiciary Committee, we explored the FBI's
``Carnivore'' system--an e-mail surveillance program designed to track
and monitor a suspect's online communications. This is a powerful law
enforcement tool--perhaps too powerful--and we must be sure that it is
not misused. If, as we are now learning, ``Carnivore'' is able to
capture all e-mail traffic channeled through an Internet Service
Provider (ISP), then the fear of innocent civilians being subject to
search without cause is justified. Such a ``fishing expedition''
wouldn't be right.
Question: How important do you think it is that we protect the
privacy rights of civilians, and how serious a threat to privacy would
``Carnivore'' be if it's misused or inadvertently ``captures''
information other than the suspect's?
Answer: The Internet has obviously grown to be a vibrant part of
our modern economy. It is the Justice Department's responsibility to
ensure that those who conduct research or business on line can do so in
a safe, secure environment. At the same time, however, we must take
care that the government does not become too heavy handed in its on-
line law enforcement activities in order to protect the privacy rights
of law-abiding citizens. As you know, when I was in the Senate, I
convened hearings on the importance of respecting privacy rights in the
digital age. If confirmed, I will conduct a thorough review of
Carnivore and its technical capabilities, and work closely with law
enforcement to ensure that adequate measures are taken to secure
personal privacy before the program is deployed. I would look forward
to working with you to ensure that a proper balance is struck in this
respect.
13. crime prevention/enforcement--proactive approach
Starting at the end of the Bush Administration and increasing
dramatically during the Clinton years, our United States Attorneys
evolved from offices focused purely on prosecuting crime to offices at
the center of proactive community coalitions designed to prevent crime.
In Milwaukee, for example, the U.S. Attorney has had dramatic success
in using federal money for prevention through the Weed and Seed
program, after school programs like Safe and Sound, and more Boys and
Girls Clubs among other successful programs. These programs combined
with federal assistance for enforcement with a HIDTA (HI-ta) and
Operation Ceasefire have resulted in an impressive decline in youth
crime and crime generally.
Question: Can I get your assurance today that federal assistance to
U.S. Attorneys will continue as they increase their efforts to lead
proactive community coalitions to prevent and fight crime? And what
will you do to encourage and support this trend?
Answer: As your Question makes clear, it is very important to fight
crime at all levels--both at the prosecution stage as well as the
prevention stage. I have also witnessed the success of a HIDTA in my
home state of Missiouri. Thus, I can assure you that, if confirmed as
Attorney General, I will strongly encourage U.S. Attorneys to continue
their efforts to lead proactive community coalitions to prevent and
fight crime. I further assure you that I will work to ensure that the
U.S. Attorneys have the resources necessary to perform their jobs
effectively.
14. mail order brides and human trafficking
In 1996, as part of the Immigration Bill, the Senate passed my
measure that called for the INS to issue a study about the growing
``mail-order bride'' business in the United States. The INS was also to
draft a regulation aimed at requiring these so-called ``international
matchmaking organizations'' to provide their foreign women recruits
with background information regarding U.S. immigration law. At the very
least, that is what INS was supposed to do according to the law we
passed almost five years ago.
The INS issued a report which suggested that recent developments,
in particular the presence of mail-order businesses on the Internet,
will require continued monitoring of this business. More recent events,
such as the discovery of a slain mail-order bride near Seattle--her
American husband is the suspected murderer--suggest that violence in
these types of marriages is a growing problem.
The INS has yet to issue the proposed regulation as required by the
1996 law. That is unfortunate, because we need to get after these
matchmaking agencies to both better inform the potential brides-to-be,
and screen the American bride seekers.
Question: First, do you agree there's a problem with this mail-
order bride industry? If so, will you instruct the INS to take a more
active role in policing these practices? At the very least, will you
see to it that the INS issue the proposed regulation that is almost
four years overdue?
Answer: I believe that marriage is an institution that should be
cherished, and as Attorney General, I will fully enforce all federal
laws concerning human trafficking. I have not examined the issue of
mail order brides in depth, but if confirmed, I will give it
appropriate attention, and ensure that the INS takes all appropriate
action required by law, including the laws to which you refer.
15. trafficking of women and children
Trafficking of women and children is a growing global problem,
teetering on crisis. It is hard to believe that an international
prostitution and slave trade is thriving--and growing--in the year
2001. Almost 50,000 persons are trafficked each year to the United
States. These people are victims, not criminals. The real offenders are
the crime lords who manage this despicable trade.
Significant legislation became law late last year--specifically,
the Victims of Trafficking and Violence Protection Act of 2000. Part of
the goal of this new law is to target the traffickers, not the victims.
So, the act lets the Attorney General extend special visas to 5000 sex
trafficking victims a year. Hopefully, by allowing the victims to
remain protected in this country, we will be able to encourage their
cooperation in bringing down the traffickers.
Question: The success of this law will be depend upon its
implementation. As Attorney General, will you be dedicated to issuing
these 5000 newly created visas in an effort to crackdown on
international human trafficking? What is your feeling generally about
how best to fight this terrible practice that terrorizes hundreds of
thousands of women and children each year?
Answer: Like you, I believe that human trafficking is a serious
problem. No individual, anywhere, should suffer the indignity of the
slave trade. Thus, if confirmed as Attorney General, I will fully and
vigorously enforce the Victims of Trafficking and Violence Protection
Act of 2000, and any other law that Congress chooses to enact in this
area.
16. deadbeat parents punishment act enforcement
In 1998, Senator DeWine and I authored the Deadbeat Parents
Punishment Act which became law with widespread bipartisan support.
Estimates then indicated that if delinquent parents fully paid their
child support, approximately 800,000 women and children could be taken
off the welfare rolls. While I do not have updated figures, I remain
convinced that enforcement of the Deadbeat Parents Punishment Act will
yield increased collection of late payments which in turn will make
life easier for tens of thousands of mothers and their children.
Question: Will you pledge to enforce the Deadbeat Parents
Punishment Act and will you detail how you intend to ensure strict
enforcement of this law?
Answer: I pledge to you that if confirmed as Attorney General, I
will enforce the Deadbeat Parents Punishment Act. Although I have not
studied the details of this law, I will do so, and do my best to ensure
that those meant to be protected by it are fully protected.
17. presumption
You've testified repeatedly today that as Attorney General you will
enforce the law--it is your responsibility simply to administer the law
as it currently exists.
There are thousands of ongoing cases in the Justice Department--
civil suits, criminal matters, antitrust cases and investigations of
all sorts. Some of them are notable like the Microsoft case, the
tobacco lawsuit, airline merger reviews, among the many cases.
Question: If your job as Attorney General is simply to enforce the
law, then are the Department's currently pending cases deserving of a
presumption that these cases are worthwhile and deserve continued
prosecution?
If these cases are not deserving of such a presumption, what
standard will you use in deciding whether to continue the case?
Answer: Obviously, if confirmed as Attorney General, I have the
obligation to become fully informed about the important cases currently
being conducted by the Department's legal divisions. I will utilize the
expertise of the Department's staff, which has been and will be
responsible for the day-to-day management of these cases, in meeting
this responsibility and before concluding that the course of any of
these major litigation matters should be altered.
Responses of the Nominee to questions submitted by Senator Leahy
Question: List each presidential nominees on which you placed a
``hold'' while a United States Senator. In responding, please specify
how you are defining ``hold.''
Answer: In an effort to fulfill my responsibilities as a United
States Senator, I welcomed inquiries by the Majority Leader and
Majority Whip regarding the scheduling and floor consideration of items
on the legislative and executive calendars. Though I may have expressly
requested prior notification during my six years so as to participate
in debate or be present for a vote, I do not recall (other than as
detailed herein) which, if any, nominations were involved, or the
circumstances surrounding any such requests.
Question: Did you or your staff ever indicate to Senator Lott,
Senator Nickles or any other members of the Republican leadership or
their staffs a concern in connection with scheduling Senate
consideration of a presidential nomination? For each such occasion
please provide a complete discussion of what you did and why you did
it.
Answer: I asked the Senate leadership to consult with me as each
presidential nomination came up. Out of the approximately 1,686 Clinton
presidential nominees, I voted to confirm all but 15. Though I may have
expressly requested prior notification during my six years so as to
participate in debate or be present for a vote, I do not recall (other
than as detailed herein) which, if any, nominations were involved, or
the circumstances surrounding any such requests.
Question: Did you ever indicate that you wished to be consulted by
the Majority Leader in connection with scheduling Senate consideration
of a presidential nomination? For each such nomination please provide a
complete discussion of what you did and why you did it.
Answer: I asked the Senate leadership to consult with me as each
presidential nomination came up. Out of the approximately 1,686 Clinton
presidential nominees, I voted to confirm all but 15. Though I may have
expressly requested prior notification during my six years so as to
participate in debate or be present for a vote, I do not recall (other
than as detailed herein) which, if any, nominations were involved, or
the circumstances surrounding any such requests.
Question: Did you ever indicate to anyone that you would prefer the
vote on a presidential nomination not take place or not take place at a
certain time? For each such nomination please provide a complete
discussion of what you did and why you did it.
Answer: I regularly requested that votes on nominations and
legislation take place to accommodate my schedule during my six years
in the Senate, so as to participate in debate or be present for a vote.
I do not recall which, if any, nominations were involved, or the
circumstances surrounding any such requests.
Question: Please describe any other steps that you took to delay or
block consideration of a presidential nomination, and the standard you
used when you decided to take such steps.
Answer: I asked the Senate leadership to consult with me as each
presidential nomination came up. Out of the approximately 1,686 Clinton
presidential nominees, I voted to confirm all but 15. Though I may have
expressly requested prior notification during my six years so as to
participate in debate or be present for a vote, I do not recall (other
than as detailed herein) which, if any, nominations were involved, or
the circumstances surrounding any such requests.
Question: You testified on Wednesday that you opposed the
nomination of James Hormel to be Ambassador to Luxembourg because
``based on the totality of his record,'' you ``didn't think he would
effectively represent the United States.'' Please specify the factors
that led you to oppose that nomination and vote against it in
Committee.
Answer: Based on the totality of Mr. Hormel's record of public
positions and advocacy, I did not believe he would effectively
represent the United States in Luxembourg, the most Roman Catholic
country in all of Europe.
Question: Is it true that you refused repeated requests to meet
with Ambassador Hormel to discuss your concerns about his nomination,
and if so, why?
Answer: I opposed the confirmation of Ambassador Hormel in
committee. That was the extent of the action I took concerning his
nomination. Given the pressing demands of fulfilling the
responsibilities of a U.S. Senator, there were other interests in the
Senate upon which I was primarily focused.
Question: According to news reports, you placed a hold on
Ambassador Hormel's nomination, and threatened to filibuster it if it
ever came to the floor for a vote. What standard did you use for
deciding whether to attempt to delay or block a vote on that
nomination.
Answer: I cannot assess the accuracy of published news reports I
have not read. However, it is not correct that I placed a hold on
Ambassador Hormel's nomination. Although I voted against his nomination
in Committee, I do not recall threatening to filibuster the nomination.
Since I do not recall attempting to delay or block a vote on Hormel's
nomination, the question of the use of a standard is inapplicable.
Question: You initially opposed the nomination of David Ogden to
head the Civil Division at Justice and voted against him in Committee.
What if any steps did you or your staff take in 1999 and 2000 to delay
or block Committee consideration of the Ogden nomination? Why did you
oppose the nomination of David Ogden?
Answer: I am not aware of any action taken on my behalf to delay
consideration of the Ogden nomination. I voted against Mr. Ogden in
Committee because of concerns about his candor when asked about his
knowledge of the Department's tobacco litigation.
Question: You voted against the nomination of Alice Rivlin to be a
Member of the Board of Governors of the Federal Reserve System. Why did
you oppose the Rivlin nomination?
Answer: I joined 40 of my Republican colleagues in opposing this
nomination. Although I do not recall the details of my opposition, I
was concerned about her role in formulating the President's
controversial budget proposals.
Question: In a 1999 interview for Southern Partisan magazine, you
are quoted as saying: ``I have been as critical of the courts as any
other individual, probably more than any other individual in the
Senate. I have stopped judges and I have argued against liberal
expansionism and I will continue to do so.'' When you said to Southern
Partisan magazine that you ``stopped judges,'' what nominations and
judges were you referring to, and what did you do in each instance to
``stop'' them?
Answer: During my tenure as a U.S. Senator, I took the
constitutional obligation to advise and consent on lifetime judicial
nominations very seriously. My consistent standard was whether I
believed, based on the totality of the record, that a given nominee
would enforce the law as written, rather than follow his or her own
policy preferences. With Ronnie White and Fredericka Messiah-Jackson,
based on their records and on the concerns expressed by law
enforcement, I did not believe they would do so. In both instances, I
voted against the nomination in question and explained to my colleagues
my reasons for doing so.
Question: What did you do to delay Senate consideration of the
nomination of Margaret Morrow?
Answer: I was concerned about the nomination of Ms. Morrow for a
District Court judgeship within the Ninth Circuit Court of Appeals, a
court that has had a consistently higher reversal rate before the U.S.
Supreme Court than any of her sister circuits. Ms. Morrow's record, I
believed, indicated a hostility to voter referenda in California and a
willingness to supplant the law with her own personal policy
preferences. Accordingly, I voted against her in Committee, and
requested an opportunity to speak against the nomination when it came
before the full Senate. When the nomination was scheduled for a floor
debate, I spoke against the nominee and voted not to give her an
appointment for lifetime tenure on the federal bench.
Question: Why did you oppose the nomination of Judge Sonia
Sotomayor to the Second Circuit in the Judiciary Committee and in the
Senate?
Answer: I was concerned about the nomination of Ms. Sotomayor to
the Second Circuit Court of Appeals, because her record as a District
Court judge, I believed, indicated a willingness to stretch the law and
to supplant the law with her own personal policy preferences.
Accordingly, I voted against the nominee in Committee and on the final
Senate vote.
Question: If confirmed as Attorney General will you employ a
standard for recommendations to the President that turns on whether you
think the caseload of the court justifies an appointment? What will
your standard for workload calculations be?
Answer: I believe that a court's caseload is an appropriate factor
for assessing the need for new judicial appointments, and that the
assessment of the sitting judges on the court in question is a useful
measure of that caseload. Obviously, Congress has an important role to
play in assessing the need for federal judgeships and Senator Grassley
has played an important role in that process. Ultimately, however, the
appointment of a judicial nominee is the President's responsibility,
with the advice and consent of the Senate.
Question: Why did you oppose the nomination of Judge Aiken?
Answer: I opposed Judge Aiken based on an evaluation of the
entirety of her record. I was particularly concerned about a sentencing
decision she made as a state trial judge, and her subsequent
explanation of that decision. Judge Aiken found a 26-year-old defendant
guilty of raping a 5-year-old girl, and sentenced him to 90 days in
jail, rather than substantial prison time (which was an available
option under Oregon law), so that he would be eligible for
psychological counseling. I considered this focus on the perceived best
needs of a convicted rapist over adequate punishment for a grave threat
to the public to constitute a significant lapse in judgment, at best.
Question: Why did you oppose the nomination of Judge McKeown and
what did you do to delay Senate consideration of this nominee?
Answer: I opposed Ms. McKeown's appointment to the Ninth Circuit
because she had evidenced a hostility to voter initiatives, including
efforts to prevent initiatives from even being placed on the ballot. I
was particularly concerned in light of the fact that voter initiatives
were a substantial issue in the Ninth Circuit at the time and because
the Ninth Circuit has had a consistently higher reversal rate before
the U.S. Supreme Court than any of her sister circuits.
Question: Why did you vote against Judge Mollway?
Answer: Ms. Mollway had become identified with a number of legal
positions on various issues, including the validity of prison reform
legislation and mandatory minimum sentences. After her confirmation
hearing, I was not convinced that she had sufficiently distanced
herself from some of these previously-expressed positions or that she
fully appreciated the role of a federal judge to allow me to support
her confirmation for a lifetime tenure as a federal judge.
Question: As Attorney General would you not recommend candidates
for the federal bench who disagreed with you about the legitimacy of
the substantive due process doctrine?
Answer: The Supreme court's precedents recognize some role for the
doctrine of substantive due process. To the extent I play a role in the
process for selecting judicial nominees, I would want to recommend
judges who follow the law and the precedents of the Supreme Court.
However, to the extent that federal courts are to recognize new
substantive due process rights, I believe the Supreme Court has
indicated a preference that it take the lead in any judicial expansions
of this doctrine. I would be reluctant to recommend candidates for
lower federal courts who expressed an eagerness to expand the doctrine
in the absence of clear guidance from the Supreme Court.
Question: Why did you oppose against Judge Paez?
Answer: I was concerned by the comment from the ACLU, calling Judge
Paez's nomination, ``a welcome change after all the pro-law enforcement
people we've seen appointed to the state and federal courts.'' I was
also concerned about public comments he made regarding California
ballot initiatives while he was sitting as a federal district judge
because the constitutionality of the initiative might have come before
him. I was particularly concerned in light of the fact that voter
initiatives were a substantial issue in the Ninth Circuit at the time
and because the Ninth Circuit has had a consistently higher reversal
rate before the U.S. Supreme Court than any of her sister circuits.
Question: Why did you oppose Judge Dyk?
Answer: Mr. Dyk's nomination was a very difficult one for me,
because he had extremely strong credentials. However, he had publicly
expressed a view of statutory construction that advocated disregarding
clear statutory text in favor of looking for the ``basic purpose'' of
the statute. He was appointed to a court that has a special and
exclusive responsibility to interpret certain statutory schemes subject
only to Supreme Court review, which is infrequent because the Federal
Circuit's exclusive jurisdiction precludes the possibility of circuit
splits, one of the major factors applied by the Supreme Court in
granting certiorari.
Question: You voted against Judge Lynch? Why?
Answer: Mr. Lynch had authored articles regarding constitutional
interpretation that rejected the doctrine of original intent and cast
the role of the federal judge as one who was free to effect political
change without voter accountability. Based on these statements and my
review of the totality of his record, I did not favor appointing to him
to a lifetime tenure on the federal bench.
Question: The Boston Globe reported on January 15, 2001 that in
1995, ``Ashcroft killed the looming nomination of Alex Bartlett, an
African-American, surprising Abner Mikva, a former judge and then
President Clinton's counsel.'' According to the article, Judge Mikva
called you up and asked you why, and you said, ``I just don't like him.
He did something I don't like.'' Judge Mikva then asked if there was an
ethical problem, and you said, ``No. I just don't like him.'' Please
comment on the accuracy of this conversation as reported by the Boston
Globe. Did you oppose the ``looming nomination'' of Alex Bartlett, and
if so, why?
Answer: Alex Bartlett is not an African-American. Bartlett was
never nominated by President Clinton. I made it a practice while a
member of the U.S. Senate not to comment on individuals who were never
nominated.
Question: Please provide the details of all contacts by you or your
staff with law enforcement regarding the nomination of Judge Ronnie
White. Describe when it occurred, who initiated the contact, and all
that was communicated.
Answer: During my tenure in the Senate, my staff kept in regular
contact with various constituents in Missouri, including especially law
enforcement professionals. Such contact was ongoing, and part of the
regular process of trying to represent well the people of Missouri. In
the case of Judge White, a great many individuals in law enforcement
expressed grave concerns to my office over his nomination, and those
concerns were a significant factor in my decision to oppose his
confirmation.
Question: In light of the Edmond decision of the United States
Supreme court, do you think it was fair for you to have been and remain
critical of Judge White's dissent in Damask?
Answer: My understanding is that the Edmond case deals with
``suspicionless'' or blanket drug checkpoints. It is inapplicable to
the facts of Damask, where the police had created a checkpoint designed
to stop only those who behaved in a way to justify individualized
suspicion.
Question: In your questioning of Judge White at his confirmation
hearing you made reference to his actions as a State legislator. Did
you accept Judge White's explanation of what happened at the markup you
inquired about? Did that matter figure in your decision to oppose Judge
White? Did you discuss that matter with any other Senators, and if so,
what did you say about it?
Answer: I opposed Judge White on the basis of his record of
dissents in criminal, and in particular death penalty cases, and
because of the level of law enforcement opposition to his nomination. I
discussed these factors with other Senators.
Question: Other than the law enforcement letters that you
circulated with your Dear Colleague letter to Republican Senators the
day of the Senate vote, did any other individual, group or organization
contact you or your office and urge you to oppose or support the
nomination of Judge Ronnie White? If so, who, when and based on what
consideration? Did any such contacts affect your decision to oppose
Judge White?
Answer: I was contacted by numerous individuals who expressed views
on Judge White's nomination. Much of the correspondence from law
enforcement organizations and individuals has been submitted for the
record. It is my understanding that my office also received calls,
emails and other correspondence from a variety of my constituents
dealing with Judge White's record in criminal cases and his
qualifications for the federal bench.
Question: Did any issue having to do with reproductive rights or
restrictions on a woman's right to choose figure in your decision to
oppose Judge White?
Answer: During the time Judge White's nomination was pending, a
number of my constituents in Missouri brought his record on this issue
to my attention, but it was not a significant factor in my decision to
oppose his confirmation. Indeed, I supported 218 out of 230 Clinton
judicial nominees, most of whom, I assume, did not share my views on
this issue.
Question: Did any political considerations figure into your
decision to oppose Judge White?
Answer: It occurred to me that it might be politically unpopular to
oppose Judge White. Nevertheless, I concluded that in light of the
level of law enforcement opposition to his nomination and his record of
dissents, I could not support his nomination.
Question: Senator Kyl stated at the hearings what he recalled you
said in the Republican caucus meeting on October 5, 1999, before the
Senate voted on Judge Ronnie White's nomination. What do you recall
communicating at that time to other Senators?
Answer: I recall explaining the reasons why I opposed his
nomination at that meeting, and handing out some written material
supporting my reasoning.
Question: While a Senator what were your positions on the
nominations of Bonnie Campbell, James Duffy, Barry Goode, Roger
Gregory, Kathleen McCree Lewis, Enrique Moreno, Judge Helene White,
Judge James Wynn, Jr. and H. Alston Johnson?
Answer: During my six years in the Senate, I voted for more than
1600 Clinton nominees. I do not recall what position, if any, I took on
these specific nominees.
role as attorney general
Question: As Attorney General, how would you choose your law
enforcement priorities?
Answer: As Attorney General I would set my law enforcement
priorities in consultation with the expert staff of the Department. I
would also consult with law enforcement and Members of this Committee.
Although it is impossible to assess all my priorities at this juncture,
I can stress, as I did at the Committee's hearings, that among my very
top priorities would be targeting racial profiling and prosecuting gun
crimes.
Question: If confirmed, would you recommend and approve of the
nomination of federal judiciary candidates who have taken pro-choice
positions or indicated their support for Roe v. Wade? Would you
recommend or approve the nomination of candidates who were personally
opposed to the death penalty, provided that they assured you that they
would enforce the law? Would you recommend or approve the nomination of
gay men and lesbians who had demonstrated competence and integrity?
Answer: As President Bush has made clear, he will have no litmus
test for judicial nominations. As Attorney General, I will fully
support the President's standard, and will not employ any litmus tests
in carrying out any role I might have in those nominations.
Question: As Attorney General, would you make such positions
equally open to people of all races, religions, genders, sexual
orientations, and marital statuses?
Yes.
Question: Would the applicant's position on the death penalty be
considered in connection with decisions on appointments to senior
positions within the Department of Justice?
Answer: An applicant's position on this issue could be relevant if
his record reflected an unwillingness to enforce laws which the
applicant personally opposes.
Would whether the applicant had exercised her constitutional right
to an abortion or had a strong personal feeling on the issue of
abortion be considered during hiring, promotion and appointments at the
Department?
A woman's personal health choices are not relevant to employment in
the U.S. government, and, as Attorney General, I will not employ a
litmus test for hiring, promotion, or appointments at the Department of
Justice.
Question: Would you advise the President to review each U.S.
Attorney on a case-by-case basis and to implement an orderly transition
to new appointees? Do you anticipate that some U.S. Attorneys who are
performing effectively would be asked to serve out the balance of their
terms in office?
Answer: When he nominated me as Attorney General, the President
asked me to give all advice to him and to him alone, and that is a
commitment I believe I should honor. I am not aware of any final
decision by the President regarding the retention of U.S. Attorneys. I
do believe that U.S. Attorneys are critical to maintaining firm and
uniform law enforcement across the U.S. and that the U.S. Attorneys
offices should remain consistent and non-political.
Question: You testified on Wednesday 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.'' Would it be fair to say that, if confirmed,
you will continue to ``participate in the development of the law'' in a
manner that further restricts the constitutional rights of women
recognized in Roe and its progeny?
Answer: As Attorney General, my job will be to enforce the law,
and, as I explained at the hearing, I accept Roe and Casey as settled
law of the land. The Supreme Court has made perfectly clear that there
is a constitutional right to abortion.
Question: What did you mean in your 1997 speech ``On Judicial
Despotism'' when you said: ``We should enlist the American people in an
effort to rein in an out-of-control Court.''
Answer: Our Constitution begins with the words ``We the People''
because it is only through the consent of the people that our
government derives its authority. Judges are sworn to uphold the
Constitution, and, when they implement their own personal policy
preferences instead of applying the law, they are subverting their
Constitutional role. It is for this reason that the appointment of
judges is given to the President, with the advice and consent of the
Senate--so that the appointing and confirming bodies remain
democratically accountable to the people.
reproductive rights:
Question: You testified that you accepted Roe and Casey as ``the
settled law of the land.'' When in your mind did these cases become
``settled''? Please be specific.
Answer: The cases have become settled through the passage of time
and reaffirmation by the Supreme Court. As I observed at the hearing,
the Supreme court's decisions on this have been multiple, recent, and
emphatic.
Question: Please specify the legal principles that you believe were
``settled'' by Roe and Casey.
Answer: Roe and Casey make plain that women have a constitutional
right to abortion.
Question: Did you consider Roe and Casey to be settled law when, as
a Senator, you introduced S. 2135, the Human Life Act of 1998?
Answer: Yes, that is why I simultaneously supported a proposed
constitutional amendment to the same effect. The proposed
constitutional amendment would have been unnecessary if Roe and Casey
were not settled law.
Question: Is S.2135 unconstitutional under Roe and Casey?
Answer: As introduced, S.2135 is not constitutional under Roe and
Casey. Nonetheless, I thought that S.2135 had the potential to promote
a discussion that could have led to the passage of legislation that
would have been constitutional under Roe and Casey. In my view, it is
not uncommon for a legislator to introduce legislation that could not
pass as initially proposed in order to begin a process that could lead
to the passage of legislation.
Question: In 1991, when you were Governor of Missouri, the Missouri
Legislature considered a bill known as Senate Bill 339, which would
have made it a felony offense to perform a so-called ``non-
therapeutic'' abortions at any time after conception. Did you support
Senate Bill 339? Had it passed, would you have signed it into law?
Would you now agree that Senate Bill 339 was unconstitutional under
existing Supreme Court precedent?
Answer: While I have no specific recollection of SB339, press
reports at the time indicated that a prominent Democratic state
senator, Senator John Scott, introduced SB339 in 1991. These press
reports also suggest that the bill died in the Senate committee, and
never was considered by the full legislature.
The purpose of this bill was to list under the definition of ``non-
therapeutic abortions'' 18 different reasons prohibiting certain
abortions under state law. Such prohibited purposes included: race or
sex selection of the unborn child, cosmetic reasons, avoidance of
perceived damage to reputation, failure or non-use of birth control,
prevention of a child from being adopted. This bill did not prevent
abortions attributable to rape, incest or a ``bona fide, diagnosed
health problem'', i.e., reasons considered ``therapeutic'' and not
otherwise prohibited under the bill. This bill was one of several bills
presented during the 1991 legislative session.
Although I have no specific recollection of SB 339, it appears from
press reports that representatives from my office may have expressed
interest in seeing the bill passed out of committee.
While I was Governor, it was my policy to refrain from opining on
whether I would sign a bill until after a bill actually passed the
legislature because bills changed dramatically throughout the
legislative process. Therefore, I have no opinion on whether I would
have signed the bill.
Interestingly, in a newspaper end-of-session review of the 1991
legislature session entitled ``Anti-Abortion Proposals Faded Quietly in
Session'', the following appeared ``But the governor never threw his
weight behind any particular bill. Asked Friday night why he thought
the legislature resisted attempts to further restrict abortion,
Ashcroft responded simply, I don't know.''
Regarding the bill's constitutionality, I have not taken the time
to apply constitutional principles or case law of the time to the bill
then under consideration. Under the recent Casey and Carhart decisions,
its constitutionality might clearly be questioned.
Question: Do you believe that there is such a thing as
constitutional right to privacy--not specifying if, for example, such a
right includes the right to terminate a pregnancy--but, more broadly,
is there a constitutionally-protected right to privacy? If so, which
provision of the Constitution is the source of that right to privacy?
Answer: I believe in the right to privacy. The Supreme Court has
held that there is a constitutional right to privacy, that finds its
genesis in the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
I also believe that the Third Amendment embodies a constitutional right
to privacy.
Question: In November 1998, in response to the murder of Dr.
Barnett Slepian and other attacks on reproductive health care
providers, Attorney General Reno established the National Task Force on
Violence Against Health Care Providers. Will you commit to the
continuation of this Task Force?
Answer: Yes.
antitrust
Question: I have written the Justice Department and the Attorneys
General of each of the six New England states regarding my concerns
about the rapidly increasing concentration in the dairy processing
industry. I am most concerned about Suiza Foods, which is headquartered
in Texas, which controls almost 70% of the fluid milk processing and
distribution in New England. Just last week, a report prepared by Dr.
Mary Hendrickson and Dr. William Heffernan of the University of
Missouri confirmed my fears. They concluded that dramatic changes have
occurred in the past three or four years in the dairy sector as a
result of consolidation and globalization and specifically mentioned
Suiza Foods.If you are confirmed as Attorney General will you
vigorously look into this matter?
Answer: I am concerned about excessive concentration in any
industry when that concentration is the result of anticompetitive
actions. As you know, the antitrust laws contain specific provisions
designed to ensure that farmers can compete effectively. If confirmed,
I would look forward to looking into this matter and ensuring that both
the antitrust laws and the interests of dairy farmers are vindicated.
Question: Are you satisfied with thrust of the current antitrust
laws or do you intend to recommend that the new Administration review
these laws with the intent of proposing some significant changes?
Answer: The basic structure of the antitrust laws has been in place
for decades. Although there may be a need for targeted reform, I do not
personally perceive a need for a comprehensive overall of the antitrust
laws. Before providing any recommendations concerning any concrete
proposal, I would certainly consult with the President, the Assistant
Attorney General for Antitrust and Members of this Committee, as
appropriate.
capital punishment
Question: As Attorney General, what measures would you take to
reduce the risk of executing innocent people?
Answer: The American justice system is predicated upon the
principle that the law should protect the innocent, providing equal
justice for all. There is no greater injustice than to execute an
innocent person. I will work with the President and the Congress to
help ensure that no innocent person is executed in America and that
capital defendants have access to DNA technology to confirm guilt or
innocence.
Question: Given the high rate of error in capital cases, would you
as Attorney General advocate any changes in the restrictions on
availability of federal habeas corpus relief for death row inmates?
Answer: I believe that there is no greater injustice than to
execute an innocent person, and I will work with the President and the
Congress to help insure a justice system that protects the rights of
all capital defendants.
Question: Last year, Congress passed a Sense of Congress resolution
regarding post-conviction DNA testing and competent counsel.
Specifically, Congress declared that it should condition forensic
science-related grants to States on the States' agreement to ensure
post-conviction DNA testing in appropriate cases. Congress also
declared that it should work with the States to improve the quality of
legal representation in capital cases through the establishment of
standards. Do you agree with this bipartisan Sense of Congress
resolution, and as Attorney General, would you work with me to ensure
that post-conviction DNA testing and competent legal representation are
available in all States?
Answer: I believe that there is no greater injustice than to
execute an innocent person. The Sixth Amendment provides constitutional
protections for the right to counsel for criminal defendants, a right
that is particularly precious in capital cases. I will work with the
President and the Congress to help ensure that no innocent person is
executed in America and that capital defendants have access to DNA
technology to confirm guilt or innocence.
Question: As Attorney General, would you be willing to work with me
to pass the Innocence Protection Act or similar legislation? Our bill
would establish standards for ensuring that lawyers in state capital
cases are experienced and adequately paid. Do you support the
establishment of such standards? Would you agree that a person accused
of any crime who cannot afford a lawyer should be provided competent
counsel, and that the federal government should ensure that States take
the necessary steps to do this?
Answer: I believe that there is no greater injustice than to
execute an innocent person. The Sixth Amendment provides constitutional
protections for the right to counsel for criminal defendants, a right
that is particularly precious in capital cases. I will work with the
President and the Congress to help ensure that no innocent person is
executed in America and that capital defendants have access to DNA
technology to confirm guilt or innocence.
Question: Would you agree with me that the execution of an innocent
person is unconstitutional?
Answer: I think it would be wrong and unconscionable, and, in all
likelihood, unconstitutional as well, as the Supreme Court has itself
suggested in Herrera v. Collins.
Question: As Governor of Missouri, when you reviewed requests for
clemency by a death row inmate, what procedures did you have in place
to assess the inmate's guilt or innocence?
Answer: Each request for clemency was referred to the Missouri
Board of Probation and Parole, a full time five member board of experts
for a full review. Upon receiving the recommendation of the Board, the
Governor's legal counsel reviewed the request and the recommendation
with the Governor for decision.
Question: You have written that you support capital punishment
because it ``saves lives'' by deterring murders. Do you have any
empirical basis for your belief?
Answer: It is my understanding that there are numerous empirical
studies outlining the correlation between capital punishment and
deterrence. However, my beliefs regarding capital punishment would be
irrelevant to how I would perform my job as Attorney General; federal
law provides for capital punishment, and as Attorney General it would
be my responsibility to enforce that law fairly and conscientiously.
Question: During the campaign, President-elect Bush said: ``Any
time DNA evidence, in the context of all the evidence, is deemed to be
relevant in the guilt or innocence of a person on Death Row, I believe
we need to use it.'' Do you agree that DNA evidence should be available
to death row inmates any time that it is deemed to be relevant to the
issue of guilt or innocence? Would you agree that DNA evidence should
also be available to other inmates, such as inmates serving life
sentences?
Answer: I believe DNA evidence has great promise for making our
criminal justice system fairer and more accurate, and would be happy to
work with the President and the Congress to expand its availability to
prosecutors and criminal defendants, especially in capital cases.
constitution
Question: Given the number of constitutional amendments you have
supported, what assurances can you give us that all your energies will
be concentrated on upholding the Constitution rather than implementing
your views of how it might be improved?
Answer: I joined my colleagues in a number of proposed
constitutional amendments. However, those efforts reflect a fundamental
respect for the Constitution and for the mechanism that that document
establishes for altering the text. Indeed, it is precisely because I do
not believe that courts should alter the Constitution that, in the role
of legislator, I joined those efforts to formally amend it. As Attorney
General, my job would be to enforce the law, not to amend it.
Question: In reaffirming Miranda, the Supreme Court found that a
statute that Congress had passed in 1968 to overrule Miranda--18 U.S.C.
3501--was unconstitutional. Will you abide by the court's decision and
decline any reliance on 18 U.S.C. 3501? Would you support repeal of 18
U.S.C.?
Answer: I will fully enforce the law and abide by the court's
decision in Dickerson v. United States. Though I suspect the question
contained a typographical error, as Attorney General I would firmly
oppose the repeal of the entirety of Title 18, which comprises the
federal criminal code. Whether or not the Congress chooses to formally
repeal Title 18, section 3501, as Attorney General, I will enforce the
law as it stands post-Dickerson.
sentencing
Question: Under what circumstances do you support using drug
treatment as an alternative to prison sentences?
Answer: I support the President's proposals for a comprehensive
approach to illegal drugs, including expanded treatment, increased use
of drug courts, and maintenance of drug-free prisons.
Question: Do you believe there is any inconsistency between
Congress' creation of the Sentencing Commission and Congress' continued
willingness to impose mandatory minimums which take away the Sentencing
Commission's discretion? How much discretion do you believe the
Sentencing Commission should be given to set criminal penalties for
offenses?
Answer: The Sentencing Commission is a creature of Congress's
creation, and its authority is subject to subsequent congressional
enactments. It is not inconsistent for the Congress to enact mandatory
minimum sentences while relying on the Commission to set sentencing
ranges above such minimums.
election 2000/voting rights
Question: You are familiar with the Supreme court's December 9 stay
and its December 12 per curiam decision in the recent case of Bush v.
Gore--you made reference to this case in defending your actions as
Governor when you vetoed the voter registration and education
legislation in Missouri. The Supreme Court acknowledged that ``the
problem of equal protection in election processes generally presents
many complexities.'' Where does the ``logic'' of the Court's equal
protection holding go in your view- that is, if it was a violation of
equal protection to evaluate ballots within Florida as ordered by the
Florida Supreme Court in accordance with the standards set by the
Florida legislature and under the supervision of a Florida Circuit
Court Judge, does that suggest that the constitutional right to equal
protection might require national standards for voting and the counting
of votes?
Answer: If confirmed as Attorney General, I will fully and
vigorously enforce the federal voting rights laws, because voting is
fundamental to other rights in America. In so doing, I will examine the
Supreme court's caselaw concerning voting rights, to ensure
faithfulness to binding law. And, I will enforce whatever new voting
rights laws the Congress sees fit to pass in light of Bush v. Gore.
Question: Do you consider that decision of the United States
Supreme Court to be an example of thoughtful and prudent judicial
decisionmaking, judicial activism, or what you have called judicial
despotism?
Answer: As Attorney General, it would not be my role to adjudicate
the thoughtfulness or prudence of Supreme Court decisions. As Attorney
General, I will follow the law.
Question: There is a great deal of bad feeling and division in the
wake of the presidential election contest. Many feel that African-
Americans in large numbers were disenfranchised in Florida, for
example. What do you say to this Committee and to the American people
about actions you would take as Attorney General to overcome that
division and remedy the problems that led to African-American voters'
names being improperly purged from eligible voter lists, their
registrations not being processed, the precincts in which they voted
being inadequately staffed and having outmoded machinery and the other
sources of outrage and concern in the aftermath of the election?
Answer: Voting is a fundamental civil right. If fortunate enough to
be confirmed as Attorney General, I will work to aggressively and
vigilantly enforce federal voting rights laws. It will be a top
priority of a Bush Department of Justice, part of what I would hope
would be its legacy.
Question: The Justice Department is charged with administering
Sections 2 and 5 of the Voting Rights Act. One of the most important
questions facing the Justice Department is whether it should use
adjusted or unadjusted census data in administering the preclearance
provisions of Section 5 and urge courts to do the same under Section 2
of the Voting Rights Act. The U.S. Supreme Court has never questioned
the constitutionality of statistical sampling for purposes of
administering the Voting Rights Act. Do you believe that the Justice
Department should endorse the use of sampled data?
Answer: I have not had the opportunity to examine this legal
question in depth, but any answer I might give would depend solely on a
fair reading of the relevant law and Supreme Court cases. Of course,
Congress has the ultimate authority in determining the proper way for
federal statutes to be administered.
environment
Question: The Clean Air Act, Clean Water Act and other
environmental laws contain citizen suit provisions which allow citizens
to bring enforcement actions, claims for injunctive relief and civil
penalties, against violators when the federal and state government have
failed to do so. The Justice Department has been supportive of citizen
suits in the past. Do you support the citizen suit provisions in these
laws as a mechanism for ensuring compliance with our environmental laws
and do you intend to support them as Attorney General?
Answer: Questions concerning the validity of laws should be
answered only in the context of a specific case or controversy raising
the issue. While it would be imprudent to make a legal determination on
the question now, absent a full and thorough review of the relevant
law, my obligation as Attorney General will be to defend the
constitutionality of duly-enacted federal law, whenever a good faith
and conscientious basis exists for doing so.
Question: Would you agree that the federal government has the right
and the obligation to pursue enforcement of environmental laws to
recover the economic benefit that a company has achieved by violating
environmental laws, punish a violator for delayed compliance with
federal environmental statutes and in order to deter future violations?
Answer: Yes.
Question: Would you agree that enforcement of our federal
environmental laws, and recovery of the economic benefit obtained by
polluters for their violations, is critical to ensuring a level playing
field between the many industries that comply with the law and those
that seek to cut corners and gain economic advantage by failing to
comply?
Answer: Yes, to the extent the law so requires.
Question: Do you agree that the economic benefit a company reaps
via non-compliance with environmental statutes should be the minimum
penalty imposed in enforcement actions in order to level the playing
field between violators and those businesses that comply with clean
air, water and other environmental laws?
Answer: Yes, to the extent the law so requires.
Question: In situations where a violator with facilities scattered
across the country is causing problems in more than one state, for
example, when the steel manufacturer Nucor failed to control the amount
of pollution released from its factories in seven states, do you
believe the Justice Department should pursue a national enforcement
action?
Answer: I believe the federal environmental laws should be fully
and vigorously enforced. With respect to any particular potential
enforcement actions, such as against the steel manufacturer referenced
above, it would be inappropriate for me to comment at this time.
Question: EPA's national enforcement policy is designed to give
states the first opportunity to enforce under their authorized or
approved programs, but in some circumstances, EPA, with the assistance
of the Department of Justice, will file a federal enforcement action
after the conclusion of a formal state enforcement action for the same
violations that arose out of the same nucleus of operative facts when
necessary to protect human health and the environment, to appropriately
address a major repeat violator, and/or to recover a significant
economic benefit. Do you support the practice of ``overfiling'' under
these circumstances, and if not, why not?
Answer: I am not familiar with the details of how such enforcement
actions are conducted, and will have to wait until I can consult at
length with the professional staff in the Department before I can have
an informed opinion.
Question: In 1999, EPA and the Justice Department entered into a
series of ground-breaking consent decrees with the seven largest
manufacturers of diesel engines, requiring the companies to take
several steps to reduce pollution, pay substantial air pollution fines,
and produce engines which met certain emission standards. Despite your
record of aggressively questioning the fundamental regulatory structure
set forth in major environmental laws, such as your co-sponsorship of
the controversial S. 981, the ``Regulatory Improvement Act of 1998,''
if confirmed, would you enforce the 1999 consent decrees?
Answer: I believe the federal environmental laws should be fully
and vigorously enforced. With respect to any particular pending maters,
such as against the consent decrees referenced above, it would be
inappropriate for me to comment at this time.
federalism & states' rights
Question: In June 1999, the Supreme Court issued two decisions in
Florida Prepaid and College Savings Bank that effectively immunized the
States from damages liability for violations of intellectual property
rights. Would you support my legislative effort to restore effective
federal protection for intellectual property as against the States, in
a manner, that avoids any conflict with the Constitution as interpreted
by the US Supreme Court?
Answer: Although I have not studied this issue closely, any
resolution of it must involve a delicate balancing of the needs to
protect intellectual property with the constitutional mandate of
federalism. I look forward to working with the Committee to assist in
ensuring that intellectual property is fully protected in the modern
age, in a manner consistent with the U.S. Constitution.
Question: During your tenure as Governor and in the Senate, you
advocated that reproductive rights and civil rights issues should be
governed at the state level. In fact, you are quoted in a 1999
interview in the Southern Partisan magazine as saying: ``I believe the
Tenth Amendment, which was the capstone of our Bill of Rights, does
appropriately reserve powers to the states, and it is time for
Washington, DC to rediscover this founding principle. . . .'' In the
Senate, you have consistently sponsored, cosponsored and voted for
``tort reform'' legislation that would override state tort law and
limit the jurisdiction of state courts to decide questions of state
law. How do you reconcile your support for federal preemption of state
law and restrictions on state courts when it comes to liability
protection for businesses but not when it comes to protecting civil
rights or reproductive rights for ordinary Americans?
Answer: Federalism is an important constitutional principle which
should be fully honored. The Constitution also explicitly provides,
however, that Congress can ``regulate Commerce . . . among the
several States,'' and many modern tort judgments unquestionably have
national economic impact. As Attorney General, I will support the
President's proposals for comprehensive civil justice reform, fully
respectful of the constitutional dictates of federalism.
Question: You are a strong advocate of the Tenth Amendment as
protecting liberty by preserving States' rights against the Federal
Government. The Ninth Amendment also protects liberty, by preserving
individual rights against the Government. What is your understanding of
the Ninth Amendment?
Answer: There have been few opinions of the Supreme Court
interpreting the Ninth Amendment, but its plain text adverts to the
``rights . . . retained by the people.'' I believe it is incumbent
upon the Department of Justice to enforce the law and protect the
constitutional rights of all Americans.
forfeiture
Question: The Justice Department's ``Equitable Sharing'' program
allows the Attorney General to share federally forfeited property with
participating state and local law enforcement agencies, and has proven
controversial with State legislatures, which are concerned that state
law enforcement uses the program to bypass state laws that require
seizures to be used for other purposes, such as education. Would you
agree that by allowing state authorities to evade their own state laws,
the Equitable Sharing program creates an intolerable intrusion on state
sovereignty? Would you work with me to correct this problem, by
ensuring that property transferred to a state or local law enforcement
agency under the Equitable Sharing program is subject to any
requirement of state law that limits the use or disposition of
forfeited property?
Answer: Although I have not studied this problem closely, I would
be happy to work with you to address any problems in the program in a
way that respects both the needs of law enforcement and the
constitutional demands of state sovereignty.
Question: Under Article IX of the Missouri Constitution, the
proceeds of forfeitures are supposed to be distributed to local school
boards. Yet even after a 1990 Missouri Supreme Court decision found
their actions to be in violation of the state Constitution, Missouri
law enforcement agencies would end-run the constitutional requirement
by bringing seizures to a federal agency for ``adoption.'' Money
returned through the ``Equitable Sharing'' program would go directly to
the Missouri law enforcement agency. As Governor, did you ever indicate
that you would ``look the other way'' should the Missouri police ignore
the state Constitution and Supreme Court decision requiring asset
forfeiture moneys to go to education? Did you ever take steps to stop
this practice, and if so, what steps did you take?
Answer: I am unfamiliar with a number of the facts or assertions
embedded in the question, but I would not suggest to any law
enforcement officer or agency that I would ``look the other way''
should they act contrary to the Missouri Constitution. I would expect
the Missouri State Highway Patrol to act in accordance with any advice
provided by the Missouri Attorney General's office pursuant to a state
Supreme Court decision on this subject. Missouri local law enforcement
agencies are not administratively responsible to state officials or
agencies, but they should act in accordance with legal advice provided
by a county prosecutor or municipal counsel.
freedom of information act
Question: The Justice Department provides agency-wide guidance on
implementing the Freedom of Information Act (FOIA). Janet Reno made
significant reforms in implementing this Act by calling upon agencies
to exercise discretion where possible and to grant requests unless
disclosure would cause actual harm and by making FOIA implementation
part of every employee's job performance evaluation. Would you (a)
consider FOIA enforcement an important part of an Attorney General's
responsibilities; (b) ensure that FOIA activities get adequate budget
allocation at Justice and encourage adequate funds for enforcement of
FOIA at other agencies; (c) support and personally endorse government-
wide training in FOIA responsibilities; and (d) advocate sanctions
against government employees who deliberately withhold records from
FOIA processing?
Answer: Appropriate public access to governmental records is an
important check on arbitrary government action. If I am fortunate
enough to be confirmed as Attorney General, I will fully and faithfully
enforce the Freedom of Information Act and ensure that the Department
of Justice does the same.
civil rights
Question: As Attorney General, would sexual orientation be a factor
in your employment decisions?
Answer: No.
Question: As a Senator, you voted against the Employment Non-
Discrimination Act, a bill that would have prohibited employment
discrimination against gays or lesbians and that failed to pass by a
single vote. Do you believe that the federal government should regulate
relations between employers and employees to prevent discrimination on
any grounds, and if so, can you explain why you believe that
discrimination based on sexual orientation should not be one of those
grounds?
Answer: The federal government plainly has an important role in
preventing discrimination, and it is the Congress's prerogative to
determine the scope of those protections. As Attorney General, I will
fully and faithfully enforce all civil rights laws passed by Congress
and signed by the President.
gun safety
Question: You have referred to Jim Brady, the press secretary for
Ronald Reagan who was nearly killed in John Hinckley's assassination
attempt, as ``the leading enemy'' and ``the number one enemy'' of gun
owners. Do you regret using such intemperate language to describe a
person with whom you have policy differences?
Answer: I have deep respect for Jim Brady both as a public servant
and for the incredible trauma that he has endured as a result of his
faithful service to the Nation. I have, however, disagreed with some of
the policy prescriptions that Mr. Brady has advocated. However relevant
my policy views may have been to my role as a legislator, as Attorney
General, I will fully and faithfully enforce the federal gun laws.
Question: Do you believe that existing gun laws are not strictly
enforced and, if confirmed, how would strengthen enforcement of
existing gun laws and prioritize this issue?
Answer: I believe that there is room for substantial improvement
with respect to enforcement of the current gun laws. The President has
explained that he wishes to give prosecutors the resources they need to
aggressively enforce our gun laws and provide more funding for
aggressive fun law enforcement programs such as Texas Exile and Project
Exile in Richmond, Virginia. I will fully support the President's
agenda in this area.
Question: In September 1998, when you chaired a subcommittee
hearing on the intent of the Second Amendment, you stated: ``I believe
it is time that we once again recognize the Second Amendment for what
it is. It is a protection of individual liberty.'' Given your view of
the Second Amendment, do you believe that all gun control laws are
unconstitutional? As Attorney General, would you urge the Supreme Court
to accept your interpretation of the Second Amendment?
Answer: I do not believe that the Second Amendment prohibits
common-sense gun control measures, and if confirmed, as Attorney
General I will vigorously defend federal gun control statutes passed by
Congress whenever there is a good-faith and conscientious basis for
doing so.
Question: In the case of United States v. Emerson, a criminal
defendant is challenging his indictment for possessing a gun while
under a domestic violence restraining order. He argues that the federal
law violates the Constitution. The Justice Department is currently
defending the constitutionality of that federal law on appeal before
the Fifth Circuit. Will you commit to continuing the defense of that
law?
Answer: I am not familiar with the details of this case. As a
general matter, however, I will defend the constitutionality of any Act
of Congress that does not implicate executive authority and for which a
reasonable defense can be mounted. Although I have not reviewed the
details of this case and my final determination would require that
review and a consultation with the Department of Justice officials
handling the case, I have no reason to believe that the Department
would not continue to defend the constitutionality of the Act of
Congress at issue in this litigation.
Question: What current gun control restrictions would you like to
see relaxed or eliminated? As Attorney General, would you use your
influence to encourage such changes?
Answer: The President has explained that he would support
legislation to allow active and retired law enforcement officers to
carry concealed weapons. If confirmed, I will fully support the
President's position on this issue.
immigration
Question: Are there any aspects of the 1996 Illegal Immigration
Reform and Immigrant Responsibility Act that you would support
changing? Please explain.
Answer: I have not examined the provisions of the 1996 legislation
closely, but am aware that many people have raised a number of
potential issues resulting from that legislation. If confirmed, I will
study these issues carefully and work with the President and Congress
to develop any reforms that might be needed to make the immigration
laws fairer, more effective, and more humane.
Question: Would you support giving veterans of our armed forces an
individualized hearing before being deported for relatively minor
criminal offenses? Would you support giving other long-term residents
of the United States individualized hearings before they are deported
for similar offenses?
Answer: I believe that every individual appearing before our courts
of law should be accorded the full protections of Due Process.
Question: Under the current expedited removal system, also adopted
in 1996, there is strong evidence that aliens fleeing religious,
political, or other forms of persecution may be summarily returned to
their native countries without ever even appearing before an
immigration judge. As Attorney General, would you be willing to conduct
a review of this program?
Answer: Yes.
impeachment
Question: In September 1998, you issued a statement calling upon
Democratic candidates for office not to accept fundraising assistance
from President Clinton, saying that ``[t]o entangle campaign fund-
raising with impeachment is bad for public confidence.'' You also said:
``In an impeachment proceeding, the constitutional role of Senators is
to sit as jurors on impeachment articles voted by the House of
Representatives. The public must have high confidence in the fairness
of the proceedings.'' You issued the statement despite the fact that
only a month before, your Spirit of America PAC had rented its donor
list to the Paula Jones Legal Defense Fund, thus profiting from the
very woman whose lawsuit gave rise to impeachment proceedings. Then,
your PAC proceeded to rent your donor list to the Linda Tripp Legal
Defense Fund on February 9, 1999, three days before your vote to
convict President Clinton on both impeachment counts. Your PAC received
additional payments from the Tripp fund in April and May of 1999.
(a) Do you believe that renting the lists to figures with such a
vested interest in the conviction of President Clinton was appropriate
given your status as a juror?
(b) Do you believe that renting your PAC's donor lists to these two
legal defense funds while impeachment proceedings were in progress was
``bad for public confidence? ''
Answer: These donor lists were rented without my knowledge or
approval. Once I became aware that the list had been rented to these
organizations, I directed that the lists no longer be rented to these
organizations.
international criminal court:
Question: Putting aside the merits of the International Criminal
Court, or whether the United States should ratify the treaty, on what
did you base your conclusion in your 1998 Southern Partisan magazine
interview that the treaty establishing the International Criminal Court
``would make withholding of an abortion a crime against humanity,''
when the treaty defines ``forced pregnancy'' to mean ``the unlawful
confinement of a woman forcibly made pregnant, with the intent of
affecting the ethnic composition of any population or carrying out
other grave violations of international law'' and excludes ``national
laws relating to pregnancy''?
Answer: I do not recall the specific basis for that statement. As
part of my duties on the Senate Foreign Relations Committee, I had
heard concerns that despite efforts to define the term, the concept of
a ``forced pregnancy'' had sufficient elasticity to prompt legitimate
concerns about whether such a prohibition should be included in a
treaty, which would become the law of the land. Whatever my views as a
legislator, however, I will enforce the law of land.
legal services corporation
Question: In 1995, you voted in favor of a motion offered by
Senator Phil Gramm to eliminate the Legal Services Corporation, which
provides legal assistance for the poor.
(a) Do you still believe that the Legal Services Corporation should
be eliminated?
(b) As Attorney General, would you encourage or assist in any way
efforts to eliminate or reduce funding for the Legal Services
Corporation?
Answer: President Bush has indicated that the Legal Services
Corporation should be maintained, but reformed to re-focus on its
original mission of providing legal aid to those in need. I will
support and promote the President's position on this issue.
desegregation
Question: The Bush transition team has tried to bolster your record
on appointments of minorities while you were Governor and stated that
out of 70 judges you appointed, 11.4 percent were African Americans.
But this figure does not include the 51 interim judicial appointments
you made as governor. Is that correct?
Answer: There were 70 panels of 3 individuals submitted by the
appropriate commission for appellate and trial court vacancies
presented to me as Governor under Missouri's nonpartisan court plan.
There was only one African-American candidate who was not then or later
appointed by me to a current or subsequent judgeship. In effect, 8 out
of 9 available minority candidates were appointed from these panels,
including the first African American on the Missouri Court of Appeals
and the first African American woman on the St. Louis County Circuit
Court. These appointments are for life, with retention votes every 12
years.
For counties outside of the nonpartisan court plan, 21 judges were
appointed to vacancies until the next election, none of whom were
African-American. However, our research has found no minority members
of the Missouri Bar who expressed an interest in or were available (by
virtue of residency) for any of these vacancies for these out-state
judgeships (which must stand for election every 4 years for an
Associate Circuit Judge, and 6 years for a Circuit Judge). These
appointments are for as short as 30 days and as long as several years
until the next election.
Question: When you ran for governor in 1984, you made political use
of the fact that you were nearly subject to contempt of court from a
federal judge, stating ``Ask Judge Hungate who threatened me with
contempt.'' As U.S. Attorney General, would you use threats of contempt
against the Justice Department for political purposes? Do you believe
that as a political leader and sitting Attorney General of Missouri, it
was in any way divisive or inappropriate to politicize the
desegregation issue in this fashion? Does it not disturb you then that
a federal court said you had ``voluntarily rode the [desegregation
litigation] to political prominence''?
Answer: If confirmed as Attorney General, I would obviously hope to
avoid any threats of contempt, and would not use any legal proceedings
for political purposes. It is not accurate that I ``politicized''
desegregation in Missouri; to the contrary, I urged continued fealty to
the rule of law in the face of strong political pressure by other
elected officials to do otherwise. Finally, it is not unusual for a
court to criticize litigants who appear before it; like other
litigants, I take no pleasure from such criticism.
affirmative action
Question: The United States District Court for the Eastern District
of Michigan ruled in a case challenging the use of affirmative action
by the University of Michigan that ``diversity constitutes a compelling
governmental interest in the context of higher education justifying the
use of race as one factor in the admissions process.'' (2000 WL
1827468).
The United States filed a brief on behalf of the University of
Michigan in this litigation. Do you agree that diversity constitutes a
compelling governmental interest justifying the use of race as a factor
in admissions, or would you recommend that the Bush Administration
switch sides and support the plaintiffs in appeal of the court's
judgment?
Answer: If confirmed as Attorney General, I will firmly oppose
racial discrimination in all its forms. It would, however, be imprudent
of me to comment on the particulars of the Michigan case without first
conducting a full and fair review of the facts and law surrounding that
case. If confirmed, I pledge that no decision will be made absent such
a thorough review.
Question: As Attorney General, would you support the use of Title
VI of the Civil Rights Act to prevent universities and colleges that
receive Federal funds from considering race in admissions?
Answer: If confirmed, I commit to you that any decision that I make
will be law-oriented, not results-oriented. This is true with respect
to Title VI, as it is with all other laws. Thus, I pledge that any
decision made with respect to Title VI will me made only after a full
and fair review of that law. Not having had an opportunity to conduct
such review with the benefit of the full learning of the Department of
Justice on this question, I believe that it would be imprudent for me
to comment further on that statute.
Question: In the Bakke case, the Supreme Court allowed universities
to consider race in their admissions processes. Do you consider Bakke
to be the law of the land, which you would be sworn to uphold? Do you
consider it settled law?
Answer: The Bakke decision must be viewed in light of the many
decisions on related matters that the Supreme Court has handed down in
the past two decades. Of course, the Supreme Court is the ultimate
arbiter of constitutionality, and, unless the Court decides otherwise,
Bakke remains the law of the land.
Question: Would an Ashcroft Justice Department consider any use of
race permissible in the educational context?
Answer: Yes.
Question: At the confirmation hearing for Bill Lann Lee in October
1997, you asked Mr. Lee about the Supreme court's decision in Adarand,
which held that federal racial classifications must serve a compelling
governmental interest, and must be narrowly tailored to further that
interest. In particular, you asked Mr. Lee whether, in his opinion, any
of the current federal race-conscious programs could survive the strict
scrutiny test of Adarand. Let me ask you a similar question. Are there
any current federal race-conscious programs that you think are not
constitutional under Adarand, and if so, would you defend the
constitutionality of these programs if you are confirmed as Attorney
General?
Answer: It is likely that some federal race-conscious programs are
not constitutional under Adarand. Indeed, my recollection is that even
Mr. Lee identified one such program. That being said, it is the
longstanding policy of the Department of Justice to defend any federal
law for which a reasonable and conscientious defense can be raised. If
confirmed, I will enforce this policy in the area of racial set-asides,
as in all other areas.
Question: What qualities would you advise President-elect Bush to
seek in an Assistant Attorney General for Civil Rights? Should that
person have direct experience in the civil rights field? Is it your
view that the Assistant Attorney General for Civil Rights should take
the position that all forms of federal preferences based on race fail
Adarand's strict scrutiny test?
Answer: When he nominated me as Attorney General, the President
asked me to give all advice to him and to him alone, and that is a
commitment I believe I should honor. As a general matter, however, I
believe an Assistant Attorney General for Civil Rights should be a
person committed to fully and fairly enforcing the Nation's civil
rights laws. That person should also, in my view, have some experience
in the field of civil rights, a commitment to the rule of law, and a
genuine passion for protecting the rights of the disadvantaged.
Question: As Attorney General, you would be responsible for
offering opinions to all federal departments and agencies concerning
the scope of federal law. If confirmed, what advice would you give the
Department of Transportation and other federal offices regarding the
use of affirmative action in their employment, contracting, and other
activities?
Answer: When he nominated me as Attorney General, the President
asked me to give all advice to him and to him alone, and that is a
commitment I believe I should honor. That same principle should apply
to legal opinions delivered to Executive agencies. As a general matter,
however, I believe that any federal affirmative action program can be
assessed only in the context of the facts and circumstances of its
application. If confirmed as Attorney General, I would to defend any
federal affirmative action program for which a reasonable and
conscientious defense can be raised.
Question: Congress has reauthorized the Disadvantaged Business
Enterprise Program since the Adarand decision, adopting the view that
it was sufficiently narrowly tailored to survive ``strict scrutiny.''
You took the view that ``[g]overnment programs which are officially
sanctioned and administered, to discriminate against any American on
the basis of that citizen's race should be ended, starting with [the
DBEP].'' As Attorney General, would you vigorously defend all federal
affirmative action programs before the Supreme Court and the lower
courts? Would you consider instituting lawsuits to attack the
constitutionality of state and municipal government affirmative action
programs?
Answer: If confirmed as Attorney General, I would adhere to the
Department of Justice's longstanding policy of defending every federal
law for which a reasonable and conscientious argument can be made. I
would apply this policy to affirmative action programs, as all other
programs. With respect to issues related to state and municipal
affirmative action programs, I will review those programs, as all
others, on a case-by-case basis consistent with the law.
Question: In the late 1980s, when you were governor of Missouri,
you served on the Commission on Minority Participation in Education and
American Life, yet declined to sign the report, which found that ``in
education, employment, income, health, longevity, and other basic
measures of individual and social well-being, gaps persist--and in some
cases are widening--between members of minority groups and the majority
population.'' At the time, you said that the report's ``generalizations
about setbacks in progress are overly broad and counterproductive.''
Did you believe then that there were gaps in education, employment,
income, health, longevity, and other basic measures of individual and
social-well being between minority and non-minority Americans? If so,
do you believe there are still such gaps, and as Attorney General, what
steps would you take to address those gaps?
Answer: Yes, such gaps do exist. Indeed, the President has spoken
movingly about the ``soft bigotry of low expectations,'' and the dual
societies it creates. As Attorney General, I will fully and fairly
enforce all federal laws addressing civil rights and other related
issues.
Question: A spokeswoman for President-elect Bush's transition has
stated that you believed that the report produced by the Commission on
Minority Participation in Education and American Life ``addressed the
plight of some minorities, but it didn't address all minorities.'' Is
that why you withheld your support for it, and if so, what minorities
do you believe the report failed to address?
Answer: As I recall, the reason cited is one among several reasons
why I did not sign the report. While I do not have a full recollection
of the concerns that I had in the late 1980's, I believe it is
incumbent upon leaders to expand educational opportunities for every
American, no matter his or her circumstance.
Question: When asked by Southern Partisan magazine about the
disciplining of a student who had a Confederate flag on her knapsack,
you said: ``The right of individuals to respect our history is a right
that the politically correct crowd wants to eliminate, and that is just
not acceptable.'' Do you support or oppose the efforts to disestablish
Confederate symbols in Mississippi, Georgia, and South Carolina?
Answer: The State of Missouri does not fly the Confederate flag,
and I do not believe that it should. I believe we should all be
vigilant in working to promote a more racially tolerant society for
everyone.
religion/charitable choice
Question: In 1998, you told the Christian Coalition: ``A robed
elite have taken the wall of separation built to protect the church and
made it a wall of religious oppression.'' Please state which Supreme
Court decisions, if any, that you believe have enacted ``religious
oppression.''
Answer: The First Amendment's balance between protected free
exercise of religion, and forbidden establishments of religion, is a
difficult one. Many have expressed both agreement and disagreement with
the Supreme court's decisions in this area. As Attorney General, I will
enforce the law, as interpreted by the Supreme Court of the United
States.
Question: As Governor of Missouri, you did not support laws to
ensure that federally-funded church-run day-care centers would be
required to meet basic health and safety requirements, such as smoke
detectors, fire exits and minimum staffing requirements, that applied
to all other day-care centers, public and private to protect the safety
of the children, and, instead, publicly opposed and threatened to veto
them. Can you explain why, and can you tell us what standards you would
apply as Attorney General when it comes to balancing issues like
children's safety with the autonomy of federally-funded religious
organizations in the context of Charitable Choice programs?
Answer: As Governor of Missouri, I often faced the difficult
question of how to balance the need for important health and safety
regulations against the need to protect religious institutions from
excessive entanglement with government. This need for balance guided
the decisions that I made as Governor. If I am fortunate enough to be
confirmed as Attorney General, I will enforce this balance consistently
with the Supreme Court caselaw on the matter.
Question: As Attorney General, one of your most important duties is
to provide legal counsel to the other branches of the Federal
Government on how to abide by their constitutional duties. Would you
advise other Government departments to comply fully with all aspects of
the Establishment Clause as interpreted by existing Supreme Court
precedent?
Answer: I can assure you that I will fully advise all federal
government officials of the state of Supreme Court case law and the
implications of any decision that they make with respect to such case
law. I do not think it appropriate, however, to disclose publicly in
advance the substance of any specific advice that I may or may not
give.
Question: As Attorney General, which of the Supreme court's
religion decisions would you request the Court to overturn?
Answer: As Attorney General, I do not believe it would be
appropriate to seek the reversal of any Supreme Court decisions in a
vacuum. As cases arise, I will, if confirmed, thoroughly review the law
and facts of each and every one, and determine what positions of
advocacy are consistent with the law and in the best interests of the
United States. I will apply this approach to religion cases, as well as
to all other cases.
Question: As Attorney General, would you intervene on behalf of
local school districts seeking to revisit the Supreme court's decision
last year in Santa Fe Independent School District v. Doe, 530 U.S. 290
(2000), which held that a school district's policy of permitting
student-led and student-initiated prayers prior to football games
violated the Establishment Clause?
Answer: If confirmed, I can assure you that I will approach all
prospective cases in the same manner: I will evaluate the law and facts
of each case, and make a judgment on which position of advocacy is
consistent with the law and in the best interest of the United States.
That being said, it would be imprudent for me to comment on a
particular case not having had the benefit of the Department of
Justice's full learning on that case.
Question: As Attorney General, would you ask the Supreme Court to
revisit Edwards v. Aguillard, 482 U.S. 578 (1987), which held that it
was unconstitutional for a State to forbid the teaching of evolution
unless it was accompanied by teaching of ``creation science?'' Do you
agree with the court's decision in that case? Were you in part
referring to that case when you told the Conservative Political Action
Conference Annual Meeting in 1997 that ``Over the last half century,
the federal courts have usurped from school boards the power to
determine what a child can learn?'' What other cases were you referring
to in that statement?
Answer: As Attorney General, I do not believe that I would have the
authority to ask the Court to simply revisit a prior decision outside
the context of a specific case. Moreover, a decision as to which
arguments to advance in such a case cannot and should not be made
independent of the factual circumstances and legal question raised in
the case. Thus, it would be imprudent for me to commit to advancing or
not advancing a particular argument outside the context of a specific
case. As to the federal courts' voluminous decisions in this area--
rendered at all levels of the federal judiciary--many individuals have
commented both favorably and unfavorably on these decisions. I cannot
specifically recall which of the numerous federal court decisions in
this area were encompassed by the quote that you referenced.
busalacchi case
Question: When you were Governor, Mr. Busalacchi's daughter was
severely injured in a car crash when she was in high school, and
according to written testimony submitted by Mr. Busalacchi, her doctors
told him that she would remain in a persistent vegetative state for the
remainder of her life. When Mr. Busalacchi sought to move his daughter
from Missouri to Minnesota, the Ashcroft Administration obtained a
restraining order preventing Mr. Busalacchi from removing her from the
state and launching a two-year battle seeking to prevent Mr. Busalacchi
from making determinations about his daughter's medical treatment.
According to an editorial in the St. Louis Post-Dispatch in December
1990, Mr. Busalacchi ``came to the Missouri Center to move his daughter
to Minnesota. He was met by an administrator, two state troopers and a
sheriff's deputy.'' Mr. Busalacchi has testified that you, through your
administration, injected your ``political and religious views into
[his] family's tragedy.'' Do you believe that your administration's
actions in the Busalacchi matter showed a proper respect for Mr.
Busalacchi's moral and constitutional rights as a parent?
Answer: Yes.
Question: As U.S. Attorney General, would you advocate preventing
the families of patients in federally-run medical facilities from
making their own determinations whether to continue feeding their loved
ones who had no hope of regaining consciousness?
Answer: As Attorney General, I would enforce any and all federal
statutes on this issue.
special protection for industries and tobacco
Question: Why did you change your position from advocating
increases in cigarette taxes to reduce smoking and improve the health
of Missourians as a Governor to opposition of higher cigarette taxes as
a Senator and potential presidential candidate?
Answer: As a non-smoker, I believe that smoking is a bad and
dangerous habit, and that all appropriate measures should be taken to
discourage its use. At the same time, in my role as a legislator and
governor, it has always been my view that the tax code should be as
simple and fair as reasonably possible. The positions that I have taken
over the years, all of which are not relevant to what my role would be
as Attorney General, are, I believe, fully consistent with these
principles.
Question: In 1998, you voted in support of the Gregg-Leahy
amendment to strike all special legal protection for the tobacco
industry during the debate on national tobacco control legislation. In
the last Congress, however, you sponsored legislation to provide
asbestos manufacturers with special legal protection, cosponsored
another bill to provide small businesses with special legal protection
and voted for a third bill to provide special legal protection to the
high-tech industry for year 2000 liability. What has been your standard
as a Senator for determining when an specific industry deserves special
legal protection from Congress, and, as Attorney General, will you
advocate that any specific industry deserves special legal protection?
Answer: As Attorney General, I will enforce all laws enacted by
Congress. This duty is separate and independent from any actions that I
took as a Senator. As a Senator, I evaluated each piece of legislation
in its totality, and attempted to make a determination on whether a
piece of legislation was, on the whole, good or bad public policy.
Question: Career prosecutors at the Department of Justice filed a
lawsuit against the tobacco industry to recover smoking-related health
care expenditures, alleging that by concealing and deceiving consumers
of health risks of their tobacco products for the past forty years the
tobacco industry engaged in a pattern of racketeering activity under
the Racketeer Influenced and Corrupt Organizations Act (RICO). As
Attorney General, would you support or oppose the Department of
Justice's lawsuit against the tobacco industry?
Answer: I assure you that any decision that I make on this lawsuit
will come only after a full and fair consultation with the appropriate
officials in the Department of Justice. Absent such consultation,
however, it would be imprudent for me to comment on the merits of this
case.
Question: In constituent letters to Missourians, you have written
that you are ``concerned that the DOJ lawsuit could set an unwise
precedent leading to the federal government filing lawsuits against
countless other legal industries.'' Do you believe the federal
government has a role in seek redress for the alleged misconduct by the
tobacco industry?
Answer: Yes, if the facts and the law so warrant.
Question: Do you believe that the tobacco companies deceived the
American public about the risks of death and disease from using their
tobacco products? Do you believe that the tobacco companies marketed
their products to children? Do you believe that the tobacco companies
exploited the addictive nature of nicotine in their products? Would
these personal views influence any decision that you may make on
continuing the Department of Justice lawsuit against the tobacco
industry if you are confirmed as Attorney General?
Answer: Any decision that I make regarding any litigation,
including the tobacco litigation, will be based on a thorough view of
the facts and law pertaining to that case. As I said during the
hearing, I will be law-oriented, not results-oriented. In light of
this, it would be imprudent for me to comment on the specific facts of
the tobacco suit without having the benefit of the Department of
Justice's full learning on this question.
``takings'' legislation
Question: In 1998, you supported ``taking'' legislation reported by
this Committee on a 10-to-8 party-line vote which would take away power
from mayors, local planners, city councils and local zoning boards over
local land use. As Attorney General, would you stand with most of the
Nations' governors, mayors, city officials and towns in opposing it?
Answer: As Attorney General, I would enforce such legislation if
enacted.
Question: In Williamson County Regional Planning Comm'n v. Hamilton
Bank, 473 U.S. 172 (1985), the Supreme Court declared that in a takings
challenge to state or local action, no violation of the Takings Clause
occurs until the landowner seeks and is denied compensation in state
court. Do you agree with this analysis of the Takings Clause?
Answer: The Supreme court's decision in Williamson was a
significant one, and one which, I believe, is now the law of the land.
As Attorney General, I will abide by this decision as well as all
others.
victims of crime
Question: Do you think that while Congress considers the merits of
a constitutional amendment on victims rights that it should, at the
same time, be considering legislative measures to benefit victims, such
as the Crime Victims Assistance Act, which I introduced with Senator
Kennedy in the last Congress?
Answer: I believe that it is important to consider various ways to
protect the rights of crime victims. I am, however, no longer a member
of Congress, and so would not presume to instruct the Congress on what
legislative measures it is appropriate for it to consider or not
consider.
Question: The Clinton Administration supported the idea of a
victims' rights amendment to the Constitution, but only if it preserved
the fundamental constitutional rights of those accused of crimes.
Senator Feingold has offered amendments to the proposed constitutional
amendment that would expressly preserve the rights of the accused,
which as a Senator, you voted against. What position would you take as
Attorney General, and why?
Answer: As Attorney General, I would fully and fairly enforce
whichever constitutional amendment was duly enacted in accordance with
the Constitution.
bankruptcy
Question: During the debate on the Bankruptcy Reform Act in the
last Congress, you voted to support the Schumer-Leahy Amendment to end
abusive bankruptcy filings used to avoid the legal consequences of
violence, vandalism, and harassment to deny access to legal health
services. Do you agree that any fair and balanced bankruptcy reform
bill must include provisions to prevent the discharge of penalties for
violence against family planning clinics, as the Schumer-Leahy
Amendment did in the last Congress?
Answer: As a Senator, I supported and voted for the Schumer-Leahy
Amendment. Ultimately, however, it is up to the Congress, of which I am
no longer a member, to make these policy judgments.
follow-up from hearings
Question: You testified on Wednesday that you ``probably should do
more due diligence'' to answer the question whether Southern Partisan
magazine is a racist organization. Have you since done further due
diligence? If so, do you now believe that Southern Partisan magazine is
racist and if so, would you like to take this opportunity to apologize
for your association with it?
Answer: I reject racism in all it forms. I find racial
discrimination abhorrent, and against everything that I believe in. If
the allegations about Southern Partisan magazine are true, then I
emphatically reject it as a racist publication.
Question: When asked about your actions in connection with the
nomination of James Hormel to be Ambassador to Luxembourg, you
testified that you ``had known Mr. Hormel for a long time. He had
recruited me, when I was a student in college, to go to the University
of Chicago Law School.'' Please list for the Committee any
conversation, meeting, or other contact you recollect having with Mr.
Hormel, while you were a law student or afterwards, as well as any
other evidence you would like to provide to support your testimony that
you ``had known Mr. Hormel for a long time.'' In addition, please list
for the Committee any conversations, correspondence, or other contact
you had with Mr. Hormel when you were a student in college that you
believe can fairly be defined as ``recruiting.''
Answer: As I explained during the hearing, I have known Mr. Hormel
for many years, dating back to my days in law school. I have, however,
not kept a detailed record of every contact that I have had with Mr.
Hormel.
Question: Please provide the Committee with a detailed list of the
facts on which you based your claims regarding Judge White's record.
Answer: I based my claims concerning Judge White's record on his
record as a Missouri Supreme Court judge. That record consists of Judge
White's published opinions, which are all available in the published
case reporters and on-line. Those published opinions provide a detailed
recitation of the relevant law and facts in those cases. My claims were
based on those cases.
Responses of the Nominee to questions submitted by Senator Mikulski
Question: (A) Do you intend to be a watchdog on civil rights? How
will you be a watchdog?
Answer: Yes. As I said during the hearing, no American should be
turned away from a polling place because of the color of her skin or
the sound of his name, or denied access to public accommodations or a
job because of disability, or prevented from owning a home in the
neighborhood of his choice because of skin color, or denied an
educational opportunity because of race or sex, or fear being stopped
by police because of race. I will vigorously enforce the civil rights
laws in order to ensure that no American suffers the indignity of
unlawful discrimination.
Question: (B) I have looked into your record as an executive, both
as Attorney General and Governor in the State of Missouri. Can you
explain why, as governor of Missouri in 1988, you vetoed the Voter
Registration Reform Bill that would have increased minority voter
registration in the city St. Louis, when it was precisely the same type
of voter registration that was already taking place in St. Louis
county?
Answer: My votes on this matter were fully explained in my veto
messages, which I read into the record during the hearing.
Question: (C) As a senator, you have voted against expanding the
Hate Crimes Prevention Act. As Attorney General, how do you intend to
enforce the Hate Crimes Statute?
Answer: If confirmed, I will fully enforce any law that Congress
passes, and defend the constitutionality of any law for which a
reasonable and conscientious defense can be made. These standards apply
to the Hate Crimes Prevention Act, as well as any other legislation
that Congress chooses to enact.
Question: (D) You have said, `` [i]f I had the opportunity to pass
but one single law, I would. . . ban every abortion except for those
medically necessary to save the life of the mother.'' (Human Events,
newsletter). Can you provide assurance that you will enforce existing
laws protecting a women's right to choose, and that you will
investigate and prosecute those individuals or groups who have targeted
for assassination providers of legal abortion services?
Answer: Yes. I will fully and vigorously enforce the law.
Responses of the Nominee to questions submitted by Senator Lincoln
Question (A): Arkansas experiences difficulty in recruiting
physicians and other qualified medical professionals to work in rural
communities, and she is interested in learning more about your decision
as Attorney General of Missouri to intervene in Sermchief v. Gonzales
and State of Missouri (660 S.W.2d 683). This case was an attempt to
prohibit qualified nurses with advanced training from providing
necessary and routine gynecological services to thousands of
underprivileged female patients in your state. These services included
conducting breast and pelvic examinations, performing PAP smears and
providing information about effective contraceptive practices. Since we
firmly believe that residents in rural areas should have access to the
same specialized medical services that are available to residents who
live in urban communities, as Attorney General, how can we be assured
that you will not take similar steps to prevent appropriately trained
medical professionals from doing their job, even if you personally
disapprove of the service or services being provided?
Answer: I agree with you that making medical services uniformly
available throughout a state, including rural areas, is an important
goal. In the Sermchief litigation, the Attorney General's office
participated on both sides of the case. The office filed one amicus
brief under my name on behalf of the State Nursing Board that urged a
broad and uniform construction of the relevant statutory provisions.
This position, which is similar to the position ultimately adopted by
the Missouri Supreme Court, would facilitate the availability of
uniform nursing services throughout the State. The office also filed a
brief as amicus/intervenor addressing a single issue on the other side
of the case. The appellants argued for a construction of the statute
that would permit nurses to provide a broad array of nursing services
and that if the statute did not bear such a construction then the
statute would be unconstitutionally vague. The brief as amicus/
intervenor took no position on the first issue, but did defend the
Missouri statute against the attack that it was unconstitutionally
vague. The Missouri Supreme Court accepted the appellants' statutory
construction argument and so never reached the vagueness question.
Question (B): We have a profound respect for our system of
government and the careful balance of power our founding fathers
established in the Constitution. Furthermore, we believe that public
officials have a responsibility to discharge their duties in a way that
recognizes the vital role each branch plays to ensure those we
represent have confidence in the framework we, as public officials, are
sworn to uphold and defend. We raise this issue because of comments you
have reportedly made about Supreme Court Justices as well as decisions
rendered by that court. In one case you asserted that a decision by the
Supreme Court was ``illegitimate.'' In addition, other statements
attributed to you suggest that you view the role of constitutional
interpretation by the Supreme Court as merely a matter of individual
justices ``chang[ing] their mind'' or imposing their personal policy
judgements on the nation. In light of the responsibilities that will be
entrusted to you if confirmed as Attorney General, please clarify what
you mean when you say a decision by the Supreme Court is
``illegitimate.'' Is an ``illegitimate'' ruling by the Supreme Court,
in your view, the law of the land? In addition, do you think public
criticism of the Supreme Court and justices who sit on that court would
be appropriate in your role as Attorney General?
Answer: Any decision rendered by the United State Supreme Court is
the law of the land. Nevertheless, public commentary on the actions of
the Supreme Court is healthy in a democracy. As Attorney General, any
comments that I make with respect to Supreme Court will be made with
the utmost respect. And it will be my solemn duty to follow and enforce
the law as interpreted by the Supreme Court of the United States.
Question: Senator Lincoln witnessed racial integration as a young
elementary school student in Helena, Arkansas, and has a strong
commitment to ending racial injustice, especially in our system of
public education. While respecting whatever personal views you may have
on school desegregation programs in general, why did you take
extraordinary steps as Attorney General of Missouri to fight the
implementation of a voluntary desegregation plan in St. Louis?
According to the record in this matter, you unsuccessfully appealed the
issue of ``remedial scope'' in Liddell v. State of Missouri multiple
times to the same court, presumably because you hoped to receive a
different response. While bringing multiple appeals in a particular
case in itself isn't necessarily a cause for concern, under what
circumstances do you think it is a legitimate use of public resources
to bring multiple appeals before the same court on a particular issue
when your initial appeal is rejected? Once a court has ruled on an
issue and you have exhausted your appeals before higher courts, you
accept the decisions rendered in the case and move on. Is that your
view as well, or was there something different about the St. Louis case
that justified your vigorous actions over several years to prevent
implementation of the desegregation plan in that matter?
Answer: I fully agree that segregation is wrong and
unconstitutional. I strongly support integration in all our nation's
schools. My actions in this case reflected my obligation as the state
attorney general to defend my client in the litigation, and each appeal
represented a separate, appealable legal issue, not an attempt to
relitigate already decided issues. Indeed, Missouri's current attorney
general, a Democrat, has pursued a similar course of litigation
representing the state of Missouri. And I of course agree that once the
court has ruled, one must accept the court's ruling, subject, of
course, to any right of appeal. Indeed, in Missouri, I repeatedly had
to urge fealty to rule of law in the face of political pressure to do
otherwise from other elected officials.
Responses of the Nominee to questions submitted by Senator Levin
Question (A): You made a number of strong statements in your speech
to the Senate of October 4, 1999 in opposition to the nomination of
Judge Ronnie White. You said that Judge White ``has been very willing
to say: We should seek, at every turn, in some of these cases to
provide an additional opportunity for an individual to escape
punishment.'' Do you believe that is a fair characterization of Judge
White's record?
Do you believe it is fair to say that Judge White's opinions are
``procriminal'' and that he will ``push law in a procriminal
direction'' and that he practices ``procriminal jurisprudence?"
Do you believe it is fair to say Judge White's ``opinions, and
particularly his dissents, reflect a serious bias against a willingness
to impose the death penalty''? (Given the apparent fact that Judge
White's average for upholding death penalty cases is 70 percent, and
the averages of your own appointees to the Missouri Supreme Court
closely mirrors his, ranging from 75 to 81 percent.)
Answer: I stand by my criticisms of Judge White's voting record in
death penalty cases. By my count, Judge White dissented in
approximately 11.6 percent of death penalty cases, in comparison of
rates of 1.2-2.6 percent for judges that I nominated to the bench when
governor. In my view, Judge White would not have been an appropriate
choice for the federal district court, where his decisions alone could,
in habeas cases, reverse the judgment of the entire Missouri Supreme
Court.
Question (B): A Washington Post article of January 1, 2001, reports
that your aides ``now acknowledge that they initially spread the word
about White to law enforcement groups.'' Is that an accurate quote and,
if so, how is that consistent with your statement to the Senate of
October 4, 1999, that law enforcement ``decided to call our attention
to Judge White's record in the criminal law? ''
Answer: It is altogether possible, indeed likely, that my staff had
contact with constituents that had an interest in Judge White's
nomination. This is, however, perfectly normal, and fully consistent
with my statement quoted above.
Question (C): What is the ``personal political agenda'' that you
said in your Senate statement of October 4, 1999, that Judge White
would have advanced as a federal judge?
Answer: My criticism of Judge White was based primarily upon his
decisions in death penalty cases. My recollection is that the statement
to which you refer addressed Judge White's views in the area of the
rights of criminal defendants.
Question (D): You stated in your Senate statement of October 4,
1999, that Judge White has ``written or joined in three times as many
dissents in death penalty cases?'' To what numbers are you referring?
Answer: By my count, Judge White dissented in approximately 11.6
percent of death penalty cases. In contrast, Judges that I nominated to
the bench dissented in approximately 1.2-2.6 percent of death penalty
cases.
Question (E): Is it reasonable for an African-American facing trial
to seek recusal of a judge who five days before trial made highly
inappropriate, derogatory comments about African-Americans? If so, is
it fair to call Judge White ``procriminal'' for accepting the
reasonableness of that argument?
Answer: While criminal defendants may advance many arguments in the
range of ``reasonableness,'' it is not, in my view, appropriate to
reverse a criminal conviction where there is no finding that any
alleged error would affect the outcome of the case.
Question (F): In your speech to the Claremont Institute, you said
that funding for drug treatment ``accommodates us at our lowest and
least.'' Who or what are the ``lowest and least''?
Answer: In my speech at the Claremont Institute, I was expressing
the concern that our paramount message to America's youth must be that
drug use is wrong. Of course, I agree that treatment must be part of a
comprehensive approach to combating drug use. Such treatment, however,
should not come at the expense of undermining the primary message.
Question (G): As a Senator on the Judiciary Committee last
Congress, did you play any role or support the Committees failure to
hold hearings or act upon the 17 Circuit Court of Appeals nominees left
pending in Committee at the end of the last Congress? Was it fair for
the Judiciary Committee to keep 15 of those nominees pending--many of
whom waited over a year--without even scheduling confirmation hearings?
Answer: Like all Senators on the Judiciary Committee, I was
involved in reviewing judicial nominations. During that time, I believe
that all of my actions were consistent with ensuring that nominees were
given a full and fair review.
Question (H): At the beginning of the 107th Congress, President
Clinton renominated eight appellate court nominees who had been left
pending at the end of the last Congress. All eight were nominated for
seats considered ``judicial emergencies'' by the Judicial Conference of
the United States. Do you believe the Judiciary Committee should hold
hearings on these eight who were renominated for ``judicial
emergencies'' and that the Senate should vote up or down on their
nominations?
Answer: It is the prerogative of both the Senate and the President
to determine how best to proceed with these nominations. I will defer
to their judgment on this matter.
Question (I): Congressman Conyers wrote you a letter on January 12,
2001, which he has made public, asking you 16 questions. Have you
answered Congressman Conyers and if not do you intend to do so? If so,
please attach a copy of your answers.
Answer: Congressman Conyers' letter, though written on January 12,
was only received by me on January 17. After I have responded to the
questions provided by members of the Senate Judiciary Committee, it is
then my intent to turn to the questions posed by Congressman Conyers.
Responses of the Nominee to questions submitted by Senators Graham and
Nelson
It has been reported that the Department of Justice Civil Rights
Division is pursuing an investigation into allegations of
discrimination in the November 7, 2000 election in Florida, including
counties' use of voting devices which result in a significantly higher
number of votes cast by certain minority groups being thrown out
because of overvotes or undervotes; a situation in which a crowd of
protesters stormed an election office in an effort to stop the counting
of ballots, thereby potentially intimidating election officials; and
allegations of police officers, in an effort to intimidate, placing
road blocks in close proximity to polling places. What will be your
commitment to continuing this investigation?
Question (A): Can you assure us that such an investigation will be
completed in a timely manner? I would appreciate knowing within thirty
days of you assuming the office of the Attorney General what will be
the completion date for this investigation.
Question (B): If violations of the Voting Rights Act are
identified, would you consider remedies such as these to be
appropriate: to decertify all ``punch-card'' voting methods and other
unreliable voting methods as acceptable voting methods under Florida
law; to discontinue all voter purges of the voter registration rolls
until the development of procedures to ensure uniform, non-
discriminatory application of the law; to provide a mechanism for
persons whose names do not appear on the list of registered voters at
the polling place to vote in as timely a fashion as those whose names
do appear on the list; or to adopt standards and implement training
designed to insure that voting systems and procedures at polling places
within their jurisdiction are equal, accurate and reliable, and are
uniformly administered?
Question (C): If the independent United States Commission on Civil
Rights does discover instances of voter disenfranchisement, will the
Department of Justice expand its investigation into allegations of
violations of Floridians' voting rights and aggressively prosecute
violations of the Voting Rights Act?
Question (D): Based on what the Department of Justice will learn
from this investigation of the 2000 election in Florida, what specific
plan will you use to ensure that the discriminatory practices do not
recur in future elections? What resources will you commit to ensure
that this specific plan achieves its objective of avoiding
discriminatory practices in future elections?
Answer: If confirmed as Attorney General, I will ensure that the
allegations of vote irregularities connected with the recent election
in Florida are fully investigated, and will take all appropriate steps
to complete that investigation in a timely manner. In addition, I will
work to ensure that the Congress is kept apprised of the progress of
the investigation.
If violations of the Voting Rights Act are identified, I will
consider all reasonably appropriate remedies. It would, however, be
imprudent for me to comment on any specific remedy without the full
learning of the nature of any specific violations which may be found
and the various approaches to addressing those violations.
If confirmed, I will ensure that the Department of Justice takes
all reasonable and appropriate steps necessary to investigate all
credible allegations of vote irregularities, including any credible
allegations raised by the United States Commission on Civil Rights.
Once the Department of Justice completes its investigation, I will
be in a position to determine what specific steps are appropriate to
address any irregularities discovered, to help ensure that such
irregularities do not recur in the future, and to determine the
appropriate level of resources to commit to the issue. Such
determinations, however, cannot be made in advance of a thorough
investigation.
Responses of the Nominee to questions submitted by Senator Schumer
environmental law
Question: What is your philosophy on enforcement of environmental
laws?
Answer: I firmly believe that the federal government must play an
important role in protecting the environment and our natural resources.
If confirmed, I will see to it that federal laws protecting the
environment are fully and faithfully enforced.
hate crimes
On January 18, 2001, you said, in response to a question from
Senator Schumer that you would fully enforce the Hate Crimes Statistics
Act. This act, passed in 1990, requires the Justice Department to
collect data on crimes which ``manifest prejudice based on race,
religion, sexual orientation, or ethnicity'' from law enforcement
agencies across the country and to publish an annual summary of the
findings. In the 1994 crime bill, Congress expanded coverage of the act
to require FBI reporting on crimes based on ``disability.'' In the
106th Congress, legislation passed the floor of both the House and the
Senate that would require FBI reporting on crimes based on ``gender.''
Unfortunately, it was not enacted into law.
Question: Would you be inclined to recommend that the
Administration support adding gender to the categories in the Hate
Crimes Statistics Act? If not, why?
Answer: Although I cannot comment on the details of the specific
legislation, I agree that it is extremely important to take all
reasonable and appropriate steps necessary to collect crime statistics.
Further, should the referenced legislation be enacted into law, I
assure you that if confirmed, I will fully and faithfully enforce that
law.
Question: Will you fully enforce the Hate Crimes Sentencing
Enhancement Act?
Answer: If confirmed, I will fully and fairly enforce all laws
passed by Congress.
Question: If you believe as you said on January 18, 2001, that the
Hate Crimes Prevention Act is constitutional, why did you oppose it as
a Senator?
Answer: As I explained during the hearing, many laws that some
might oppose based on public policy grounds, fully comport with the
requirements of the Constitution. There is, in short, nothing
inconsistent between voting against a law for policy reasons, but
nonetheless fully agreeing that such a law is well within the bounds of
Congress's constitutional authority.
Question: Do you believe sexual orientation should be a category
added to the federal hate crime law currently used to prosecute hate
crimes based on race, religion, national origin and color, 18USC
Section 245? If so, why? Or, why not?
Answer: President Bush has indicated that he supports Senator
Hatch's hate crimes legislation. I support the President's position on
this issue.
Question: Do you believe gender should be a category added to the
federal hate crime law currently used to prosecute hate crimes based on
race, religion, national origin and color, 18 USC Section 245? If so,
why? Or, why not?
Answer: President Bush has indicated that he supports Senator
Hatch's hate crimes legislation. I support the President's position on
this issue.
Question: Do you believe disability should be a category added to
the federal hate crime law currently used to prosecute hate crimes
based on race, religion, national origin and color, 18USC Section 245?
If so, why? Or, why not?
Answer: President Bush has indicated that he supports Senator
Hatch's hate crimes legislation. I support the President position on
this issue.
Question: Under your leadership would the Department of Justice
continue the important work of the U.S. Attorney Hate Crimes Working
groups currently in place?
Answer: As the Governor of Missouri, I was proud to sign Missouri's
first hate crimes legislation. If confirmed, I will take all reasonable
and appropriate steps to combat hate crimes at the federal level and
will devote the necessary resources to do so.
Question: There are currently studies and training programs on how
to identify, report and respond to hate violence as defined by the 1994
Hate Crimes Sentencing Enhancement Act. Will you continue these
important outreach and training programs?
Answer: As the Governor of Missouri, I was proud to sign Missouri's
first hate crimes legislation. If confirmed, I will take all reasonable
and appropriate steps to combat hate crimes at the federal level and
will devote the necessary resources to do so.
Question: Under your leadership would the Department of Justice
continue including ``sexual orientation'' as a category in the anti-
bias programs developed by the Department of Justice or under contracts
and grants provided by the DOJ?
Answer: As I explained during the hearing, if confirmed, sexual
orientation will not be a factor in my hiring decisions. I am, however,
not familiar with the details of the particular policy to which you
refer.
gun control
The United States has a serious problem with illegal firearms
trafficking. This is clearly a federal issue, as demonstrated by the
experience of my state of New York. New York streets are flooded with
guns coming from southern states. For example, 1,685 guns traced to
crime scenes in New York originated in Florida, Georgia, the Carolinas,
and Virginia. As a candidate for Senate, you were quoted in the St.
Louis-Post Dispatch as supporting stronger penalties for people who
sell gun illegally as well as for stronger penalties for people who
commit crimes with guns.
Question: Do you believe that the federal government should have a
strong role in the prosecution of illegal firearm trafficking?
Answer: Yes.
Question: Is it your opinion that federal authority to prosecute
illegal gun traffickers should be enhanced?
Answer: President Bush has made clear that the federal gun laws on
the books should be fully and fairly enforced and has proposed
additional, common-sense gun restrictions. I will support the
President's position on this issue.
Question: Would you say that federal prosecutors should have at
their disposal every available tool to prosecute illegal gun runners?
Answer: No. For example, as in all prosecutions, federal
prosecutors should not be allowed to disregard the strictures of Due
Process. But I do agree that prosecuting gun crimes should be a top
priority of the Department of Justice.
Question: As a senator did you not oppose the addition of firearms
offenses to the list of crimes that could be prosecuted under the
federal RICO statute?
Answer: My position on this matter was based on by belief that the
RICO statutes have, in some circumstances, been abused. Indeed, the
ACLU has been very critical of RICO and has opposed its expansion.
Question: A 1999 analysis performed by my staff of crime gun
tracing data showed that one percent of gun dealers were the source of
45 percent of crime guns. Moreover, a June 2000 study from the federal
Bureau of Alcohol, Tobacco and Firearms, Following the Gun: Enforcing
Federal Laws Against Firearms Traffickers found that corrupt licensed
gun dealers were associated with by far the highest mean number of
illegally diverted firearms per investigation.
With these facts in mind do you favor measures that would crack
down on such ``bad apple'' dealers?
Answer: Yes.
Question: Specifically, would you support criminal prosecution of
licensed gun dealers who transfer a firearm ``having reason to know''
that such a firearm will be used to commit a crime of violence or a
drug trafficking crime?
Answer: I believe that all federal gun laws should be fully and
fairly enforced.
Question: Do you support steps that have been taken to reduce the
number of federally licensed gun dealers from nearly a quarter of a
million in 1992 to approximately 70,000 today?
Answer: I support the full and fair enforcement of all federal gun
laws aimed at reducing gun crimes.
Question: Do you support the current concept of background checks
for firearm purchasers and will you will work to maintain the
effectiveness of the NICS.
Answer: Yes, I am committed to doing so.
Question: As you may be aware, the FBI has determined that in order
to insure the effectiveness of the NICS, it is essential to maintain an
audit log. The FBI has determined that records from NICS should be kept
for six months to guarantee that the NICS is functioning. Are you
planning to support the FBI's expertise in this matter?
Answer: I will fully consult with the experienced professionals of
the FBI before making an assessment of the best approach to this issue.
Question: You may be aware that the National Rifle Association
filed a lawsuit against the Department of Justice, NRA v. Reno, that
would have required the FBI to immediately destroy records from NICS
instead of allowing the audit log. The NRA's lawsuit failed. In a case
like this, would you side with the FBI and defend the lawsuit?
Answer: It would be imprudent of me to comment on a specific
lawsuit without the benefit of the FBI and Department of Justice's full
learning on this case. Any decision that I make would be done only
after full and fair consultation with the experts in this area.
Question: On July 21, 1998, you voted for an amendment offered by
Senator Robert Smith from New Hampshire to the Justice Appropriations
bill that would have required immediate destruction of any NICS records
relating to an approved transfer. You have voted to undermine what the
FBI maintains is an essential to successful operation of the NICS. How
can we be sure that you will work with the FBI to maintain the
integrity of the NICS when you have already sided with the gun lobby
over the FBI?
Answer: As I explained during the hearing, if confirmed, I will be
law-oriented. That means that I will fully and fairly enforce the law
as enacted by Congress and signed by the President. My record as
Missouri's attorney general attests to the fact that this is a
distinction that I fully recognize and adhere to. It further
demonstrates my longstanding commitment to law enforcement.
Question: Do you support the current law requiring federally
licensed firearm dealers to conduct background checks on firearm
purchasers?
Answer: The President has indicated that he supports this law, and
I support his position on this matter.
Question: What in your opinion is the purpose of the background
check law?
Answer: The primary purpose of a background check is to prevent
those individuals who have been barred by law from purchasing a firearm
to purchase one.
Question: Are you aware that the Department of Justice has
determined that 95% of background checks are completed within two
hours?
Answer: I am not familiar with all the details of the Department of
Justice's crime statistics.
Question: Are you aware that the Department of Justice has
determined that of the remaining 5%, ``22% of all gun buyers who are
found to be prohibited persons are not found to be prohibited until
more than 72 hours have passed.''
Answer: I am not familiar with all the details of the Department of
Justice's crime statistics.
Question: Why did you vote to reduce the time allowed to conduct
background checks at gun shows, by all sellers, including licensed
dealers, from the current three business days to 24 hours?
Answer: As with many laws, the need for health and safety
regulation must be balanced against the rights of law abiding citizens.
As a legislator, I believed that a 24-hour background check was the
best balance to strike in this area. As Attorney General, I will
enforce whatever laws Congress chooses to enact.
Question: Why would you vote to establish a weaker standard for
licensed dealers selling at gun shows than dealers who are selling at
gun stores?
Answer: As discussed above, as with many laws, the need for health
and safety regulation must be balanced against the rights of law
abiding citizens. As a legislator, I believed that a 24-hour background
check was the best balance to strike in this area. As Attorney General,
I will enforce whatever laws Congress chooses to enact.
Question: Are you aware that the FBI has estimated that under a 24-
hour time frame, more than 17,000 people who had been stopped would
have been sold firearms?
Answer: I am not familiar with all the details of the Department of
Justice's crime statistics.
Question: The Assault Weapons bill bans the manufacture and
importation of semi-automatic assault weapons and high-capacity
magazines over 10 rounds as of September 13, 1994. That law is set to
sunset on September 13, 2004. What plans do you have as the nation's
top law enforcement officer to work to reauthorize that law?
Answer: The President has said that he would support
reauthorization of the ban on assault weapons. I will support the
President's position on this matter.
Question: On two occasions, July 28, 1998, and May 13, 1999, you
voted against amendments offered by Senator Feinstein to ban the
importation of high capacity magazines, those over 10 rounds. What is
your rationale for opposing such a ban on the importation of high
capacity magazines which can hold 20, 32 or even 100 rounds of
ammunition.
Answer: As Attorney General, I will fully enforce our nation's gun
laws. The President has said that he would support banning the
importation of high-capacity ammunition magazines. I will support the
President's position on this matter.
Question: Would you support legislation that allowed national
carrying of concealed handguns?
Answer: The President has said that he would support legislation to
allow active and retired law enforcement officers to carry concealed
weapons across state lines, but that, beyond that, the issue is one for
states to decide. I will support the President's position on this
issue.
Question: As a rule, do you think we are a safer nation if more
people are carrying concealed handguns?
Answer: The President has indicated that he believes that the
Nation would be safer if certain individuals--active and retired law
enforcement officers--were able to carry concealed weapons across state
lines. Beyond that, it is up to individual states to decide the matter.
Question: As Governor of Missouri, you opposed legislation that
would have allowed individuals to carry concealed handguns in your
state, is that correct?
Answer: The Director of Public Safety, a cabinet appointee of the
Governor, and the Superintendent of the Missouri Highway Patrol, also
an appointee of the Governor, opposed the legislation. As Governor, I
took no position on the legislation, which did not pass the General
Assembly.
Question: In 1999, you supported an NRA backed referendum,
Proposition B, to allow carrying concealed handguns in Missouri, is
that correct?
Answer: Yes.
Question: In fact, you did a radio ad that according to the
Associated Press ``blanketed the Missouri airwaves'' indicating your
support for that measure, is that correct?
Answer: I did record a radio spot in favor of the referendum. I am
not aware of the extent to which that radio spot received air time in
the state.
Question: How did that radio ad come about?
Answer: Although I do not recall the specific details, my
recollection is that supporters of the referendum approached me and
asked me to record the radio spot.
Question: Were you aware of who funded the campaign to allow the
carrying of concealed handguns in the state?
Answer: No. I was not aware of the details of which groups or
individuals funded the referendum. My understanding, however, is that
such information is publicly disclosed.
Question: Proposition B would have prevented felons and criminals
convicted of violent crimes from carrying handguns. But as the system
was created, it would have not only allowed, but could not prevent,
other categories of criminals, like child molesters and stalkers, from
obtaining a license to carry handguns in Missouri. How would Missouri
have benefitted from a law that allowed child molesters and stalkers to
carry handguns in your state.
Answer: My support for this initiative was predicated on the fact
that federal law prohibits convicted felons and other prohibited
persons from possessing firearms at all. Federal law obviously would
pre-empt any state law that purported to permit felons to possess
firearms. To the extent there were loopholes in Missouri law lowering
the status of the two crimes you mention in your question, I was
unaware of those provisions at the time.
nominations
Question: Three months before you voted against Mr. Hormel to be
Ambassador to Luxembourg, you joined with a unanimous Senate in
approving him as Alternate Delegate to the United Nations General
Assembly. What, if anything, did you learn about Mr. Hormel in those
intervening three months? Did you speak with Mr. Hormel at any time in
those three months? In what way, if at all, was ``the totality of
[Hormel's] record'' different at the time you voted against his
nomination as Ambassador to Luxembourg from the time you voted to
approve him as a delegate to the United Nations?
Answer: Like many other Senators, the standard that I applied for
presidential nominees varied depending upon the office for which the
nominee was nominated. I thus believed that while Mr. Hormel might
serve adequately as an Alternate Delegate to the United Nations General
Assembly, he would not, based on the totality of his record, have been
an appropriate person to serve as Ambassador to Luxembourg.
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