[Senate Hearing 107-196]
[From the U.S. Government Printing 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

                               ----------                              

                           Serial No. J-107-1

                               ----------                              

         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
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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

                              ----------                              

                       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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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)
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \5\ Jefferson City News & Tribune, March 13, 1983.
    \6\ Human Events Magazine, May 29, 1998.
    \7\ Human Events Magazine, May 29, 1998.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \8\ Kansas City Star, September 14, 1997.
    \9\ Meet the Press, April 19, 1998.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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