[Congressional Record Volume 147, Number 11 (Monday, January 29, 2001)]
[Senate]
[Pages S593-S607]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF JOHN ASHCROFT
Mr. LEAHY. The President of the United States sent to the Senate the
nomination of John Ashcroft to be the Attorney General of the United
States. In advance of him sending it, to accommodate the new President
and expedite the consideration of the nomination, I convened 3 days of
hearings on this nomination over the 4-day period from January 16 to
January 19.
The Republican leadership had announced weeks ago that all 50
Republican Senators would be voting in favor of this nomination, but I
declined to prejudge the matter.
The Committee on the Judiciary has done the best it could to handle
this nomination fairly and fully, and we did it through hearings of
which all members of the committee, on both sides of the aisle, and all
Members of the Senate I believe can be proud.
Having reviewed the hearing record and the nominee's responses to
written follow-up questions from the Judiciary Committee, I come today
to announce and explain my opposition to the nomination of John
Ashcroft to be the Attorney General of the United States.
I take no pleasure in having reached this decision. I have voted or
will be voting to confirm nearly all of the President's Cabinet
nominees. No one in this Chamber more than I would have wanted a
nomination for Attorney General that the Senate could have approved
unanimously. As the ranking member of the Senate Judiciary Committee, I
am going to be working closely with the new Attorney General, often on
a daily basis. I would have wanted to begin that relationship with
enthusiastic support for whomever the President chose.
I also had the privilege of working with John Ashcroft during the 6
years he served as a Senator, and I consider it a privilege. Most of us
know him and like him. I admire his personal devotion to his family and
to his religion. While we are not always in agreement, I respect his
commitment to the principles he firmly holds, and I respect his right
to act on those principles.
The fact that many of us served with Senator Ashcroft and know and
like him does not mean we should not faithfully carry out our
constitutional responsibility in acting on this nomination. No one
nominated to be Attorney General of the United States should be treated
in any special way, either favorably or unfavorably, by this body
because he or she once served in the Senate. Our guide must be
constitutional duty, not friendship.
Most of us believe that a President has a right to nominate to
executive branch positions those men and women whom he believes are
going to carry out his agenda and his policies, but it is only with the
consent of the Senate that the President may proceed to appoint.
The Constitution, interestingly enough, is silent on the standard
Senators should use in exercising this responsibility. Every Senator
has the task of discerning what that standard should be, and then each
Senator has to decide how it applies in the case of any nomination,
especially a controversial nomination such as that of Senator Ashcroft.
The Senate's constitutional duty is to advise and consent; it is not
to advise and rubber stamp. Fundamentally, the question before us is
whether Senator Ashcroft is the right person at this moment for the
critical position of Attorney General of the United States.
This is an especially sensitive time in our Nation's history. Many
seeds of disunity have been carried aloft by winds that often come in
gusts, most recently out of Florida. The Presidential election, the
margin of victory, the way in which the vote counting was halted by the
U.S. Supreme Court remain sources of public concern and even of
alienation. Deep divisions within our country have infected the body
politic. We experienced the closest Presidential election in the last
130 years, possibly in our history.
For the first time, a candidate who received half a million more
votes lost. The person who received half a million fewer popular votes
was declared the victor of the Presidential election by 1 electoral
vote.
The Senate, for the first time in our history, is made up of 50
Democrats and 50 Republicans. Although this session of Congress is less
than 1 month old, each political party has already had its leader serve
as majority leader. Both Senator Daschle and Senator Lott have served
as majority leader.
Senate committees have already operated under both Democratic and
Republican chairs. I suspect Ph.D. dissertations will be written about
this for years to come.
Much has been made of what has come to be known as the Ashcroft
evolution, where activist positions he has held and valiantly advanced
appear now to be suddenly dormant in deference, as he said, to settled
law, at least during the confirmation hearings.
But leaving Senator Ashcroft aside for a moment, it must not be left
unremarked that he is not the only politician who has sent conflicting
signals about his view of Government. We have already seen two distinct
sides of the new President since he was declared the victor after the
November election. One side is the optimistic face of bipartisanship--a
sincere and knowledgeable President determined to work with like-minded
Democrats and Republicans to overhaul the way we educate our children.
This is a side of hope, cooperation, and compromise. In fact, in his
encouraging inaugural address barely 10 days ago, President Bush
acknowledged the difficulties of these times and the very special needs
of a divided nation. He said: ``While many of our citizens prosper,
others doubt the promise, even the justice, of our own country.'' He
recognized that deep differences divide us and pledged ``to work to
build a single nation of justice and opportunity.'' I applaud President
Bush for those words. At the luncheon after the inauguration, I told
him how much those words meant to me.
These crucial weeks and months after the divisive election are an
especially sensitive time, when hope and healing are waiting to emerge.
But they are also fragile, like the first buds of the sugar maple in
the spring in my own State of Vermont.
On the other side of the ledger, though, is the President's decision
to send to the Senate the nomination of John Ashcroft. Senator Ashcroft
is a man we know and respect, but a man we also know held some of the
most extreme positions on a variety of the most volatile social and
political issues of our time: Civil rights, women's rights, gun
violence, discrimination against gay Americans, and the role of the
judiciary itself.
Appointing the top law enforcement officer in the land is the place
to begin, if the goal is to bring the country together. I wish the
President had sent us a nomination for Attorney General who would unite
us rather than divide us. But that did not happen. This is a nomination
that had controversy written all over it from the moment it was
announced. It should surprise no one that today we find ourselves in
the middle of this battle. It should surprise no one that the polls in
this country show the American people are deeply divided on this
nomination.
It was, I believe, a crucial miscalculation from the President and
his advisers to believe this nomination would have brought all of us
together. Or perhaps, as some have suggested, it is an instance where
consensus was not the objective.
Many organizations and their members have weighed in on either side
of this debate. Some advocates for the nominee have been especially
critical of the membership groups that oppose this nomination. It must
be said that the only political pressure groups that have had a
decisive role in this nomination are the far right wing elements of the
Republican Party who insisted on this particular nominee and even
bragged to the press that they vetoed other, more moderate,
candidates--Republican candidates--for this job.
What is crystal clear to me is that the nomination of John Ashcroft
does not meet the standard the President himself has set. In those who
doubt the promise of American justice--and there are those--it does not
inspire confidence in the U.S. Department of Justice.
The Senate can help mend these divisions, it can give voice to the
disaffected, it can help to restore confidence in our Government, but
only if
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it remains true to its own constitutional responsibilities. At a time
of intense political frustration and division, it is especially
important for the Senate to fulfill its duty.
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 believe that their views are being taken into account.
When the American people vote, every vote is important, every vote
should be counted. Then when we hold hearings, and when we vote, we
have to be cognizant that each of us has sworn an oath to uphold the
Constitution. Each action we take as Senators has to be consistent with
that oath.
There are 280 million Americans in this wonderful and great country
of ours. Of those 280 million Americans, there are only 100 people who
have the license and the obligation to vote on this nomination: 100
Members of the Senate, a body that should be the conscience of the
Nation, and sometimes is. Two hundred eighty million Americans expect
us to make up our minds on this.
There is a reason many of us believe that the job and role of
Attorney General is the most important job in the Cabinet. Why? Because
it is not simply a job where you carry out what the President tells you
to do; it is far more than that. The extensive authority and discretion
to act in ways that go beyond Presidential orders are part of the
important role of the Attorney General and require that our Attorney
General have the trust and confidence of all the people. Democrats,
Republicans, moderates, conservatives, liberals, white, black, no
matter who, rich, poor, they must all have confidence in this one
Cabinet position above all others, because the Attorney General is a
lawyer for all the people. He is the chief law enforcement officer of
the country.
The Attorney General is not the lawyer for the President. The
President has a White House counsel for that. The Attorney General is
the lawyer for all of us, no matter where we are from, no matter what
party we belong to. We all look to the Attorney General to ensure
evenhanded law enforcement. And we look to the Attorney General for the
protection of our constitutional rights--including freedom of speech,
the right to privacy, a woman's right to choose, freedom from
Government oppression, and equal protection of the laws. The Attorney
General plays a critical role in bringing the country together,
bridging racial divisions, and inspiring people's confidence in their
own Government.
Senator Ashcroft has often taken aggressively activist positions on a
number of issues that deeply divide the American people. He had a right
to take these activist positions. But we have a duty to evaluate how
these positions would affect his conduct as Attorney General.
John Ashcroft's unyielding and intemperate positions on many issues
raise grave doubts, both about how he will interpret the oath he would
take as Attorney General to enforce the laws and uphold the
Constitution and also about how he will exercise the enormous power of
that office.
Let me be very clear on this. I am not objecting to this nominee
simply because I disagree with him on ideological grounds. I have voted
for many nominees with whom I have disagreed on ideological grounds. I
am not applying the ``Ashcroft standard'' as he applied it to Bill Lann
Lee and other Presidential nominees over the last 6 years. My
conclusion is based upon a review of John Ashcroft's record as the
attorney general and then Governor of Missouri, as a Senator, and also
on his testimony before the Judiciary Committee. It is based on how he
has conducted himself and what positions he has taken while serving in
high public office while sworn to uphold the Constitution, basically
the same oath one would take 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 are entitled to be sure not just that this
nominee says he will enforce the laws on the books but also to be sure
what those priorities are going to be, what choices he is likely to
make, what changes he will seek in the law. Most importantly, we are
entitled to know what changes he will seek in the constitutional rights
that all Americans currently enjoy--that includes, of course, what
positions he will urge upon the Supreme Court--in particular, whether
he is going to ask the Supreme Court to overturn Roe v. Wade or to
impose more burdensome restrictions on a woman's ability to secure
legal and safe contraceptives.
On several of these issues, such as his lifelong opposition to a
woman's right to choose, his support for measures to criminalize
abortion even in cases of rape and incest, and his efforts to limit
access to widely used contraceptives, Senator Ashcroft has moved far
outside the mainstream. The controversial positions taken by this
nominee and his record require us to reject this nomination as the
wrong one for the critical position of Attorney General of the United
States at this time in our history.
It is in part because I know John Ashcroft to be a person of strong
convictions and consistency that I am concerned that he could not
disregard those long-held convictions if he is confirmed by this body.
It troubles me that he took essentially the same oath of office as
attorney general of Missouri that he would take as Attorney General of
the United States, but he acted differently than what he tells us he
would do now. Senator Ashcroft assumed a dramatically different tone
and posture on several matters during the course of his hearing.
The new John Ashcroft did not oppose the nomination of James Hormel
because of his sexual orientation. The new John Ashcroft is now a
supporter of the assault weapons ban. The new John Ashcroft is an
ardent believer in civil rights, women's rights, and gay rights. The
new John Ashcroft now believes Roe v. Wade is settled law. In fact, the
more I heard him refer to matters he has consistently opposed, laws he
consistently tried to rewrite, the more he referred to them as settled
law, the more unsettling that became.
Occasionally, we would get a peek behind the confirmation curtain.
What we saw was deeply disturbing. Senator Ashcroft was unrepentant in
the way he torpedoed the nomination of Judge Ronnie White to the
Federal district court, despite calls from some Republican Senators who
personally apologized to Judge White for the shabby treatment he
received. Senator Ashcroft, on the one hand, denied that sexual
orientation had anything to do with his opposition to the Hormel
nomination, then left the distinct, gratuitous impression that there
was something unspoken, unreported, yet unacceptable about Mr. Hormel
that somehow disqualified him from serving the United States as
Ambassador to Luxembourg, even though Luxembourg said they would
welcome his appointment as Ambassador.
Senator Ashcroft repeatedly declined to show the slightest remorse
for his appearance at Bob Jones University, for the enthusiastically
supportive interview he gave with a pro-confederate magazine, Southern
Partisan, and for some of the most inflammatory language I have heard
about the Federal judiciary since the bitter and violent days of the
civil rights movement.
Most of us in this body have known the old John Ashcroft, but during
the hearings we met a new John Ashcroft. Our challenge has been to
reconcile the new John Ashcroft with the old John Ashcroft, to find the
real John Ashcroft who would sit in the Attorney General's office. Were
the demurrals of his testimony real, or were they delicate bubbles that
would burst and evaporate a year or a month or a day from now under the
reassertion of his long-held beliefs.
So we come back again to why all this matters. Why would we treat
this position differently than, say, Secretary of Commerce or
Transportation? Obviously, if he had been nominated to either of those,
we would not have the controversy we now have. We treat it differently
because of this: The position of Attorney General is of extraordinary
importance. The judgments and priorities of the person who serves as
Attorney General affect the lives of all Americans.
We Americans live under the rule of law. The law touches us all every
day in ways that affect our safety and our health and our very rights
as citizens. Our Attorney General is our touchstone in the fair and
full application of
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our laws. The Attorney General not only needs the full confidence of
the President, he or she also needs the full confidence of the American
people.
The Attorney General controls a budget of more than $20 billion,
directs the activities of more than 123,000 attorneys, investigators,
Border Patrol agents, deputy marshals, correctional officers, other
employees, in more than 2,700 Justice Department facilities around the
country, actually more than 124 in foreign cities. The Attorney General
supervises the selection and the actions of 93 U.S. 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 around the
world and in this country, as well as the INS, the DEA, the Bureau of
Prisons, and a whole lot of other Federal law enforcement departments.
The Attorney General evaluates judicial candidates, recommends
judicial nominees to the President, advises on the constitutionality of
bills and laws. The Attorney General determines when the Federal
Government is going to sue an individual or a business or even a local
government. The Attorney General decides what statutes to defend in
court, what arguments to make to the Supreme Court or other Federal
courts, even State courts, on behalf of the U.S. Government.
As I said at the confirmation hearings for Edwin Meese to be Attorney
General, while the Supreme Court has the last word in what our laws
means, the Attorney General, more importantly, has the first word.
The Attorney General exercises broad discretion--in fact, most of
that discretion is not even reviewed by the courts; one might say it is
very rarely and then only sparingly reviewed by the Congress--over how
to allocate that $20 billion budget, then how to distribute billions of
dollars a year in law enforcement assistance to State and local
governments, and coordinate task forces on important law enforcement
priorities. These are the priorities the Attorney General sets.
The Attorney General makes the decision when not to bring prosecution
as well as when to bring prosecution, when to settle a case and when to
go forward with a case. Having been a prosecutor, I know these are the
decisions that can set policy more than anything that a Governor or a
President or Member of Congress might do. A willingness to settle
appropriate cases once the public interest has been served rather than
to pursue endless and divisive and expensive appeals, as John Ashcroft
did in the Missouri desegregation cases, is a critical qualification
for the job.
There is no appointed position within the Federal Government that can
affect more lives in more ways than the Attorney General. No position
in the Cabinet is more vulnerable to politicization by one who puts
ideology and politics above the law. We should expect --all of us, not
just 100 Senators but 280 million Americans--to have an Attorney
General who will ensure evenhanded law enforcement and equal justice
for all, protection of our basic constitutional rights to privacy,
including a woman's right to choose and our rights to free speech and
to freedom from government oppression. We look to the Attorney General
to safeguard our marketplace from predatory and monopolistic activities
and to protect our air and our water and our environment.
The Attorney General, among all the members of the President's
Cabinet, is the officer who must be most removed from politics, if he
is going to be effective and if he is going to fulfill the duties of
that office.
Now, I have a deep and abiding respect for the Senate and its vital
role in our democratic government. Twenty-six years in the Senate have
given me the privilege to know and work with hundreds of others in this
body. I cherish those friendships, and not only the friendships of the
other 99 Senators here today, but the others I have served with over
two-and-a-half decades. But far beyond friendship, my first duty as a
U.S. Senator from Vermont is to the Constitution. I have sworn to
uphold the Constitution.
In the aftermath of the national election in November, I have gone
back to that Constitution many times. This weekend, I re-read the
appointments clause.
I cannot give consent to the nomination of John Ashcroft to be
Attorney General and thus be true to my oath of office. I do not have
the necessary confidence that John Ashcroft can carry on the great
tradition and fulfill the important role of Attorney General of the
United States.
The American people certainly are not united in any such confidence.
This nomination does not help President Bush to fulfill his pledge to
unite the Nation.
I will vote no when the Senate is asked to give its advice and
consent to the nomination of John Ashcroft to be Attorney General of
the United States.
To further elaborate, Mr. President, the week before the Inauguration
of the new President, the Senate Judiciary Committee conducted three
days of hearings over four days on the nomination of former Senator
John Ashcroft to be the next Attorney General of the United States. We
heard not only from the nominee but also from thirteen witnesses called
on his behalf and thirteen witnesses who opposed his nomination. While
a number of my colleagues, most notably the entire Republican caucus,
expressed support for this nomination before the hearing, I declined to
pre-judge the nominee until I had heard his testimony and that of other
witnesses, and reviewed their responses to follow-up written questions.
I rise today to express my opposition to this nomination.
The Appointments Clause of the Constitution gives the Senate the duty
and responsibility of providing its advice 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. The Senate has a duty to take this
constitutional function seriously.
There was a time, of course, when ``senatorial courtesy'' meant
cursory attention to former members of this body. Senators nominated to
important government positions did not even appear before Committees
for hearings. Certainly, the Senate was and should continue to be
courteous to all nominees, but we should not use a double standard for
members who have not been re-elected to the Senate. No one nominated to
be Attorney General should be treated specially either favorably or
unfavorably just because he once served in the Senate. The fact that
many of us served with, know and like John Ashcroft does not excuse the
Senate from faithfully carrying out its constitutional responsibility
with regard to this nomination. Our constitutional duty rather than any
friendship for Senator Ashcroft must guide us in the course of these
proceedings and on the final vote on his nomination.
This is especially the case in these times when the new President is
emerging from a disputed election that was decided after vote counting
in Florida was ordered to stop through the intervention of the U.S.
Supreme Court. The resolution of this election remains a source of
public concern and sharp division in our country, reflected in a deeply
divided electorate and demands from all sides for bipartisan
leadership.
These are not auspicious beginnings for a new Administration and this
nomination has been a troubling signal. John Ashcroft has taken
aggressively activist positions on a number of issues on which the
American people feel strongly and on which they are deeply divided. On
several of those issues, such as his lifelong opposition to a woman's
right to choose and support for measures to criminalize abortion, even
in cases of rape and incest, and to limit access to widely-used
contraceptives, he is far outside the mainstream.
The President has said his choice is based on finding someone who
will enforce the law, but we need more than airy promises on this score
to vest the extensive authority and important role
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of the Attorney General in John Ashcroft. His assurances that he would
enforce the law cannot be the end of our inquiry, as some would urge.
The heart of the Attorney General's job is to exercise discretion in
deciding how and to what extent the law should be enforced, and what
the Government will say it means.
The essence of prosecutorial discretion is 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. We need an Attorney General who has the full trust
and confidence of the people that the laws will be enforced fairly and
across the board, and that any changes the Attorney General will seek
legislatively or in defining critical constitutional rights before the
U.S. Supreme Court will be for the benefit of all Americans and reflect
the mainstream of our values.
John Ashcroft's unyielding and intemperate positions on many issues
raise grave doubts in my mind both about how he will interpret the oath
he would take as Attorney General to enforce the laws and uphold the
Constitution, and about how he will exercise the enormous discretionary
power of that office. Let me be clear: I am not objecting to this
nominee simply because I disagree with him on ideological grounds.
My conclusion is based upon a review of John Ashcroft's record as the
Attorney General of Missouri and then Governor, as a United States
Senator, and his testimony before the Judiciary Committee. That is to
say, it is based on how he has conducted himself, and what positions he
has taken, while serving in high public office and while sworn to
uphold the Constitution. Let me give some specific examples.
As Governor, John Ashcroft vetoed two bipartisan bills that would
have made it easier to register voters in the City of St. Louis, a city
with a very substantial African-American population. These bills would
have directed election authorities to allow outside groups, such as the
League of Women Voters, to register voters. They were designed to
rectify an imbalance between St. Louis County, a predominantly white
area where outside groups were allowed to register voters, and St.
Louis City, whose election commissioners (appointed by John Ashcroft)
forbade the practice. Due in large part to that imbalance, only 73
percent of St. Louis City residents were registered to vote, while 81
percent of County residents were registered. (St. Louis Post-Dispatch,
February 2, 1989). Faced with an opportunity to correct that imbalance,
however, Governor Ashcroft refused. He vetoed one bill that dealt
specifically with the St. Louis City Election Board, claiming it was
unfair to single out one region for this requirement. The following
year, the legislature addressed that criticism and passed a bill that
pertained to the entire state. Nonetheless, Governor Ashcroft vetoed it
again. (New York Times, January 14, 2001).
This opposition to legislation that would have ensured that black and
white voters were treated equally in Missouri is all the more
disturbing in light of the serious charges that have arisen in the wake
of the Florida vote in the presidential election. It is critical that
our new Attorney General have a sterling record on voting rights
issues.
Neither Senator Ashcroft's handling of this matter as Governor nor
his response to the Committee's questions about it inspire confidence.
Indeed, it was distressing that Senator Ashcroft, when given the chance
to explain his actions, chose to engage in an apparent ``filibuster''
by reading his entire veto messages, which were neither concise nor
responsive to the questions he was asked. As a result, the time of his
questioner expired and Senator Ashcroft was able to avoid confronting
this issue fairly and completely.
Set against John Ashcroft's questionable record on voting rights
issues, his record while he served as Attorney General and Governor of
Missouri on fighting a voluntary desegregation plan for the St. Louis
school system is particularly troublesome. My concern is not merely
that he fought a voluntary desegregation plan, since I can well
appreciate the volatility of using busing to achieve equal educational
opportunity. My concern is over the manner in which he aggressively
fought this voluntary plan, the defiance he showed to the courts in
those proceedings and his use of that highly-charged issue for
political advantage rather than for constructive action. Most
significantly, on at least four crucial points, the testimony he gave
to the Committee about this difficult era in Missouri's history was
incomplete and misleading, which he essentially conceded when I
corrected the record on the second day of the hearing.
First, Senator Ashcroft repeatedly claimed during the first day of
his testimony that the state was not a party to the lawsuit brought to
desegregate the schools in St. Louis. He testified, in response to my
questions that ``the state had never been a party to the litigation.''
(1/16/01 Tr., at p. 101). He repeated this assertion that the state was
not a party to the litigation, stating, ``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's important to ask the opportunity for
the state to have a, kind of, due process, and the protection of the
law that an individual would expect,'' (Id., at p. 101).
Yet, Missouri was, indeed, made a party to the St. Louis lawsuit in
1977, the year after Ashcroft took over as the state's Attorney
General. See Adams v. United States, 620 F.2d 1277,1285 (8th Cir.),
cert. denied, 449 U.S. 826 (1980). I pointed out this fact at the
outset of the second day of the hearings. (1/17/01 Tr., at p. 2-3), and
Senator Ashcroft thanked me for the opportunity to clarify the record.
(Id., at 2-3).
Second, Senator Ashcroft also repeatedly claimed in his testimony
that the state was not liable. He testified that ``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 . . .'' (1/
16/01 Tr., at p. 100). Again, he testified ``the state had not been
found really guilty of anything.'' (Id.). He explained that ``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 party to the litigation.'' (Id.). He further explained, ``Frankly,
I thought the ruling by the court that the state would have to pay when
there was not showing of a state violation to be unfair.'' (Id. at p.
101). He maintained this position in response to questions by Senator
Kennedy and testified that segregation in St. Louis ``was not a
consequence of any state activity.'' (Id., at p. 123).
In fact, however, the state was found directly liable for illegal
school segregation in St. Louis. In March 1980, the Eighth Circuit
ruled that both the state and the city school board were liable for
segregation. Adams v. United States, 620 F.2d 1277, 1280, 1291, 1294-95
(8th Cir.), cert. denied, 449 U.S. 826 (1980). The state's improper
conduct included previously mandating, over a period of years, the
inter-district transfer of black students into segregated city schools
to maintain segregation. Id. at 1280. In other words, when Senator
Ashcroft testified that the State ``had not been found really guilty of
anything,'' the fact was that it had been found guilty of imposing
forced busing on African-Americans in order to segregate them. And the
``mandate by the federal government'' that he opposed was a mandate to
remedy the State's own flagrant violation of Brown v. Board of
Education.
In June 1980, the district court made clear the state's liability,
explaining that ``the State defendants stand before the Court as
primary constitutional wrongdoers who have abdicated their remedial
duty. Their efforts to pass the buck among themselves and other state
instrumentalities must be rejected.'' Liddell et al. v. Bd. of Ed. of
City of St. Louis, 491 F. Supp. 351, 357, 359 (E.D. Mo. 1980), aff'd
667 F.2d 643 (8th Cir.), cert. denied, 454 U.S. 1081 (1981). Attorney
General Ashcroft appealed this liability finding, but the Eighth
Circuit rejected his argument as ``wholly without merit.'' Liddell,
supra, 667 F.2d at 655. The U.S. Supreme Court denied the state's
attempt to appeal the decision. 454 U.S. 1081, 1091 (1981).
[[Page S597]]
Again, in 1982, the Eighth Circuit reiterated that the state
defendants were ``primary constitutional wrongdoers'' that could be
ordered to take remedial action. Liddell, 677 F.2d 626, 628-29, (8th
Cir.), cert. denied 459 U.S. 877 (1982). The U.S. Supreme Court again
denied the state's attempted appeal.
Yet again, as his attorney general term was ending in 1984, the
Eighth Circuit rejected the state's arguments against voluntary city-
suburb desegregation, and the Supreme Court again denied review.
Liddell, 731 F.2d 1294, 1305-9 (8th Cir.), cert. denied, 469 U.S. 816
(1984).
I pointed out the multiple findings of state liability by the federal
courts at the outset of the second day of the hearing, and Senator
Ashcroft conceded the accuracy of that correction. (1/17/01 Tr., at p.
2-3). It is a shame, indeed, that he only acknowledged the settled law
of the case 20 years after the courts decided it.
Third, Senator Ashcroft testified that in the St. Louis case, ``[i]n
all of the cases where the court made an order, I followed the order,
both as attorney general and as governor.'' (1/16/01 Tr., at p. 125-
126). He repeated this claim in response to questions from Senator
Hatch, stating that ``we complied with the orders of the federal
district court and of the Eighth Circuit court of appeals and of the
United States Supreme Court.'' (1/17/01 Tr., at p. 197).
While as attorney general, John Ashcroft may have complied with the
technical terms of the court orders, his vigorous and repeated appeals
show that he did so reluctantly and the scathing criticism he received
from the courts shows that they lacked confidence in how he was
fulfilling his obligations as an officer of the court. This is
troubling. In 1981, the federal district court ordered the state and
the city board to submit voluntary desegregation plans, but attorney
general Ashcroft failed to comply. Consequently, the court threatened
in March 1981 to hold the state in contempt if it did not meet the
latest deadline and explicitly criticized the state's ``continual delay
and failure to comply'' with court orders. (AP 3/5/81). The court also
stated the following: ``The court can draw only one conclusion--the
state has, as a matter of deliberate policy, decided to defy the
authority of the court.''(St. Louis Post-Dispatch 3/5/81). The district
court also stated in a 1984 order, ``if it were not for the state of
Missouri and its feckless appeals, perhaps none of us would be here
today'' (St. Louis Post-Dispatch, December 30, 1984).
Fourth, Senator Ashcroft denied that he ``opposed voluntary
desegregation of the schools'' and said ``nothing could be farther from
the truth.'' (1/16/01 Tr., at p. 99). He asserted that ``I don't oppose
desegregation'' and that ``I am in favor of integration,'' and only
opposed the State being asked to pay this very substantial sum of money
over a long course of years.'' (Id., at p. 101).
I take Senator Ashcroft at his word that he supports integration.
This only makes more disturbing his public statements made in the heat
of political campaigns that exacerbated an already difficult situation
over desegregation in Missouri schools. In 1981, he opposed a plan by
the Reagan Administration for voluntary desegregation, based not just
on cost but also because it would allegedly attract ``the most
motivated'' black city students, even though the city school board
itself disagreed. (Newsweek, May 18, 1981). I cannot understand how
John Ashcroft, leading advocate of vouchers to facilitate ``parental
choice'' for those motivated to leave the public school system, could
at the same time oppose the parental choice involved in voluntary
school desegregation for ``motivated'' African-Americans. In 1984, he
assailed the St. Louis desegregation plan as an ``outrage against human
decency.'' (St. Louis Post-Dispatch, June 15, 1984). In his 1984
gubernatorial campaign, he proudly stated that he had done ``everything
in his power legally'' to fight the plan and suggested that listeners
should ``[a]sk Judge (William) Hungate who threatened me with
contempt.'' (UPI, February 12, 1984).
Commentators at the time were critical of John Ashcroft's use for
political gain of the difficult challenges of desegregating the
schools. For example, the Post-Dispatch commented that Ashcroft and his
Republican gubernatorial primary opponent in 1984 were ``trying to
outdo each other as the most outspoken enemy of school integration in
St. Louis,'' and were ``exploiting and encouraging the worst racist
sentiments that exist in the state.'' (St. Louis Post-Dispatch, March
11, 1984). An African-American newspaper, the St. Louis American, had
even harsher words for Ashcroft. ``Here is a man who has no compunction
whatsoever to standing on the necks of our young people merely for the
sake of winning political favor,'' it wrote. ``Ashcroft implies at
every news conference, radio and television interview that he couldn't
care less what happens to black school children.'' (St. Louis Post-
Dispatch, February 29, 1984).
Finally, during the course of the hearing, Senator Ashcroft tried to
deflect any criticism of his own actions over desegregation by trying
to blame others. Specifically, he twice cited in his oral testimony and
again in his responses to written questions, an incident ``when the
state treasurer balked at writing the checks'' and ``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 . . . 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.'' (1/17/01 Tr., at p. 196; see also
1/16/01 Tr., at p. 100-103).
The treasurer to whom Senator Ashcroft referred was the late Mel
Carnahan. As I clarified on the record, treasurer Carnahan faced
personal liability for making a payment without the warrant of the
commissioner of administration of the state of Missouri and properly
issued the check as soon as he had the appropriate legal authority to
do so. (1/18/01 Tr., at p. 130). In other words, Mel Carnahan did not,
as Senator Ashcroft implied, seek to defy the court's order; he merely
made sure that legally mandated procedures for complying with that
order were followed. The insinuation that Mel Carnahan was the obstacle
to desegregating Missouri's schools is false and reprehensible.
Governor Carnahan is rightly credited with bringing this lengthy
litigation to a close and fashioning progressive, bipartisan
legislation to appropriate funds sufficient for a remedy and allowing
the court to withdraw from active supervision of the case.
In my view, Senator Ashcroft's thinly-veiled disparaging testimony
about his deceased political opponent were mean and offensive.
In his written response to questions from Senator Kennedy, Senator
Ashcroft presents his role in the desegregation case as simply an
attempt to oppose interdistrict remedies, not intradistrict remedies.
This is the same argument he made as Attorney General to justify
bringing appeals from desegregation orders in 1981, 1982, and 1984. As
explained above, the courts repeatedly rejected this argument. It
should be noted in this regard that John Ashcroft did not merely appeal
those orders that imposed interdistrict remedies--he also appealed
orders mandating that the State aid in making improvements within St.
Louis itself, and orders that simply told the State to enter into
discussions concerning the possibility of interdistrict cooperation.
See, e.g., Liddell v. Board of Education, 667 F.2d 643. It should also
be noted that the courts found that Missouri was constitutionally
responsible for segregation in St. Louis in part because it mandated
the transfer of black suburban students into segregated city schools to
enforce segregation. Liddell v. Bd. of Educ., 491 F. Supp. 351, 359
(E.D. Mo. 1980).
Ignorance Is His Defense--Southern Partisan and Bob Jones University.
Senator Ashcroft's record on the racially-charged issues of voting
rights and desegregation make more worrisome his explanations for and
associations with Southern Partisan magazine and Bob Jones University.
In short, his explanation is ignorance.
In 1998, Senator Ashcroft gave an interview to the Southern Partisan,
a magazine which has gained a reputation for espousing racist views due
to its praise in past articles of such figures as former KKK leader
David Duke and its defense of slave-holders. At the hearing, Senator
Biden asked Senator Ashcroft about this interview and his
[[Page S598]]
association with this publication. Senator Ashcroft disavowed any
knowledge about the publication or its reputation. He said, ``On the
magazine, frankly, I can't say that I knew very much at all about the
magazine. I've given magazine interviews to lots of people. . . . I
don't know if I've ever read the magazine or seen it'' (1/17/01 Tr., p.
146). He told Senator Feingold that he thought the magazine was ``a
history journal.'' (Id., at 219).
Yet, it is difficult to square Senator Ashcroft's quoted remarks in
the Southern Partisan interview with his purported ignorance about the
publication. He praised the magazine, saying ``Your magazine also helps
to set the record straight'' on what he called ``attacks the
[historical] revisionists have brought against our founders.'' He added
even more praise, saying, ``You've got a heritage of doing that, of
defending Southern patriots like Lee, Jackson and Davis.'' Southern
Partisan, at 28 (2d Quarter, 1998). It is difficult to reconcile
Senator Ashcroft's testimony not to have known ``very much at all''
about the magazine with his own statements in the interview praising
its ``heritage.'' Indeed, he subsequently admitted that ``I know
they've been accused of being racist.'' (1/17/01 Tr., p. 152).
Putting that aside, however, I find it more troubling that despite
the multiple opportunities he was given to distance himself from this
magazine and evidence regret for giving the interview, he refused to do
so. Instead, he responded with a platitude saying, ``I condemn those
things which are condemnable.'' (Id., at 147). We need more than
platitudes from the next Attorney General. He made clear that what he
mostly regretted is that this interview became an issue, saying: ``And
I regret that speaking to them is being used to imply that I agree with
their views.'' (1/17/01 Tr., p. 146). Would it really hurt him to say,
``I made a mistake. It's an obnoxious publication and its positions are
offensive"? It troubles me to see a public official going around
applauding racially offensive institutions, and it troubles me even
more to see him refusing to admit his mistakes and try to heal the
offense.
The same claim of ignorance was Senator Ashcroft's excuse for
accepting a speaking engagement and an honorary degree from Bob Jones
University. This school is not accredited. It did not admit African
American students until 1971. Then, from 1971 to May 1975, the
University accepted no applications from unmarried African American
students, but did accept applications from African Americans ``married
within their race.'' Bob Jones University v. U.S., 461 U.S. 574 (1983).
Even after it lost its tax exempt status in the mid-1970's, Bob Jones
University maintained a ban on interracial dating. This policy changed
on March 3, 2000, when Bob Jones announced on Larry King Live that the
policy was dropped after an outcry over the visit to the University by
then candidate, now President Bush.
The school, however, continues to discourage interracial dating.
After announcing that the school would drop the interracial dating ban,
Bob Jones told the student body at their daily chapel service the
following day that they must tell their parents if they became involved
in an interracial relationship and parents must send a letter to the
dean of men or women approving the relationship before the university
would allow it. Two days later, he announced that the school would drop
the parental permission requirement but that students who wanted to
engage in ``serious dating relationships'' against their parents'
approval would be referred to counseling by the university. That is
mandatory special ``counseling'' for adults engaged in interracial
dating in the year 2001. That is a disgrace to our nation and all that
we stand for.
As recently as March 2000, Bob Jones, the leader of the school, made
clear on national TV that he views the Pope as the ``anti-Christ'' and
both Catholicism and Mormonism as ``cults.'' Senator Ashcroft claimed
that he did not know about the school's beliefs at the time he spoke.
(St. Louis Post-Dispatch, March 3, 2000). Yet, when he spoke to the
students at Bob Jones University, he appeared to condone the policies
of the school from which they were graduating by thanking each of them
``for preparing themselves in the way that you have.''
His assertion of ignorance was once again met with some skepticism,
as even the press pointed out that ``he was attorney general [of
Missouri] when the U.S. Supreme Court denied the university's tax
exempt status, and was governor when a state Supreme Court candidate
ignited a controversy with pro-Bob Jones statements in 1992.'' (Id.).
Specifically, in 1992, then Governor Ashcroft considered appointing
Carl Esbeck to fill, at the time, the seventh and last open seat on the
Missouri Supreme Court, but this proposed nomination proved
controversial due to Esbeck's criticism of the U.S. Supreme Court's
ruling that Bob Jones University was not entitled to tax-exempt status
due to its discriminatory practices. (St. Louis Post-Dispatch, August
6, 1992). Having seen the offense caused by his own efforts to appoint
a judge who had been supportive of Bob Jones University in 1992, one
might have expected Senator Ashcroft to be more sensitive, and more
cautious about accepting an honorary degree from the same institution
seven years later.
Again, as with the Southern Partisan interview, Senator Ashcroft has
never apologized for accepting an honorary degree from this school or
for associating with it. Instead, during his unsuccessful Senatorial
campaign, in response to his opponent's challenge to take this action,
Senator Ashcroft ``fired a puzzling return volley, saying he will give
back all his degrees if Mr. Carnahan will return campaign contributions
from pro-choice groups.'' (St. Louis Post-Dispatch, March 3, 2000). If
Senator Ashcroft believes that support for Roe v. Wade is on a moral,
legal, or political par with racial bigotry and the demonization of the
Catholic and Mormon Churches, he is further out of the mainstream than
I thought. If not, he missed a major opportunity to heal an offense for
a great many Americans with an evasive and irrelevant response.
By contrast, after then candidate, now President Bush spoke at Bob
Jones University in February 2000, he expressed regret for the
appearance, in recognition of the ``anti-Catholic and racially divisive
views'' associated with that school. Another Republican colleague, who
also received an honorary degree from Bob Jones University,
Representative Asa Hutchinson, later took a public step to disassociate
himself from the school, calling the school's policies
``indefensible.'' (New York Times, March 1, 2000).
Senator Ashcroft apparently has no regrets about accepting an
honorary degree from Bob Jones University. On the contrary, Senator
Ashcroft made clear in response to questions from both Senator Durbin
and Senator Feinstein that he would consider a repeat visit to Bob
Jones University as U.S. Attorney General. (1/17/01 Tr., pp. 237, 243).
Senator Durbin asked, ``you would not rule out, as attorney general of
the United States, appearing at that same school?'' Senator Ashcroft
responded, ``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.'' (Id.
at p. 237). Senator Feinstein asked ``In six months, you receive an
invitation from Bob Jones University. You now know about Bob Jones
University. Do you accept that invitation?'' Senator Ashcroft indicated
that, ``it depends on what the position of the university is; what the
reason for the invitation is,'' but the short answer is ``I don't want
to rule out that I would ever accept any invitation there.'' (Id., at
p. 243).
This response was dismaying for a man who seeks the post of lawyer
and advocate for all the people of this country. During the hearing, I
suggested that he ``put that honorary degree in an envelope and send it
back and say this is your strongest statement about what you feel about
the policies.'' (Id., at p. 262). Maybe at a minimum he could send it
back with a statement that he will consider associating with Bob Jones
University again if and when the school publicly disavows all of its
racially and religiously offensive positions. That, at least, would be
better than hanging a degree from an infamous bastion of discrimination
on the walls of the Attorney General's office. Ignorance is a weak
defense for associating with institutions that notoriously espouse
racially insensitive and discriminatory philosophies and policies. An
inability to recognize one's
[[Page S599]]
mistakes, and to acknowledge the sensitivities of others, is a serious
flaw in a man who would be the Attorney General of all the people.
Finally, despite the deep concern about his judgment in appearing at
Bob Jones University, Senator Ashcroft has been less than forthright
with the Committee. During my short tenure as Chairman of the
Committee, I asked him personally for a copy of his commencement
address, in whatever form it was in, at a meeting on January 4, 2001. I
then wrote to Vice President Cheney, as head of the transition office,
twice requesting copies of any tape recordings or transcriptions of
that speech. In my January 11 letter, I reported that Bob Jones
University advised my staff a tape was available but would not be
released without Senator Ashcroft's permission and specifically
requested ``a tape of the commencement ceremony in May, 1999, in which
Senator Ashcroft participated.'' The next day, Senator Ashcroft
furnished the Committee with a transcription of the speech, on the same
day the videotape of Senator Ashcroft's speech was broadcast on Larry
King Live. This videotape has never been provided to the Committee.
Moreover, the Committee's request for the videotape of the entire
commencement proceeding remains unanswered.
Senator Ashcroft proudly told Southern Partisan magazine that ``I
have been as critical of the courts as any other individual, probably
more than any other individual in the Senate. I have stopped judges . .
. and I will continue to do so.'' In fact, he led the Senate in the
politics of personal destruction by distorting the records of
presidential nominees whose political ideologies or ``lifestyles'' he
disliked.
Let me start with a review of how Senator Ashcroft worked to block
the nomination of James C. Hormel to be the Ambassador to Luxembourg,
and then how he explained his actions before the Committee on January
17, 2001.
Ambassador Hormel had a distinguished career as a lawyer, a
businessman, educator, and philanthropist. He had diplomatic experience
as well. He was eminently qualified for the job of U.S. Ambassador to
Luxembourg, Luxembourg's ambassador to the U.S. said the people of his
country would welcome him, and a clear majority of Senators supported
his confirmation.
Yet he was denied a Senate debate and vote. Senator Ashcroft and
Senator Helms were the only two members of the Foreign Relations
Committee who voted against favorably reporting the nomination of James
Hormel to serve as U.S. Ambassador to Luxembourg.
In June 1998, at a luncheon with reporters, Senator Ashcroft is
reported to have said:
People who are nominated to represent this country have to
be evaluated for whether they represent the country well and
fairly. His conduct and the way in which he would represent
the United States is probably not up to the standard that I
would expect. He has been a leader in promoting a lifestyle.
And the kind of leadership he's exhibited there is likely to
be offensive to . . . individuals in the setting to which he
will be assigned. Boston Globe (June 24, 1998).
Senator Ashcroft also said that a person's sexual conduct ``is within
what could be considered and what is eligible for consideration'' for
ambassadorial nominees. (San Diego Union-Tribune June 19, 1998). The
implication of these remarks seems clear to me. But do not rely on my
judgment. Listen instead to one of Senator Ashcroft's Republican
colleagues of the time, Senator Alphonse D'Amato. Senator D'Amato
wrote, in a letter to Majority Leader Trent Lott, that he was
``embarrassed" that Hormel's nomination had been held up by other
Republican Senators. He wrote, ``I fear that Mr. Hormel's nomination is
being obstructed for one reason, and one reason only: the fact that he
is gay.'' (Id.)
When I questioned him at the hearing about his remarks at the 1998
luncheon, Senator Ashcroft did not deny making them. Instead, he asked
us to ignore their clear import. I asked him directly: ``Did you block
his nomination from coming to a vote because he is gay?'' Senator
Ashcroft answered, ``I did not.'' I then asked ``Why did you vote
against him? And why were you involved in an effort to block his
nomination from ever coming to a vote?'' Senator Ashcroft implicitly
acknowledged that he did engage in blocking the nomination from coming
to a vote, saying,
Well, frankly, I had known Mr. Hormel for a long time. He
had recruited me, when I was student in college, to go to the
University of Chicago Law School. . . . 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. (1/17/01 Tr., p.191).
Senator Ashcroft then proceeded to claim, without directly addressing
the Hormel nomination, that ``[s]exual orientation has never been
something that I've used in hiring in any of the jobs, in any of the
offices I've held. It will not be a consideration in hiring at the
Department of Justice. It hasn't been for me.'' (Id, at 192).
I brought Senator Ashcroft back to the question of why he had opposed
James Hormel's nomination. I said: ``I'm not talking about hiring at
the department, I'm 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?'' (Id.) When evasion did not
work, Senator Ashcroft simply flatly refused to answer, stating, ``I'm
not prepared to redebate that nomination here today,'' and repeated his
claim that his opposition to the Hormel nomination was based on ``the
totality of his record.'' (Id, at 192-193). Three Senators asked the
nominee in written questions to specify the factors that led to his
opposition to James Hormel, but he continued to refuse to do so, citing
again ``the totality of Mr. Hormel's record'' as the basis for his
opposition.
The story does not end there. The implication of Senator Ashcroft's
remarks what some have called ``creepy'' about being ``recruited'' by
and ``knowing'' Mr. Hormel was that some personal experience with that
nominee played a role in his decision to block it. (New York Times,
January 20, 2001). Yet, by letter dated January 18, 2001, Mr. Hormel
expressed ``very deep concern'' about this implication since he could
not recall ``ever having a personal conversation with Mr. Ashcroft,''
``no contact with him of any type since . . . nearly thirty-four years
ago, in 1967.'' Mr. Hormel also clarified that he did not personally
``recruit'' John Ashcroft to law school; he had simply admitted him,
along with hundreds of other students, in his capacity as Dean of
Students. Mr. Hormel concluded, ``For Mr. Ashcroft to state that he was
able to assess my qualifications to serve as Ambassador based upon his
personal long-time relationship with me is misleading, erroneous, and
disingenuous.''
I am forced to agree with Mr. Hormel's assessment. There certainly
still has not been any forthright explanation from Senator Ashcroft for
his insistence that, contrary to the views of the President, the
Ambassador from Luxembourg, and the vast majority of his Senate
colleagues, Mr. Hormel would not ``effectively represent the U.S.'' in
Luxembourg. Indeed, given another chance to explain his position
through responses to written questions, Senator Ashcroft has simply
repeated his boilerplate language about the ``totality'' of Mr.
Hormel's record, adding no specificity beyond the fact that Luxembourg
is ``the most Roman Catholic country in all of Europe.'' He does not
explain the significance of this fact.
At the hearing, Senator Feingold asked Senator Ashcroft whether, as
Attorney General, he would permit employment discrimination against gay
men and lesbians, pointing in particular to Senator Ashcroft's public
statement that ``I believe the Bible calls [homosexuality] a sin, and
that's what defines sin for me.'' Senator Feingold stated that
``Attorney General Reno clarified that sexual orientation should not be
a factor for FBI clearances.'' Then he asked Ashcroft, ``As attorney
general would you continue and enforce this policy?'' Again, Senator
Ashcroft did not answer the question directly with a clear statement
against discrimination based on sexual orientation at the FBI, saying,
``I have not had a chance to review the basis for the FBI standard and
I am not familiar with it. I would evaluate it based upon conferring
with the officials in the bureau.'' In my view, the American people are
entitled to expect from
[[Page S600]]
their Attorney General more forthright and decisive leadership on the
simple question of whether the FBI will be permitted to discriminate on
the basis of sexual orientation. The correct answer to that question is
not ``maybe,'' it is ``no.''
This is troubling. Senator Ashcroft's answers raise serious question
about whether he would adopt a policy as Attorney General that a
person's sexual orientation could be a basis for denying a security
clearance. If sexual orientation can be used to deny a security
clearance for a government job, gay men and lesbians would be barred
from numerous government positions, including in the Justice
Department, as surely as if John Ashcroft, as Attorney General, were to
exclude them personally.
In October 1999, Senator Ashcroft spearheaded a campaign to defeat
the nomination of Missouri Supreme Court Judge Ronnie White to serve as
a federal district court judge. Like many Senators, I was deeply
troubled by Senator Ashcroft's sneak attack on Judge White, who was the
first nominee to a federal district court to be rejected on the floor
of the Senate in over 50 years. Senator Ashcroft's testimony to the
Committee did nothing to allay my concerns.
There can be no serious question that Senator Ashcroft distorted
Judge White's record. To give just one example, in one of the three
opinions that Senator Ashcroft cited as supposed evidence of a
``procriminal jurisprudence,'' Judge White took a narrower view of the
Fourth Amendment--and a broader view of the powers of the police--than
the U.S. Supreme Court took a few years later. That is to say, Senator
Ashcroft characterized Judge White as ``procriminal'' for taking a
position that was more pro-law enforcement than the position of a
majority of the conservative Rehnquist Court.
Senator Ashcroft has told us that he based his opposition to James
Hormel and other nominees on ``the totality of the record.'' In the
case of Judge White, the totality of the record was very different than
what Senator Ashcroft led his colleagues to believe. While I state
again and unequivocally that I do not charge Senator Ashcroft with
racism, I cannot help but think that he was willing to play politics
with Judge White's reputation in a manner that casts serious doubt on
his ability to serve all Americans as our next Attorney General. In my
mind, and in the minds of many Americans, he engineered a party-line
vote to reject Judge White not because Judge White was unqualified, but
because he wanted to persuade the voters of Missouri that John Ashcroft
was tougher on crime and more pro-death penalty than his Democratic
opponent. The voters saw through this ploy, and Senators should
consider it carefully in deciding whether to give their consent to this
nomination. In doing so, Senators may ask themselves whether a man who
used his public office to besmirch a respected judge for crass
political ends is the sort of man the American people deserve as their
Attorney General.
I want to discuss a few of the circumstances surrounding the White
nomination that cause me particular concern.
As an initial matter, I am disturbed by Senator Ashcroft's repeated
claims that he torpedoed Judge White at the urging of law enforcement
groups that had come forward to oppose the nomination. On the Senate
floor, Senator Ashcroft told his colleagues that law enforcement
officials in Missouri had ``decided to call our attention to Judge
White's record in the criminal law.'' (Congressional Record, October 4,
1999, at S11872). But after the Senate voted to reject the nomination,
the press reported that Senator Ashcroft had actually solicited
opposition to Judge White from at least some law enforcement officials.
(St. Louis Post-Dispatch, October 8, 1999). This detail--who contacted
whom came up at the hearing, and was at the center of more attempts by
Senator Ashcroft to shade the facts.
At the hearing, Senator Durbin noted while questioning Senator
Ashcroft that the Missouri Chiefs of Police had refused to accept his
invitation to oppose Judge White. Senator Ashcroft responded, ``I need
to clarify some of the things that you have said. I wasn't inviting
people to be part of a campaign.'' Senator Durbin followed up by
asking, ``Your campaign did not contact these organizations?'' The
nominee tried to side-step the issue by making a general statement
rather than responding directly to the question he was asked. He said,
``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 such a request to see if someone wants to make a comment
about such an issue.''
According to the St. Louis Post-Dispatch, Senator Ashcroft's office
contacted at least two police groups with respect to Judge White 's
nomination, and the contacts went well beyond a mere ``request to see
if someone wants to make a comment.'' The president of the Missouri
Police Chiefs Association--one of Missouri's largest police groups--
said that he was contacted by Senator Ashcroft's office and asked
whether the Association would work against the nomination. The
Association declined. Its president said that he knew Judge White
personally and had always known him to be ``an upright, fine
individual.'' (St. Louis Post-Dispatch, October 8, 1999.)
According to the same article, Senator Ashcroft's office also
solicited opposition to Judge White from the Missouri Federation of
Police Chiefs. Vice President Bryan Kunze said the group got involved
after Senator Ashcroft's office sent them information about the
nomination. Kunze is quoted as saying ``I never heard of Judge White
until that day.'' (Id.)
What does this mean? It means that there was a simpler, and more
direct answer to Senator Durbin's question: ``yes.'' Senator Ashcroft's
office did contact law enforcement organizations. And it did so not
just to ``see if'' they wanted ``to make a comment,'' but to solicit
their opposition to Judge White. At a minimum, Senator Ashcroft shaded
the truth when he suggested that his opposition to Judge White was
prompted by the concerns of Missouri's law enforcement community. While
some law enforcement officials eventually came to oppose Judge White's
nomination, some of that opposition was instigated and orchestrated by
Senator Ashcroft himself.
Moreover, although Senator Ashcroft did not acknowledge the fact,
many law enforcement officials strongly supported Judge White. At the
hearing, I put into the record a strong letter of support and
endorsement from the chief of police of the St. Louis Metropolitan
Police Department for Judge White, which Senator Ashcroft received
before the vote on Judge White's nomination. I also put into the record
another letter from the Missouri State Lodge of the Fraternal Order of
Police from shortly after the vote, stating on behalf of 4,500 law
enforcement officers in Missouri that they viewed Judge White's record
as, ``one of the judges whose record on the death penalty has been far
more supportive of the rights of victims than the rights of
criminals.'' Yet when Senator Ashcroft went to the floor of the Senate
in October 1999 to disparage Judge White's record as ``procriminal,''
he gave a one-sided account, ignoring the law enforcement officials who
had come out in support of Judge White's nomination or declined Senator
Ashcroft's invitations to work against him.
It is worth reviewing the history that led up to Senator Ashcroft's
denouncement of Judge White on the floor, because that history sheds
some light on the genesis of the supposed ``procriminal'' concerns.
President Clinton first nominated Judge White in June 1997. Like many
other judicial nominations during the Clinton Administration, the
nomination was held in limbo for more than two years before the Senate
finally voted on it in October 1999. During most of that time, there
was no mention of Judge White's judicial record. Senator Ashcroft has
said that he began to review Judge White's opinions ``upon his
nomination'' (Congressional Record, October 4, 1999, at S11871), yet he
did not elaborate on his reasons for opposing Judge White until August
1999, when he told reporters that Judge White had ``a very serious bias
against the death penalty.'' At the time, the death penalty was a hot
issue in Senator Ashcroft's re-election campaign against the late
Governor Carnahan, who had recently commuted the sentence of a death
row
[[Page S601]]
inmate at the request of Pope John Paul II. It was Governor Carnahan
who, in 1995, appointed Judge White to the Missouri Supreme Court.
When Judge White came before the Judiciary Committee in May 1998, he
was introduced by two members of Missouri's congressional delegation,
Senator Bond and Congressman Clay. Both urged Judge White's
confirmation. Congressman Clay also stated that he had discussed the
nomination with Senator Ashcroft, and that Senator Ashcroft had polled
Judge White's colleagues on the Missouri Supreme Court--all Ashcroft
appointees--and they all spoke highly of Judge White and said he would
make an outstanding federal judge. That was yet another set of
endorsements for Ronnie White that Senator Ashcroft did not himself
acknowledge when he spoke out on the nomination.
After the hearing, Senator Ashcroft submitted 21 written questions to
Judge White, 15 more than were submitted to the other nominees at the
same hearing. Among those questions were two concerning an action--
neither an unlawful nor an unethical one--that Judge White had taken as
a State legislator in 1992 that contributed to the defeat of an anti-
abortion bill supported by then-Governor Ashcroft. There was also one
question about a death penalty case in which Judge White had written a
lone dissent.
When Senator Ashcroft joined a handful of Senators and voted against
Judge White in Committee, he inserted a short statement in the
Committee records on May 21, 1998, to explain his vote. Making
reference to the anti-abortion bill that was the subject of those
written questions, he said: ``I have been contacted by constituents who
are 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.'' He made no mention of
concern about any other issue, including the death penalty case about
which he had also asked Judge White a written question. Apparently
then, as of May 1998, Senator Ashcroft's investigations into Judge
White's judicial record had not unearthed any ``procriminal'' concerns.
Senator Ashcroft's testimony and answer to written questions that
reproductive rights played no part in his opposition to Judge White is
flatly contradicted by both the questions he asked about the judge as a
state legislator calling ``an unscheduled vote that resulted in the
defeat of a measure designed to limit abortions,'' and the statement
Senator Ashcroft put in the Judiciary Committee mark up record in May
1998, in which he referred to Judge White's ``manipulation of
legislative procedures while he was a member of the Missouri General
Assembly'' and expressly stating that ``contribute[d] to my decision.''
This dissembling is disingenuous, but explains the troubling fact
that Senator Ashcroft did not fully question Judge White about his
death penalty decisions or law enforcement concerns at his hearings
before the Judiciary Committee. That is the purpose of nomination
hearings, as Senator Ashcroft well knows. At his own hearings, Senator
Ashcroft was afforded a full and fair opportunity to answer questions
and address concerns. Judge White did not have that opportunity. He was
ambushed on the floor of the Senate, with no opportunity to explain his
decisions or defend his reputation.
Judge White finally got that opportunity during the hearings on this
nominee, and I urge all Senators to read his testimony. He was
gracious, he was dignified, and he set the record straight. This is
what that record shows.
Ronnie White grew up in a poor, segregated neighborhood in St. Louis.
He worked his way through high school, college, and law school. He had
a distinguished legal career in private practice and as city counselor
for the City of St. Louis and lawyer for the St. Louis Police
Department. In 1989 he was elected to the Missouri legislature, where
he was twice selected to serve as chairman of the judiciary committee.
In 1995, he became the first African-American to serve on the Missouri
Supreme Court.
The Facts on Judge White's Capital Cases. At the hearing last week,
Senator Ashcroft admitted that he had characterized Judge White's
record as being ``pro-criminal,'' but claimed that he ``did not
derogate his background.'' I believe that Senator Ashcroft's attacks on
Judge White on the Senate floor went well beyond simply characterizing
his record. Senator Ashcroft suggested that Judge White had ``a
tremendous bent toward criminal activity'' (Congressional. Record,
October 5, 1999, at S11933) and ``a serious bias against a willingness
to impose the death penalty'' (Congressional Record, October 4, 1999,
at S11872), and argued that, if confirmed, ``he will use his lifetime
appointment to push law in a procriminal direction, consistent with his
own personal political agenda'' (Id.). In my 26 years in the Senate, I
have never heard an attack like that on the Senate floor against a
sitting judge. I can scarcely imagine anything more derogatory that
could be said about a judge than that he uses his office to pursue a
personal procriminal agenda. Such accusations should not be lightly
made. The facts show that they were baseless.
Fact one: Judge White voted to uphold the death penalty 40 times in
58 death penalty cases. In other words, he voted to uphold the death
penalty in about 70 percent of the capital cases that came before him.
One of Senator Ashcroft's own appointees to the Missouri Supreme Court,
the late Ellwood Thomas, had a much higher percentage of votes for
reversal of death sentences.
Fact two: In 55 out of 58 capital cases that came before Judge
White--that is 95 percent of the time--he ruled the same way as at
least one of his Ashcroft-appointed colleagues. Judge White dissented
in only seven out of 58 death penalty cases, and he was the sole
dissenter in only three of those cases. The other four times, one or
more of the Ashcroft judges agreed with Judge White that the defendant
was entitled to a new trial or a new sentencing hearing.
Fact three: In leading the campaign to defeat Judge White, Senator
Ashcroft specifically criticized just three cases in which Judge White
filed a lone dissent. In each case, Judge White's dissents were well-
reasoned and entirely defensible. The first was a 1996 case called
State v. Damask (936 S.W.2d 565), which raised the issue of the
constitutionality of drug interdiction checkpoints in two Missouri
counties. Police officers dressed in camouflage were stopping motorists
in the dark of night at the end of a lonely highway exit ramp and
looking for evidence to allow them to search their vehicles for drugs.
These stops were challenged by some motorists as a violation of the
Fourth Amendment's prohibition against unreasonable search and seizure,
but the Missouri Supreme Court decided that these were constitutional
law enforcement procedures.
Judge White filed a reasoned and respectful dissent. He agreed with
his colleagues that ``trafficking in illegal drugs is a national
problem of the most severe kind.'' He also agreed that traffic stops
such as these could be lawful, if conducted in a reasonable way.
However, he found, based on the specific facts of the case, that the
checkpoint operations at issue were unduly intrusive and therefore
unconstitutional.
Just a few months ago, a case with facts similar to the Missouri case
made its way to the U.S. Supreme Court. In City of Indianapolis v.
Edmond, 121 S. Ct. 447 (2000), a six-justice majority of the Court
found that drug interdiction checkpoints like the ones that were upheld
by the Missouri Supreme Court are unconstitutional per se. Indeed, the
Court went much farther in protecting the rights of motorists than
Judge White went in his dissent.
Judge White testified last week that the U.S. Supreme Court had
vindicated his decision to dissent in the Damask case. That is clear to
any competent lawyer reading the two cases. Yet before the Supreme
Court's ruling, Senator Ashcroft said that Judge White's dissent in
Damask revealed a ``tendency . . . to rule in favor of criminal
defendants and the accused in a . . . procriminal manner.''
(Congressional Record, October 4, 1999, at S11872). A fairer
characterization would be that Judge White faithfully followed the law
in striking a reasonable balance between the freedoms that we all enjoy
as motorists and the interests of law enforcement.
Senator Ashcroft has stubbornly refused to retract his criticism of
Judge White's dissent in Damask, notwithstanding the subsequent
decision by
[[Page S602]]
the U.S. Supreme Court vindicating Judge White's position. Instead,
Senator Ashcroft in his responses to written questions mischaracterized
the facts of Damask, claiming that ``the police had created a
checkpoint designed to stop only those who behaved in a way to justify
individualized suspicion.'' As is clear from the majority decision,
however, the police in Damask stopped all motorists who approached the
checkpoint, without any individualized suspicion of wrongdoing,
virtually identical to the fact in the Missouri case in which Judge
White dissented.
One would think that any Senator who characterized as ``procriminal''
a position taken by Justices O'Connor and Kennedy, among others, would
be embarrassed and quick to apologize. Yet we have yet to hear an
apology or even a retraction by Senator Ashcroft on this point.
The other two dissents that Senator Ashcroft cited as evidence of
Judge White's ``procriminal'' tendencies were filed in death penalty
cases: State v. Johnson, 968 S.W.2d 123 (Mo. 1998), and State v.
Kinder, 942 S.W.2d 313 (Mo. 1996). Both cases involved brutal and
shocking murders, and we heard a lot about those murders at the
hearings. While my heart goes out to the victims, I am troubled by the
implication of many of my Republican colleagues that those accused of
particularly egregious crimes are somehow undeserving of the fair trial
and due process rights guaranteed to all Americans. As Senator
Ashcroft's own models of conservative jurisprudence have written, ``the
more reprehensible the charge, the more the defendant is in need of all
constitutionally guaranteed protection for his defense.'' (Danner v.
Kentucky, 525 U.S. 1010 (1998) (Scalia, J., joined by Thomas, J.,
dissenting from the denial of certiorari)). Focusing on the egregious
facts of (rather than the legal analysis underlying) a death penalty
case is a disingenuous and inappropriate way of evaluating the
qualifications of sitting judges.
Judge White's dissents in Johnson and Kinder properly turned on the
legal issues in those cases. In Johnson, the key legal issue was
whether or not the defendant received constitutionally sufficient
assistance from his lawyer. In Kinder, the issue was whether the
defendant was entitled to a new trial with an unbiased judge. These
were difficult issues, and as many of my Republican colleagues have
acknowledged, reasonable minds could differ on how they should have
been resolved. Some respected legal commentators have reviewed the
facts in these cases and the relevant legal precedents and concluded
that Judge White was right to dissent. I especially urge all Senators
to read Stuart Taylor's thoughtful and thorough analyses of these cases
in the National Journal on October 16, 1999, and January 13, 2001.
It is of course the right and duty of all Senators to familiarize
themselves with a nominee's record before voting on his nomination. I
respect Senator Ashcroft's diligence in undertaking a review of Judge
White's decisions. What I do not understand are the apparent
distortions of Judge White's record, the intemperate attacks, and the
implication that judges should apply a lower standard of review in
capital cases. When Senator Ashcroft began his campaign against Judge
White, retired Missouri Supreme Court Judge Charles Blackmar--a
Republican appointee--said that Judge White's votes in capital cases
were ``not a significant diversion from the mainstream,'' and added
this strong criticism of Senator Ashcroft: ``The senator seems to take
the attitude that any deviation is suspect, liberal, activist and I
call this tampering with the judiciary because of the effect it might
have in other states that have the death penalty where judges, who
might hope to be federal judges, feel a pressure to conform and to vote
to sustain the death penalty.'' (St. Louis Post-Dispatch, August 21,
1999). As a strong believer in judicial independence, I share Judge
Blackmar's concern.
To conclude on this point, Senator Ashcroft's words and actions with
respect to the Ronnie White nomination raise serious concerns about his
sense of fair play, his willingness to demonize those with whom he
disagrees, and his respect for judicial independence. In my view, what
America needs is an Attorney General who examines the facts and the law
carefully and impartially and then articulates his positions
respectfully, not one who distorts the facts and plays politics with
the law.
In his first day of testimony, Senator Ashcroft stated, in response
to my questions, that he had opposed Bill Lann Lee, President Clinton's
nominee for Assistant Attorney General for Civil Rights, because he had
``serious concerns about his willingness to enforce the Adarand
decision, which was a recent decision of the United States Supreme
Court. . . . Mr. Lee did not indicate a clear willingness to enforce
the law based on that decision.'' (1/16/01 Tr., at p. 96). When I tried
to explore what Senator Ashcroft perceived to be Mr. Lee's failure in
this regard, Senator Ashcroft explained that when Mr. Lee was asked at
his confirmation hearing what the Adarand standard was, ``he did not
repeat the strict scrutiny standard of `narrowly tailored and directly
related. . . . He stated another standard.'' (Id, at 97). This is
simply not true.
When Bill Lann Lee testified before the Senate Judiciary Committee on
October 22, 1997, he had the following colloquy with Chairman Hatch:
Chairman Hatch: These cases [Croson and Adarand] would also
stand for the proposition, wouldn't they, that strict
scrutiny would be required in all governmental racial
classification matters?
Mr. Lee: Yes, that is correct, that strict scrutiny is
required and that properly designed and properly implemented
affirmative action programs are consistent with the strict
scrutiny test under the Fourteenth and Fifth Amendment.
Chairman Hatch: Would you agree that Adarand stands for the
proposition--the Supreme Court case of Adarand--stands for
the proposition that State-imposed racial distinctions are
presumptively unconstitutional, that that presumption can be
overcome only by a strong basis in evidence of a compelling
interest and should be narrowly tailored? Have I stated that
pretty correctly?
Mr. Lee: Yes, and I agree with that.
Chairman Hatch: All right . . . .
(Bill Lann Lee Confirmation Hearing, Senate Judiciary Committee,
October 22, 1997, Transcript of Proceedings, pages 41-42).
Moreover, when I asked Senator Ashcroft about Bill Lann Lee, he
referred to the District Court's decision on remand in the Adarand
case, which found unconstitutional the contracting affirmative action
program that is the subject of that litigation. He failed to note,
however, that the Tenth Circuit has since reversed that decision,
finding that the contracting program did in fact meet strict scrutiny.
Adarand Constructors v. Slater, 228 F.3d 1147 (10th Cir. 2000).
To this day, I do not understand Senator Ashcroft's opposition to the
nomination of Bill Lann Lee, but I do know that the purported reason he
gave at his own nomination hearing is simply not supported by the
record.
At the hearing, Senator Ashcroft and the witnesses called on his
behalf made claims about the diversity of his appointments to the state
courts and his cabinet while he was Governor. These claims were clearly
designed to rebut any inference that his actions and record with regard
to presidential nominees such as Judge Ronnie White, Bill Lann Lee, and
others, or his associations with Southern Partisan magazine or Bob
Jones University, reflected any fundamental insensitivities on his
part. Unfortunately, the claims made at the hearing about the diversity
of Governor Ashcroft's appointments do not withstand scrutiny when
compared to either his Republican predecessor in the Governor's office,
Senator Kit Bond, or his successor, Governor Mel Carnahan.
At the first day of the hearing, Senator Ashcroft stated: ``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.'' (1/16/
01 Tr., at p. 89). He repeated these claims the next day. (1/17/01 Tr.,
at p. 57).
The claim of appointing more African American judges than any
governor in Missouri history is deliberately deceptive. While Governor
from 1985 through 1992, John Ashcroft set a record at the time with
eight African American appointments to the bench,
[[Page S603]]
but this is only when compared to his predecessors, who had appointed
far fewer. His successor, the late Governor Mel Carnahan, appointed
twenty. (St. Louis Post-Dispatch, 1/11/01).
Also, while technically correct that Governor Ashcroft appointed the
first African-American on the Western District Court of Appeals, this
was not the first African American appointed to the appellate court in
Missouri, as might be implied. Judge Ted McMillian was appointed by
Warren Hearnes more than ten years earlier to the Eastern District
Court of Appeals. (See The Honorable Donald P. Lay, ``The Significant
Cases of the Honorable Theodore McMillian During His Tenure on the U.S.
Court of Appeals for the Eighth Circuit,'' 43 St. Louis U. L.J. 1269,
1270 (1999)). I point this out not to minimize Senator Ashcroft's
appointment of minority candidates, but simply to ensure that the
record is not exaggerated.
Jerry Hunter, former Missouri Labor Secretary, and Missouri Circuit
Judge David Mason, both of whom had been appointed by Governor
Ashcroft, testified in support of the nominee and applauded his record
of appointments of African-Americans while he was Governor. Mr. Hunter
was the only African-American or minority to serve in John Ashcroft's
cabinet, which is made up of fifteen department directors, during his
first four years. (1/18/01 Tr., at pp.179-180). In addition, although
the Mound City Bar Association, which Mr. Hunter described as ``one of
the oldest black bar associations in this country,'' commended Governor
Ashcroft in 1991 upon his appointment to the bench of an African-
American female judge, this same organization, by letter dated January
12, 2001, has made clear that ``this is not a nomination that we can
support.'' (Id., at p. 180).
Senator Ashcroft as Governor of Missouri claims to have taken
``special care'' of gender diversity as well, yet his record of
appointments of women to the judiciary is ``abysmal.'' (1/18/01 Tr., at
p. 60). He carefully testified that he named two women to the appellate
court, the first in 1988; the other to fill the same position when the
first woman moved up to the Supreme Court. He does not mention that
this did not happen until nearly three years after he took office and
only after front-page stories in local newspapers made clear that
``Missouri lags behind most other states in the selection of women for
judgeships,'' (St. Louis Post-Dispatch, October 22, 1986), and a
national survey by the National Women's Political Caucus ranked
Governor Ashcroft ``near the bottom among state executives in
appointment of women to Cabinet-level posts. . .'' (St. Louis Post-
Dispatch, October 24, 1986). By contrast, the same survey put Governors
Madeleine Kunin of Vermont and Bill Clinton of Arkansas among the top
ten states for the percentages of women in their cabinets. (Id.).
A study on the number of women appointed to the judiciary published
in 1986 found that Missouri was one of only five states with
intermediate appellate courts that had never had a female jurist above
the trial court level. (Karen Tokarz, ``Women Judges and Merit
Selection under the Missouri Plan,'' 4 Washington Univ. Law Quarterly,
903, 916 (1986)). This study suggests that ``the attitude of the chief
executive may affect women's access to the judiciary,'' and cites as
examples that the ``explicit affirmative efforts by Governor
Christopher Bond and President Jimmy Carter to recruit women applicants
correlate with increased numbers of women judicial appointees during
their tenures.'' (Id., at 942). By comparison, the study notes that at
the time the article was written, then Governor Ashcroft had selected
no women for the 19 judicial appointments he had made ``nor has
Ashcroft appointed any women for the nine interim appointments.''
(Id.).
John Ashcroft's low numbers of women appointments to the judiciary
were not due simply to a failure to have women's names recommended by
nominating commissions. Press accounts report that women candidates
appeared on panels presented to then-Governor Ashcroft, but in the
incidents reported, he appointed men. (St. Louis Post-Dispatch, March
20, 1988). Moreover, as Governor, John Ashcroft did even more poorly
with so-called ``interim appointments'' of judges outside the merit
selection plan, where governors have free rein and are not limited by
the recommendations of a selection panel. In two terms, Governor Bond
had named eight women out of 77 interim appointments. Governor Ashcroft
named only two women out of 51 interim appointments. (``Report on the
Missouri Task Force on Gender and Justice,'' 58 Missouri Law Rev. 485,
688 n. 746 (1993)).
In short, Senator Ashcroft deserves credit for appointing women to
judicial posts, but the amount of credit he should be given depends on
the context. John Ashcroft named only eleven women out of 121 judicial
appointments during his eight years as governor. Id. at 702, Table 1.
Not only did his successor appoint nearly three times that number in
the equivalent time period but this number was even surpassed by his
predecessor, Governor Bond, who appointed twelve women during two
terms. (58 Mo. Law Rev. at 702, Table 1).
Governor Ashcroft's testimony on the diversity of his appointments is
technically accurate, but in my view was misleadingly framed to portray
him as a leader on diversity. In truth, the record shows little
evidence of urgency or strong advocacy for diversity. Both his actual
record and the manner in which he portrayed it to the Committee are
troubling.
John Ashcroft has engaged in a pattern of using inflammatory and
intemperate language to question the authority and legitimacy of the
United States Supreme Court and lower federal courts in a way that
raises serious concern in my mind about his suitability for the job of
Attorney General and whether he is the appropriate role model for the
job of the Nation's chief law enforcer. Worse, while sworn to uphold
the Constitution, he has backed up his words and disrespect for Supreme
Court precedent by sponsoring legislation both in Missouri and in the
U.S. Senate that is patently unconstitutional.
John Ashcroft has taken many opportunities to bash the federal
judiciary. In several public speaking engagements he has chosen to
attack the decisions of federal courts. (Speech to the Claremont
Institute, Los Angeles, California, October 13, 1997, available through
www.claremont.org; Appearance on ``Jay Sekulow Live'' Radio Show, July
24, 1998, available through www.jaylive.com.) The most extreme example
of Senator Ashcroft's rhetorical attacks on the Supreme Court is the
speech he gave in March 1997 to both the annual meeting of the
Conservative Political Action Conference and to the Heritage
Foundation. In ``Courting Disaster: On Judicial Despotism In the Age of
Russell Clark,'' he characterized the Supreme Court's landmark abortion
decisions in Roe v. Wade and Casey as ``illegitimate.'' He called the
Justices who struck down an Arkansas congressional term limit law
``five ruffians in robes,'' and said that they ``stole the right of
self-determination from the people.'' He asked, ``have people's lives
and fortunes been relinquished to renegade judges, a robed,
contemptuous intellectual elite fulfilling Patrick Henry's prophecy,
that of turning the courts into, quote, `nurser[ies] of vice and the
bane of liberty?' '' He also said ``We should enlist the American
people in an effort to rein in an out-of-control Court.''
The ``five ruffians in robes'' to whom Senator Ashcroft referred are
members of the Rehnquist Supreme Court,
which is a most conservative court--sometimes activist but decidedly
conservative. I have heard Justice Anthony Kennedy and Justice Ruth
Bader Ginsburg called many things but never ``ruffians.''
I find this sort of rhetoric deeply troubling. I certainly understand
disagreeing with a Supreme Court decision. Lately, I have found myself
strongly disagreeing with a number of decisions by the Court. I took
strong exception to the Court's intervention in Bush v. Gore, but
having noted my disagreement in respectful terms, I said that I
accepted the Court's decision, and believed that all Americans should
do the same.
When I asked Senator Ashcroft about these comments, he did not
disavow them but simply noted that ``I don't think it'll appear in any
briefs.'' (1/17/01 Tr., at p. 263). I should hope not. But I would also
hope that a public official sworn to uphold the Constitution would not
go running around denying
[[Page S604]]
the legitimacy of Supreme Court decisions that, in our constitutional
system, are the ultimate authority on what the Constitution means.
These comments raise serious issues about a fundamental qualification
for the job of Attorney General: Senator Ashcroft's ability and
readiness to discharge the obligatory oath to uphold the Constitution.
Senator Ashcroft's legislative career is not reassuring in this
regard. While it is true, as Senator Ashcroft stressed, that a
Senator's legislative role is different from an Attorney General's law
enforcement role, both take the same oath to uphold the Constitution,
so the one is not irrelevant to the other.
As a Senator, John Ashcroft displayed little reverence for the
Constitution as written and as interpreted by the Supreme Court. It is,
of course, the privilege of Senators to propose constitutional
amendments, but in his one six-year term here, Senator Ashcroft stood
out among his colleagues in his eagerness to amend the Constitution
whenever its terms dictated a result he did not like. He did not like
Roe v. Wade, so he sponsored a Human Life Amendment, which would have
banned all abortions except where necessary to protect the life of the
mother. He did not like the way the ``five ruffians in robes''
interpreted the Constitution in the Term Limits case, so he sponsored
Term Limits Amendments. In total, Senator Ashcroft sponsored or
supported constitutional amendments on no less than eight different
topics in his six years in the Senate.
That is a distinctly un-Madisonian record. James Madison told
posterity that constitutional amendments should be limited to ``certain
great and extraordinary occasions.'' Madison's wise counsel, like the
Constitution itself, has stood the test of time: the Constitution has
only been amended 17 times in the past 200 years. But John Ashcroft
disagrees with James Madison on the spirit of Article V, the Article
governing the amendment process. Indeed, he even introduced a proposed
amendment, supported by no other Senator, to change Article V itself.
In a Dallas Morning News article dated January 17, 1995, he was quoted
as saying that he wanted to ``swing wide open the door'' to let the
States decide on new amendments. His proposed amendment would have done
so. Even more than the other amendments he supported, Senator
Ashcroft's amendment to Article V would have severely cut back on the
constitutional role of Congress, by allowing bare majorities in three-
quarters of the States to amend the Constitution even if a majority of
Congress disagreed. This radical proposal sits in stark contrast to the
claim Senator Ashcroft makes today--in his response to my written
question he says that his efforts to amend the Constitution as a
Senator ``reflect a fundamental respect for the Constitution and for
the mechanism that that documents for altering the text.''
More troublesome is Senator Ashcroft's record of introducing
unconstitutional legislation, particularly in the area of reproductive
rights. In both Missouri and in the U.S. Senate, Senator Ashcroft has
been an unabashed advocate of banning abortion in all circumstances,
except to save the life of the mother, even though this position runs
directly counter to the fundamental rights set forth in Roe v. Wade. He
has also been an unabashed critic of this seminal decision, stating as
recently as 1998 that, ``[c]learly, the Supreme Court, unguided by any
constitutional text, has written themselves into a position that is
legally, medically and morally incoherent.'' (Congressional Record,
June 5, 1998, at S5697).
In 1981, when he served as Attorney General of Missouri, he testified
before the Senate Judiciary Subcommittee on Separation of Powers on a
bill sponsored by Senator Helms and Representative Hyde. The bill
stated ``the life of each human being begins at conception,'' and would
have allowed each state to outlaw and criminalize abortion, without any
exception for victims of rape or incest or even to save the life of the
mother. (Hearings on S. 158 Before the Subcomm. on Separation of
Powers, Senate Comm. on the Judiciary, 97th Cong. 1105-1109 (1981)).
John Ashcroft made clear his view of both Roe v. Wade and the workings
of the Supreme Court in his introductory remarks, stating:
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.
(Id.).
In a chilling reminder of stringent State anti-abortion laws in
effect before Roe v. Wade, Missouri Attorney General Ashcroft
reminisced that:
We had a law which specified that aborting a child
subjected a person to a manslaughter charge, but there was a
clearly maintained exception for cases in which the mother's
life was in danger.
True to his 1981 testimony, he was actively involved in anti-abortion
efforts as Missouri's Attorney General. He defended a state statute
that, among other restrictions, would have required all abortions after
12 weeks to be performed in a hospital. The Supreme Court recognized
that such a requirement would effectively increase the cost of such
abortions dramatically and make them all but impossible to obtain for
anyone but the wealthy, and therefore ruled that this requirement was
unconstitutional. Planned Parenthood v. Ashcroft, 462 U.S. 476, 482
(1983). In a brief he submitted to the U.S. Supreme Court in defense of
that law, John Ashcroft argued that, in establishing the in-hospital
requirement, ``Missouri has acted precisely within the parameters of
Roe v. Wade.'' (Brief for the Cross-Petitioners).
While defending the constitutionality of a state law is the
appropriate role of the attorney general, he has also aggressively
tested the limits of Roe v. Wade as a legislator. In 1986, as Governor
of Missouri, John Ashcroft signed a sweeping anti-abortion bill that
stated, among other things, that ``life begins at conception.'' The
Supreme Court declined to assess the constitutionality of that
provision, while upholding other parts of the law. Webster v.
Reproductive Health Services, 492 U.S. 490 (1989).
His legal success in Webster prompted Governor Ashcroft to appoint a
state task force to consider additional measures the state could enact
to restrict reproductive rights. Despite the complexity and volatility
of this issue, he made no effort to develop a consensus but instead
indicated that the group should not have ``drawn-out hearings'' and he
only appointed members who shared his ardent anti-abortion views. This
was a polarizing action. Indeed, legislative leaders reportedly
``declined to nominate members to the task force, saying it was going
to end up stacked anyway in favor of one side of the issue.'' (St.
Louis Post-Dispatch, August 9, 1989). Harriett Woods confirmed at the
nomination hearing that ``the leaders of the legislature were so
outraged that they said they wouldn't participate.'' (1/18/01 Tr., at
p. 63). Not surprisingly, the preordained conclusions of the Task Force
on Unborn Life report, issued in January 1990, were that ``the ultimate
goal of legislation and policy-making in the State of Missouri should
be . . . the imposing of legal restrictions to reduce the number of
abortions.''
Shortly after release of that report, Governor Ashcroft announced his
support for legislation, to become known as Missouri Senate bill 339,
that would have criminalized abortions performed for eighteen different
reasons, including ``to prevent multiple births from the same
pregnancy,'' ``the failure of a method of birth control,'' and ``to
prevent having a child not deemed to be wanted by the mother or
father.'' No exception for rape or incest was allowed. To add to the
burdens on a woman seeking an abortion, this legislation would have
required a pregnant woman to file an affidavit stating the reasons for
the abortion, apparently subjecting her to criminal liability for
perjury if she did not fully disclose in a document to be filed with
the abortion facility her most personal, confidential reasons for
exercising her right to choose. Furthermore, the bill would also have
allowed the spouse or father of the ``unborn child'' and the state
Attorney General to intervene in court to stop the abortion. This
extreme legislation failed in the state legislature because it lacked
an exception for cases of rape and incest. (St. Louis Post-Dispatch,
March 28, 1991).
When I consider the moral, ethical and religious dilemma that parents
face when they learn that a pregnancy is multiple and that the best
chance for normal, healthy births may be to have
[[Page S605]]
selective fetal reduction, I shudder at proposed legislation that would
make such a difficult decision a criminal one.
More disturbing is Senator Ashcroft's effort, as part of his
confirmation evolution, to distance himself from this legislation. He
acknowledges in response to my written questions that Missouri Senate
Bill 339 might not be constitutional, but asserts that (1) he had ``no
specific recollection'' of the bill; (2) ``it appears from press
reports that representatives from my office may have expressed interest
in seeing the bill passed out of committee''; (3) ``[w]hile I was
governor, it was my policy to refrain from opining on whether I would
sign a bill until after a bill actually passed the legislature'' and
(4) ``this bill did not prevent abortions attributable to rape, incest
or a ``bona fide, diagnosed health problem''. (Emphasis in original).
Each of these assertions are belied by the public record.
First, Senator Ashcroft's failure of recollection about this
legislation is difficult to credit. In his State of the State Address
on January 9, 1990, he said: ``within the next week, I will announce my
support for concepts that would enhance our capacity to protect unborn
children.'' Shortly thereafter, on January 19, 1990, he issued a
statement saying, ``Today I am proposing that Missouri ban abortions
for birth control, sex selection, and racial discrimination.
Missourians reject multiple, birth control abortions. . . I am grateful
for these proposals and I would welcome an opportunity to sign their
protections for unborn children and mothers into law as an alternative
to the continuation of abortions.'' These specific reasons for banning
abortion were part of Missouri Senate bill 339. Senator Ashcroft failed
to provide the Committee with these speeches, but they are documented
in contemporaneous press reports. (See St. Louis Post-Dispatch, January
10, 1990 and January 20, 1990).
Second, Senator Ashcroft is wrong when he says only his
``representatives . . . expressed interest.'' In addition to the
speeches cited above, in which he expressly supported the terms of this
legislation, when the bill was being debated in the Missouri Senate,
then-Governor Ashcroft reportedly got personally involved in pressuring
a swing vote. ``Gov. John Ashcroft had telephoned Singleton to urge his
support for a bill barring virtually all abortions'' [referring to
Senate Bill 339]. St. Louis Post-Dispatch, March 28, 1991.
Third, Senator Ashcroft is wrong when he says he refrained from
opining about signing the bill. Contemporaneous press reports note that
``[t]he governor's proposal would join two bills that would outlaw most
abortions in Missouri. Ashcroft said he would sign those measures into
law `as an alternative to the continuation of abortions.' '' (St. Louis
Post-Dispatch, January 20, 1990).
Finally, Senator Ashcroft is wrong when he says the bill did ``not
prevent abortion attributable to rape, incest''. The bill itself
provides no such exceptions and, in fact, the bill failed because in
the view of the ``swing vote'' ``the proposal went too far. . . it
failed to assure the continued legality of abortions in cases involving
rape or incest.'' (St. Louis Post-Dispatch, March 28, 1991).
We are all aware that during his time in the Senate, John Ashcroft
was among the most avid of anti-abortion legislators. He has
cosponsored the so-called ``Human Life Act,'' which states that ``the
life of each human being begins at fertilization.'' This legislation
would not only ban all abortions, but also have the effect of outlawing
the most common forms of contraception, including the birth control
pill and the IUD.
At the nomination hearing, I asked a panel of witnesses that included
both supporters and opponents of this nomination, and was composed
largely of experts on reproductive rights issues, whether anyone
disagreed that the Human Life Act was patently unconstitutional on its
face. No one expressed disagreement, or disputed me when I said: ``I'll
take it by your answers, everybody feels it's unconstitutional.'' (1/
18/01 Tr., at p. 80).
In response to my written questions, Senator Ashcroft has now
conceded, as part of his confirmation evolution, that, as introduced,
the Human Life Act of 1998 was ``not constitutional under Roe and
Casey,'' thus acknowledging that while sworn to uphold the
Constitution, he knowingly proposed unconstitutional legislation. His
explanation--``I thought that [the legislation] had the potential to
promote a discussion that could have led to the passage of legislation
that would have been constitutional under Roe and Casey''--is
inconsistent with his statement on introduction of the bill: ``I
believe that our proposed Human Life Act is a legitimate exercise of
Congressional power under Section Five of the Fourteenth Amendment''
(Congressional Record. 6/5/98, S5697).
There is no doubt that John Ashcroft's support for unconstitutional
legislation limiting reproductive rights stems from his genuine and
heart-felt antipathy for the woman's right to choose--her right to
choose not only whether to be pregnant but also the form of
contraceptive which works best for her. Limiting access to
contraceptives is, for me, a significantly troubling aspect of John
Ashcroft's record.
For example, when he testified before the Senate in 1981, opponents
of the Helms-Hyde bill at issue made clear that an important
consequence of a law mandating that life begins at conception would be
to permit states to ban multiple forms of popular contraceptives. One
expert physician explained, ``[t]his bill, if enacted into law, will
prohibit the use of such commonly employed contraceptives as certain
birth control pills and intrauterine devices because these forms of
birth control prevent implantation into the uterus of the fertilized
ovum that has, by legal decree, been made a person.'' (Hearings on S.
158 Before the Subcomm. on Separation of Powers, Senate Comm. on the
Judiciary, 97th Cong., supra, at p. 51, testimony of Dr. Leon
Rosenberg).
Short of federal legislation, John Ashcroft took other steps to limit
access to contraceptives at the local level. In 1980, as Missouri's
Attorney General, he issued a legal opinion designed to undermine the
state's nursing practices law. He opined that the giving of information
about and dispensing of condoms, IUDs and oral contraceptives, and
other basic gynecological services by nurses constituted the criminal
act of the unauthorized practice of medicine, even though these
services were at the time routine health practices provided by Missouri
nurses, including within the State's own county health departments. As
a result, the State Board of Registration for the Healing Arts
threatened certain physicians and nurses with a show cause order as to
why criminal charges should not be brought against them. The attorney
who represented these nurses and physicians, Frank Susman, testified at
the nomination hearing that:
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. (1/18/01 Tr., at p. 75).
In a lawsuit designed to resolve this matter, Attorney General
Ashcroft intervened to block the nurses from providing these family
planning services, but a unanimous Missouri Supreme Court struck down
the nominee's interpretation of the Nursing Practice Act. Sermchief v.
Gonzales, 660 S.W.2d 683 (1983).
Mr. Susman testified that the nominee has ``at every opportunity . .
. sought to limit access to and to require parental consent for not
only abortion, but for contraception as well.'' (1/18/01 Tr., at p.
76). Indeed, in the Senate, Senator Ashcroft was the sole sponsor of
legislation that would require parental consent before ``an
abortifacient'' or ``contraceptive drugs or devices'' are dispensed to
a minor through federally-subsidized programs. (S. 2380, in 105th
Congress; S. 3102 in 106th Congress).
Set against this record, John Ashcroft's testimony that he accept[s]
Roe and Casey as the settled law of the land and that he will follow
the law in this area'' seems, at a minimum, implausible. (1/16/01 Tr.,
at p. 91).
Religious organizations perform wonderful acts of compassion and
charity and play a critical role in helping those most needy in our
country and in filling gaps left by government programs. Yet, our
Constitution obligates us to ensure that church and state remain
[[Page S606]]
separate, to protect the religious beliefs of all of our citizens from
government interference, and to protect the rights of those who do not
believe. This obligation means that any use of religious organizations
to provide social services must be structured with extraordinary care,
and that there be separation between proselytizing and charity. John
Ashcroft has been a leading proponent of the most extreme ``charitable
choice'' policies, under which religious organizations would not even
have to avoid religious proselytizing while distributing federal
benefits.
His deference to religious groups is such that, as Governor, he even
opposed laws aimed at ensuring that church-run day care centers met the
same basic health and safety requirements (e.g., smoke detectors and
fire exits) that applied to all other day care centers because, as he
put it in his response to my written questions, of ``the need to
protect religious institutions from excessive entanglements with
government.'' Missouri was one of a small group of States that did not
apply ordinary health and safety requirements to day care centers run
by religious organizations. (St. Louis Post-Dispatch, June 13, 1985).
Nevertheless, John Ashcroft threatened to veto bills aiming to apply
these requirements. (UPI, December 3, 1984). The extremeness of this
position was demonstrated by the testimony of James Dunn, who recounted
how a move to apply safety regulations to religiously-run child care
centers in Texas were opposed by only three out of 600 such centers (1/
19/01 Tr., at p. 73).
Senator Ashcroft has also not been forthcoming in response to
straightforward questioning concerning his views of the Supreme Court's
First Amendment jurisprudence. He told the Christian Coalition in 1998
that ``a robed elite have taken the wall of separation built to protect
the church and made it a wall of religious oppression.'' But when I
asked him in writing to specify which court decisions he was referring
to, he offered no response. Similarly, I asked him about his attitude
toward the Supreme Court's 1987 decision in Edwards v. Aguillard, which
held that States may not forbid the teaching of evolution when
``creation science'' is not also taught. He would not say whether he
agreed with the decision or not, and he would not provide any examples
to support his 1997 claim that ``over the last half century, the
federal courts have usurped from school boards the power to determine
what a child can learn.''
John Ashcroft presents himself as a man of great certitude--we did
not hear any regret from him during his testimony about his appearance
at Bob Jones University, his interview with Southern Partisan magazine,
or his reference to former Reagan Administration press secretary Jim
Brady as the ``leading enemy'' of responsible gun owners. In his
written responses to questions from members of the Committee, he
bypassed further opportunities to reflect on his controversial
statements and actions. He can be fairly characterized as seeing issues
as sharp contests between right and wrong, and I am sure that he
believes he chooses the right. But I am concerned that his certitude
may make him insensitive to the actual impact of his actions on
individual American families and citizens. I think in particular of the
story of Pete Busalacchi, who submitted written testimony to the
Judiciary Committee.
Pete Busalacchi is a Missouri man and was one of John Ashcroft's
constituents. Almost 15 years ago, his teenage daughter, Chris
Busalacchi, was grievously wounded in a car crash. According to Mr.
Busalacchi, his daughter's doctors told him that she would remain in a
persistent vegetative state for the remainder of her life. (Busalacchi
testimony, p. 1). After more than three years had passed since the
accident, during which time Chris Busalacchi never recovered from her
injuries, Mr. Busalacchi sought to move his daughter to Minnesota. He
planned to seek further medical opinions and consider removing her
feeding tube if the medical consensus continued to be that she had no
hope of recovery. (Id. at p. 2). Instead, the Ashcroft Administration
obtained a restraining order preventing Mr. Busalacchi from removing
her from the state, launching a two-year battle seeking to prevent Mr.
Busalacchi from making determinations about his daughter's medical
treatment. (Id.) Pete Busalacchi testified that John Ashcroft, through
his administration, injected his ``political and religious views into
[the Busalacchi] family's tragedy.'' (Id. at p. 1). When informed of
the way Mr. Busalacchi felt and asked in writing whether his
administration had shown the proper respect for the Busalacchi family
in such a difficult time, John Ashcroft simply said, ``Yes.'' He made
no acknowledgment that this tragedy even presented a difficult case,
nor did he express compassion for the family.
President Bush announced that John Ashcroft would be his nominee for
Attorney General on December 22, 2000. The choice of a controversial
nominee was his alone. Despite the controversy surrounding this
nomination, we proceeded expeditiously to schedule nomination hearings,
as requested by then President-Elect Bush, even before we had received
the formal nomination, a complete FBI background report or Senator
Ashcroft's complete response to the standard Committee questionnaire.
As the Chairman of the Judiciary Committee for the three-week period
from the beginning of the new 107th Congress until the Inauguration, I
pledged to conduct the nomination hearing for John Ashcroft in a full,
fair, and thorough manner. I believe this pledge was amply fulfilled. I
conferred regularly with Senator Hatch to ensure that every single
witness from whom the nominee and his supporters wished to hear were
called as witnesses. I also provided a fair amount of time and
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.
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. Being
thorough, and giving a fair hearing to supporters and opponents of the
nomination, is also what fairness to the nominee requires. I and others
put tough questions to John Ashcroft so that he would have a fair
opportunity to respond to our concerns, instead of being ambushed on
the Senate floor without an opportunity to respond, as had happened to
Ronnie White.
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
[[Page S607]]
Democrats in March 1925 to defeat the nomination narrowly.
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,
Vermont, who was immediately confirmed and was the only Vermonter ever
to serve as the Attorney General of the United States.
It has been more than 25 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. It has been more
than 130 years since a President has chosen to nominate a former
Senator after he lost his bid for reelection to the United States
Senate to be Attorney General. It is not since President Grant
nominated George Williams to be Attorney General in 1871 that we have
had a former Senator nominated to this important post after being
rejected by the people of his home State.
The position of Attorney General is of extraordinary importance, and
the judgment and priorities of the person who serves as Attorney
General affect 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, and his or
her duties are not just administrative or mechanical. 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 arguments to make to the Supreme Court, other
federal courts and State courts on behalf of the United States
Government. The Attorney General exercises broad discretion, largely
unreviewed by the courts and only sparingly reviewed by Congress, over
how to allocate that $20 billion budget and how to distribute billions
of dollars a year in law enforcement assistance to State and local
government, and coordinates task forces on important law enforcement
priorities. The Attorney General must also set those priorities, and
make tough decisions about which cases to compromise or settle. A
willingness to settle appropriate cases once the public interest has
been served rather than pursue endless, divisive, and expensive
appeals, as John Ashcroft did in the Missouri desegregation cases, is a
critical qualification for the job.
There is no appointed position within the Federal Government that can
affect more lives in more ways than the Attorney General, and no
position in the cabinet more vulnerable to politicization by one who
puts ideology and politics above the law. 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.''
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. The Attorney General has historically been called upon to
lead the Nation in critical civil rights issues, to unite the Nation in
the pursuit of justice, and to heal divisions in our society. America
needs an Attorney General who will fight for equal justice for all and
win the confidence of all the people, not one with a record of missed
opportunities to bring people together.
I do not have the necessary confidence that John Ashcroft can carry
on this great tradition and fulfill this important role. Therefore, I
cannot support his nomination.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Bingaman). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. VOINOVICH. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. VOINOVICH. Mr. President, I ask unanimous consent I be permitted
to speak in morning business for up to 15 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________