[Congressional Record Volume 147, Number 12 (Tuesday, January 30, 2001)]
[Senate]
[Pages S695-S701]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      NOMINATION OF JOHN ASHCROFT

  Mr. ALLARD. Mr. President, I come to the floor this evening to lend 
my support to President Bush's nomination of John Ashcroft to be the 
next United States Attorney General. He is another individual in the 
Senate whom I have always viewed as quite honorable.
  It is the constitutional right and duty of each President to appoint 
Cabinet Members who will help serve the citizens of this great country 
during their tenure. I believe President Bush has made a wise choice in 
John Ashcroft as a member of his Cabinet.
  John Ashcroft is a man of great honor and high personal integrity. He 
will bring these much needed characteristics to the office of the U.S. 
Attorney General. I have no doubt about that. He has had a long and 
distinguished career serving the people of Missouri and the people of 
the United States. I am confident he has the experience to fulfill the 
duties of this position.
  Those who defended President Clinton to the death are now attacking 
one of the most honorable individuals of the Senate as less than 
honorable. This was most evident by Senator Ashcroft's gracious 
concession to his opponent in his Senate race in Missouri.
  John Ashcroft served as Missouri's attorney general from 1976 to 
1985, where he worked tirelessly to enforce Missouri State laws and 
chaired the National Association of Attorneys General; having been 
supported in that position, I might add, by both Democrats and 
Republicans. After serving his home State as their top law enforcement 
agent, he was elected as Missouri's 50th Governor in 1984. He was 
reelected in 1988 to a second term, where he received 64 percent of the 
vote.
  It was during his second term that he was recognized as a leader 
among his colleagues and was named chairman of the National Governors' 
Association. Again, he was supported by both Democrats and Republicans.
  In 1994, John Ashcroft was elected by the people of Missouri, this 
time to serve his State in the U.S. Senate. While serving in the 
Senate, Senator John Ashcroft was a member of the Judiciary Committee 
as well as chairman of the Judiciary Subcommittee on the Constitution. 
His record has shown a strong commitment to upholding the Constitution 
and the rule of law equally and fairly.
  Throughout this grueling nomination process, Members on the other 
side of the aisle have questioned John Ashcroft and, in some cases, 
even accused him of allowing race to affect his decision on judicial 
nominees.
  There is absolutely no evidence that backs up these absurd 
allegations.
  Let me remind Members of this body that as a United States Senator 
John Ashcroft supported 26 of 28 African American Judicial nominees 
sent to the Senate for confirmation by the President.
  As the Governor of Missouri, John Ashcroft nominated eight African 
American judges, including the first ever to the court of appeals in 
the state. He appointed three African American members to his cabinet 
while he was the chief executive of the state of Missouri. He supported 
and signed into law Missouri's Martin Luther King, Jr. holiday. He 
supported and signed the law that established Scott Joplin's house as 
the first and only historic site honoring an African American citizen. 
He led the fight to save independent Lincoln University, founded by 
African American soldiers.
  He established an award, emphasizing academic excellence, in the name 
of George Washington Carver. I believe John Ashcroft wants equal 
opportunity extended to all.
  Over the last few weeks we have heard from a number of people who 
have questioned the nomination of John Ashcroft. I would like to take a 
few moments to mention some of the groups who have endorsed the nominee 
for Attorney General:
  National District Attorney's Association, Fraternal Order of Police, 
International Brotherhood of Police Officers, Law Enforcement Alliance 
of America, National Sheriffs Association, Missouri Police Chiefs of 
Police, National Victims Constitutional Amendment Network, Victims of 
Crime United, Citizens for Law and Order, Justice for Homicide Victims, 
Justice for Murder Victims, National Organization of Parents of 
Murdered Children, National Association of Manufacturers, United States 
of Commerce, Associated Builders and Contractors, American Farm Bureau 
Federation, and the American Insurance Association.
  I could go on and on and continue to name a total of some 263 groups 
that have voiced their support for John Ashcroft to be the next 
Attorney General.
  John Ashcroft is clearly qualified for the job of U.S. Attorney 
General.
  He understands what is expected of the office. During his hearings he 
summed up his duties in one statement:

       My responsibility is to uphold the acts of the legislative 
     branch of this government and I would do so and continue to 
     do so in regard to the cases that now exist and further 
     enactments of the Congress.

  John Ashcroft is a man of unquestionably high character and morals 
who has the knowledge and experience to serve our Nation with justice 
and excellence as our Nation's next Attorney General.
  Thank you Mr. President, I yield the floor.
  Mr. HUTCHINSON. Mr. President, I want to take just 1 minute to say a 
word of commendation for my colleague, John Ashcroft. As the Judiciary 
Committee, at this very hour, prepares to meet for a vote on his 
confirmation, I say that this man of honor and integrity has gone 
through an unprecedented ordeal in his desire to serve this country as 
Attorney General.
  I cannot imagine any person who comes to that position with greater 
qualifications or a greater sense of integrity. I do not believe my 
colleagues on either side of the aisle would question this man's 
commitment nor his faith. In fact, I suggest no one would argue but 
that he is the man of deepest faith in this body, and yet that very 
faith commitment has been turned on its head to make it an issue 
against his confirmation. I find that astounding and very 
disappointing.
  The fact that people would ask, can John Ashcroft enforce the laws 
because of his religion and his faith--John had the best answer to it 
when he said before the Judiciary Committee: I will enforce the laws of 
this land because of my faith. As someone who shares much of the same 
faith as John Ashcroft, I can relate to and understand exactly what 
John is saying.
  Though he may hold deep convictions--and he may or may not agree with 
all the laws of this land--it is because of his deep faith that he 
knows he must enforce the laws of this land--and will.
  Who in this body would question his sincerity or his honesty? And as 
he stood before the Judiciary Committee, and sat before that Judiciary 
Committee, and took that oath to tell the

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truth, and said he would enforce the laws of this land--whether he 
agreed with them or not--who would we be and which of my colleagues 
would dare question his sincerity or his honesty?
  It was interesting to me, as you look back historically at how we 
have previously confirmed Democrat nominees for the Cabinet, 
overwhelming votes, without filibusters, and without delay, here is a 
quote about the nomination process worth repeating:

       We must always take our advice and consent responsibilities 
     seriously because they are among the most sacred. But, I 
     think most senators will agree that the standard we apply in 
     the case of executive branch appointments is not as stringent 
     as that for judicial nominees. The president should get to 
     pick his own team. Unless the nominee is incompetent or some 
     other major ethical or investigative problem arises in the 
     course of our carrying out our duties, then the president 
     gets the benefit of the doubt.

  That statement was made by Senator Leahy. He laid down the right 
standard. He is right. The President should be able to pick his own 
team. I hope my colleagues recognize that and will support the 
confirmation of our distinguished colleague from Missouri, Senator John 
Ashcroft.
  Mr. President, I thank you and yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. MURRAY. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Mr. President, I rise this evening to speak about the 
nomination of Senator John Ashcroft to serve as Attorney General. I 
want to be very clear. I did not seek this debate. I think it is 
unfortunate that this new Senate has to address such a difficult and 
contentious nomination that opens up old history and old wounds and old 
debates, rather than moving forward on issues that unite our country.
  I do not relish the role of opposing a new President's nominee for 
Attorney General. In fact, quite to the contrary. I believe a new 
President should be able to fill his Cabinet with the people he wants. 
Unfortunately, this is not something over which I have control. 
President Bush picked Senator Ashcroft and in doing so he brought this 
conflict upon himself and he must accept responsibility for that 
decision.
  Senator Ashcroft, too, must accept responsibility for his actions, 
especially those that have raised doubts about his ability to serve as 
Attorney General. I did not seek this conflict, but under the U.S. 
Constitution the Senate is called upon to provide advice and consent on 
Cabinet appointments, and I take that responsibility seriously.
  I do want to point out that I and all of my colleagues took great 
care to treat John Ashcroft carefully. In fact, throughout the debate 
over Senator John Ashcroft's nomination I have said that I would only 
make a decision after Senator Ashcroft had a full and fair hearing. 
That is what fairness requires.
  Senator Ashcroft had an opportunity to respond to questions before 
the Senate Judiciary Committee. I reviewed the testimony thoroughly and 
then I reached my decision. I want to share with my colleagues and the 
people I represent how I reached the conclusion that Senator Ashcroft 
should not serve as Attorney General.
  First, I considered the unique responsibility and trust placed in an 
Attorney General. Far more than any other Cabinet officer, the Attorney 
General of the United States has the power to affect the rights and the 
lives of all Americans. For that reason, this nominee must be chosen 
with great care.
  I can tell you I spent many days and several long nights thinking 
about qualities I would want to see in an Attorney General. In addition 
to being honest and independent, that person must actively enforce the 
laws and ensure the public's confidence in our legal system. The 
Attorney General must also display the highest standards of fairness, 
trust, and respect for the law. I developed those standards and then I 
looked at Senator Ashcroft's statements in the Record.
  As I have looked at the facts, it seems clear that, in his hearing, 
he obscured his record and did not prove to me that he is qualified to 
be Attorney General.
  As I said, I have taken great care to ensure that John Ashcroft had a 
fair opportunity to respond to the questions raised about his 
nomination. Unfortunately, Senator Ashcroft did not extend that same 
standard of fairness to Judge Ronnie White, and fairness is one of the 
critical qualities needed in an Attorney General.
  In the case of Ronnie White, Senator Ashcroft leveled serious charges 
against a respected jurist. Through Senator Ashcroft's timing and 
maneuvering, Judge White was never asked about those charges. Judge 
White was never even given an opportunity to defend himself, and that 
is fundamentally unfair.

  In any Senator, such behavior is inappropriate and regrettable. In an 
Attorney General, such behavior can be dangerous.
  Unfortunately, Ronnie White was not the only nominee that Senator 
Ashcroft, in his long tenure, has treated questionably. Senator 
Ashcroft's treatment of Ambassador James Hormel is also very troubling 
to me. At the time Senator Ashcroft said he opposed Mr. Hormel's 
selection to be Ambassador to Luxembourg because he actively promoted 
the gay lifestyle. More recently, however, we heard a different answer 
from John Ashcroft. He told the Senate Judiciary Committee that he 
voted against Mr. Hormel because he knew him personally. But Mr. Hormel 
has said that he never met Senator Ashcroft, and, further, that Senator 
Ashcroft had refused to even meet with him. In fact, John Ashcroft 
would not even attend the nomination hearing in the Foreign Relations 
Committee of which he was a member. His treatment of Mr. Hormel, and 
his varying and contradicted claims about the reason for his decision, 
give me great pause.
  It would be easy to give Senator Ashcroft the benefit of the doubt if 
this were an isolated incident, but in addition to Ronnie White and 
James Hormel, Senator Ashcroft also treated Bill Lann Lee unfairly. As 
my colleagues will recall, Bill Lann Lee was nominated to be head of 
the Justice Department Civil Rights Division. In opposing Lee, Ashcroft 
said Lee had an intensity that belongs to advocacy, not the balance 
that belongs to administration.
  It seems to me that Senator Ashcroft would not even pass his own 
test. Senator Ashcroft's treatment of Judge White, Ambassador James 
Hormel, Bill Lann Lee, and others does not show the level of fairness 
that an Attorney General must display. This is not how the U.S. 
attorney general should treat people.
  Let me turn to the second standard I considered--trust. The Attorney 
General must be someone the American people can trust to vigorously 
protect their rights.
  Citizens of this country should feel comfortable that the highest law 
enforcement officer of the land will ensure their basic liberties. 
Unfortunately, for far too many Americans, Senator Ashcroft's record 
creates fear, not trust. His appointment sends the wrong message to 
Americans who already face discrimination and unfair treatment in their 
daily lives.
  Next I want to turn to integrity because Senator Ashcroft is often 
said to be a man of integrity, and I do not challenge his integrity, 
but I do ask this: If he is true to his beliefs, how can he vigorously 
enforce the laws he has vehemently opposed and sought to overturn 
throughout his public service?
  His past history shows he does not believe in and has fought against 
the laws that strengthen gun safety, protect a woman's right to choose, 
and civil rights. I can only assume that a man who prides himself on 
his integrity would continue to advocate those views.
  John Ashcroft is a man of uncommonly strong beliefs. Based on what I 
know of Senator Ashcroft, he has not convinced me that he can set aside 
those beliefs to execute fully the laws with which he disagrees.
  I also considered Senator Ashcroft's willingness to enforce the law, 
especially those with which he disagreed. Because we are a nation of 
laws, the Attorney General must actively enforce our laws. This is an 
area where Senator Ashcroft has an extensive record.
  Unfortunately, as Missouri's attorney general, John Ashcroft was 
selective in his application of the law. Often

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he acted outside the scope of his office. For example, Senator Ashcroft 
refused several court orders to implement desegregation of public 
schools in St. Louis. In fact, one judge said of Senator Ashcroft's 
efforts representing Missouri:

       The State has, as a matter of deliberate policy, decided to 
     defy the authority of this court.

  The St. Louis desegregation case is the most troubling example of 
Senator Ashcroft's refusal to enforce the laws with which he disagreed.
  Senator Ashcroft has also failed to convince me that he would 
actively enforce the laws that protect a woman's right to choose.
  Finally, the Attorney General must be someone to whom all Americans 
can look as their advocate. President Bush has said he wants to unite 
our country, not divide it. This nomination, more than any I have ever 
seen, has divided our country and left many Americans wondering if 
their rights will be protected in the Bush administration.
  I have received literally thousands of calls from a wide variety of 
citizens in my State asking me to oppose Senator Ashcroft's nomination, 
and they are not just saying oppose Ashcroft and hanging up. These are 
people who are telling me they have been following the debate and are 
really concerned that their rights will not be protected if John 
Ashcroft becomes Attorney General.
  I want to say one more thing about the high level of public comment 
we have heard in recent weeks. Some claim that interest groups are to 
blame for John Ashcroft's problems. I disagree. No interest group made 
John Ashcroft mistreat Ronnie White or James Hormel or Bill Lann Lee. 
John Ashcroft did that himself, and he has to accept responsibility for 
his actions.
  Those are the factors I considered: fairness, trust, ability to 
enforce the law, and ability to represent all Americans and to 
safeguard their rights.
  I asked myself: Is John Ashcroft someone whom all Americans can trust 
to treat them fairly and to protect their rights? I have concluded he 
is not.
  I will vote against John Ashcroft because he has not shown the 
fairness, the trust, or the respect of the law required in America's 
highest law enforcement officer.
  Given the likelihood of his confirmation, I hope that John Ashcroft's 
actions in office will prove me wrong. Either way, I will hold 
President Bush accountable for his decision.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER (Mr. Voinovich). The Senator from Alabama.
  Mr. SESSIONS. Mr. President, President Bush's Cabinet nominees are 
the finest group of Cabinet nominees I believe we have seen in the last 
100 years. They are extraordinary men and women of accomplishment and 
achievement. They are grownups. They are people who have a proven 
record of achievement, and I am proud of them.
  John Ashcroft is a quality nominee. He is 59 years old. He served 
twice as attorney general of Missouri, twice as Governor, and he was 
elected to the Senate. He was five times elected to public office in 
the State of Missouri, a heartland State, a State that is always a 
bellwether for who will win the Presidency.
  This is not a man who is an extremist. This is one of the finest, 
most decent men I have ever known. This is a man who tells the truth to 
a degree unusual in this Capital, and to have John Ashcroft accused of 
not telling the truth by the very same people who on this floor 
defended the former President of the United States, Bill Clinton, for 
bald-faced misrepresentations and lies he has finally admitted to 
making is stunning.
  John Ashcroft is not that kind of person. John Ashcroft is a better 
person than that. He tells the truth. He does what is right. I have 
seen that aspect of his character exhibited time and time again on this 
floor. He is one of the most principled and decent Senators I have ever 
known.
  As I told some friends of mine back home, I have not met a finer 
person in my church, in my State, or in Washington than John Ashcroft.
  It is really disturbing to me to have Members of this body be 
encouraged and pushed by a group of hard-left activists to make 
statements that are demonstrably untrue. This is especially true when 
the people parroting these irresponsible statements were not present to 
observe the hearings that we had on this nomination. In fact, some who 
have announced their intentions to vote against John Ashcroft did not 
even wait for the Judiciary Committee hearings to begin before making 
their rush to judgment.
  I am a member of the Judiciary Committee, and I was there when we had 
the hearings concerning this nomination. The committee gave everybody 
their say. We had representatives of Planned Parenthood, who oppose 
virtually any kind of control on abortion. We had representatives of 
the National Abortion Rights Action League as well. We also had a 
representative from Handgun Control who admitted to me that his 
organization never criticized the Clinton administration when they 
allowed prosecutions of gun crimes to drop 46 percent over the past 
eight years.
  He never criticized the Clinton administration, not even one single 
time. Yet he has no problem launching attacks on Republicans who would 
not agree to support more and more regulation of innocent law-abiding 
citizens who want to possess guns. That is what the gun debate had 
become. Whatever bill you agree to pass, these groups want to put 
something more extreme out there so that it implicates the second 
amendment to a degree that is arguably unconstitutional, thereby giving 
them ammunition with which to attack the person who will not vote for 
it.
  They never criticized the Clinton administration for not prosecuting 
gun cases even though Attorney General Reno allowed prosecutions to 
plummet 46 percent over the past eight years. Why was this group 
silent? If their agenda is truly one of concern about the criminal 
misuse of firearms, why were they willing to turn a blind eye to the 
Democratic administrations lax enforcement efforts?
  The truth is that many of these activist groups are fundamentally 
arms of the Democratic National Committee, and they are leaders of the 
hard left in America. They think they can come in and dictate to the 
President of the United States that he cannot appoint a decent, 
exceptionally skilled, and fine individual as Attorney General of the 
United States.
  John Ashcroft went to Yale. He graduated from the University of 
Chicago Law School.
  He is a scholar. I have heard him make speeches that are 
extraordinarily fine in their analytical thought. He follows his 
principles to a degree that I think is unsurpassed here. So it is 
really surprising to me to hear these complaints raised about him.
  Let's talk about one matter his opponents keep raising. I would like 
to stand here all night debunking the myths that the far left has 
attempted to construct, but for the moment I am just going to talk 
about a couple of them tonight. The Ronnie White matter is one of the 
first myths that the hard left is perpetuating.
  Let's look at the facts. John Ashcroft voted for every single African 
American judicial nominee who came up for a vote on this floor except 
Ronnie White--26 out of 27. Ronnie White was opposed not only from his 
home State of Missouri by John Ashcroft, he was also opposed by Kit 
Bond, the senior Senator from Missouri. Both of the home State Senators 
opposed this nominee. Was this some sort of an extremist position? I 
mean, confirmation is a fact and we need to deal with the cases that 
come before us.
  John made a speech on this floor indicating his opposition to that 
nomination. He voted against it in committee. I think it came up in 
committee on two different occasions and on both occasions he voted 
against it and expressed his opposition to the nominee. But, to his 
credit, he did let the nominee come to the floor for a final vote. He 
agreed to allow that to happen.
  So now he has been accused of intentionally mistreating Ronnie White 
because he allowed the full Senate to consider the nomination, rather 
than attempting to quietly defeat the nomination in committee. Let me 
tell you, if you hold a nominee in committee--and I suppose Senator 
Bond and Senator Ashcroft could have kept that nominee in committee--
the left would

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have been attacking him now for not letting the White nomination come 
to a vote. I am telling you, that is what he would be accused of. I 
have been here on the floor, and I have seen that.
  John made a speech delineating some of the reasons--which I am going 
to mention in a moment--that he opposed him. And 54 of the 100 Senators 
in this body voted no.
  How is that an extreme matter? Why would they vote no? There were 
several reasons. Out of the 114 sheriffs in Missouri, 77 of them wrote 
in opposition to the White nomination. Incidentally, many of these 
sheriffs are Democrats. Additionally, the Mercer County District 
Attorney wrote a letter to John Ashcroft stating:

       Judge White's record is unmistakably anti-law enforcement, 
     and we believe his nomination should be defeated. His rulings 
     and dissenting opinions on capital cases and on fourth 
     amendment issues should be disqualifying factors when 
     considering his nomination.

  You have heard another far left myth if you listened to the debate to 
date in that some opponents of John Ashcroft's nomination claim that 
John Ashcroft's members of the Supreme Court voted to dissent on 
criminal cases more frequently than Judge White. That is a very 
inaccurate statement. Let me tell you why. It is because apples are 
being compared to oranges. While the Ashcroft judge Mr. White replaced 
did vote against the imposition of the death penalty in a number of 
cases that Ashcroft nominee was voting on a series of cases that were 
not the same cases Judge White was ruling on when he was on the Supreme 
Court. He was ruling on a different group, with different facts and 
different legal questions involved. It is apples and oranges.

  In order to place Judge White's death penalty dissents in proper 
perspective, it is necessary to compare Judge White's rulings to all 
the members of the court during the time Judge White sat on the court. 
When apples are compared to apples, it is clear that Judge White 
dissented four times more frequently than any other judge on that 
court.
  That is a record that should be examined. That is a cause of concern. 
Some of Judge White's opinions that I have read cause me great concern 
because I was a Federal prosecutor for 15 years, and an attorney 
general for 2. I know some of the issues that come up with judges. I 
have spent by far the largest portion of my career in Federal court 
before Federal judges.
  You have to understand something about Federal judges. They are 
appointed for life. They have absolute power in many instances in a 
trial, power that is unreviewable by any court. The most dramatic of 
these powers is the ability to grant a judgment of acquittal at the end 
of the prosecution's case.
  For example, if you present a case against a defendant for murder, or 
some other fraud or crime, and the prosecution stands up at the end of 
its case and says, ``The prosecution rests,'' immediately now, these 
days, no matter what the evidence, the defense lawyer will stand up and 
make a motion for a judgment of acquittal.
  Usually they are denied. Usually these motions are just hot air. They 
are just saying stuff for the record, frankly. Most prosecutors bring 
good, strong cases. So defense attorneys as a matter of routine move 
for a judgment of acquittal. If the judge grants that judgment of 
acquittal, it is the same as if a jury had acquitted that defendant. 
Jeopardy attaches. Under the Constitution of the United States, you 
cannot twice be held in jeopardy under the law. That defendant is 
acquitted, and he can never be tried again, no matter how guilty he or 
she may have been of the offenses charged.
  So a Federal judge with a lifetime appointment in many ways is much 
more problematic for the system than one member of a seven-member 
supreme court. John Ashcroft, as a former State attorney general, 
understood that.
  Federal judges also routinely overrule the entire criminal justice 
system of a State. You may say that is not routine. I suggest to you it 
is very frequent, and they are often asked to do so.
  For example, if a case is appealed all the way to the Missouri 
Supreme Court, and the Missouri Supreme Court rules, then the defendant 
can file post-conviction relief in Federal court and ask the Federal 
court to review the State case to see if the Federal Constitution has 
been implicated and violated in some way that the defendant was tried.
  So if you have a Federal judge on the bench who wants to let 
criminals go or is undisciplined in the responsibilities of his office 
in applying the law, or has demonstrated a bias against law enforcement 
officers, you can have a real problem.
  In Alabama, people knew who the judges were who were always letting 
criminals go. It was not a secret. I am telling you, if you have a 
nominee come up from my State for a lifetime Federal judgeship, I am 
going to ensure--because I was an attorney general also--that they are 
going to give law enforcement a fair day in court, too. They are going 
give the prosecutor a fair chance to put on his or her case.
  That is the way John Ashcroft felt about it. So imagine his concern 
when he realized that he had prosecutors in his State opposing the 
White nomination. He had a majority of the sheriffs in his state oppose 
this judge. He even received written opposition from national law 
enforcement organizations, such as the National Sheriffs Association, 
that wrote in and opposed this judicial nomination.

  So, keeping these facts in mind, John looked at the record, and 
thoroughly examined a number of the opinions Judge White had issued 
which concerned these groups. And what he discovered, as he expressed 
in his floor speech at the time of the vote, is that Judge White had 
made a series of ``procriminal rulings''. The far left analyzes this as 
some sort of unwarranted attack upon Judge White's character, but it 
was not. It was simply a description of the opinions involved.
  This is clear if one bothers to read the statement John made here on 
this floor. He was referring to his opinions. You can call them liberal 
opinions; you can call them bleeding heart opinions; you can call them 
anti-law-enforcement opinions. You can call them whatever you want to 
characterize them. But it is not disqualifying, in my opinion, to be 
Attorney General if you refer to a justice's opinions as procriminal 
when they continually rule in favor of criminal defendants.
  One of the cases that caused the greatest disturbance was the Johnson 
case. In this case the defendant, Mr. Johnson, was involved in a 
domestic disturbance. The call went out to the sheriff's department. As 
so often happens, sheriff's deputies go out to those houses in response 
to a domestic call. These missions are considered to be perhaps the 
most risky and dangerous thing they do. In this case a deputy knocked 
on the door, and Johnson appears with a gun. As the deputy tried to get 
away, Johnson shot him in the back. The deputy fell to the ground, and 
Johnson walks over and puts a bullet through his forehead, execution 
style.
  That is not enough to satisfy Johnson's blood lust, however. What 
does he do next? After murdering, in cold blood, a deputy doing his 
duty, Johnson goes out and tries to track down the sheriff. The sheriff 
isn't home. But the sheriff's wife is in the home, having a social 
gathering there--and with her own children about--and he shoots the 
wife five times through the window, killing her.
  Then Johnson continues his rampage by tracking down two other deputy 
sheriffs and killing them.
  This is one of the most horrible crimes I have seen.
  At his trial, Johnson's defense lawyers suggest that because he 
served in Vietnam, the murders were the result of posttraumatic stress 
syndrome. The trial had all kinds of expert testimony and things of 
that nature to deal with this issue.
  The defendant was caught, surrounded in a building, and surrendered. 
He made a detailed confession. I would say, as a prosecutor, it was a 
powerful demonstration of guilt beyond virtually any doubt that this 
defendant committed this crime.
  The defense tried to say this guy thought he was in Vietnam. These 
were good defense lawyers, they had been award-winning criminal defense 
lawyers. All of them were highly skilled. So, on behalf of their client 
they claimed he had posttraumatic stress

[[Page S699]]

syndrome. In light of the overwhelming evidence what else could they 
do? The murders were plain and simple. During the course of the trial, 
these lawyers made some representations that were not factually 
accurate, but which were not sufficiently egregious for the majority of 
the Missouri Supreme Court to find any error in their actions.
  But Judge White felt differently. He concluded that the defense 
attorneys were incompetent, and that Johnson didn't get a fair trial. 
He also suggested that he wanted to apply an insanity theory that was 
different from established Missouri law. In fact, what White said was 
that if Johnson didn't meet the legal definition of insanity, he had 
something ``akin to madness.''
  Two of the most significant criminal justice issues in America are 
the question of insanity and incompetent counsel. That is true because 
so many cases in our criminal justice system are like this case--the 
guilt is clear and overwhelming. So when they go and appoint a paid 
State attorney, a court-appointed attorney--by the way, in this case 
these attorneys were retained counsel, hired by this defendant or his 
family; he hired them; he wanted good attorneys--normally, the appeal 
goes forward dutifully after conviction because that is what a lawyer 
is expected to do. The State will pay for it. So they make an appeal 
and raise these issues on appeal.
  When the guilt is overwhelming and the defendant did something 
violent such as this, what are the two issues you can raise? 
Ineffective assistance of counsel and insanity. And in this one 
opinion, Judge White showed clearly that he lacked judicial discipline. 
He lacked a comprehensive and clear understanding of the importance of 
a judge maintaining clear rules on insanity and incompetence of 
counsel. His dissent, if applied, would have completely destabilized 
the law in both of those areas for the State of Missouri.
  Another big factor in cases is, even if the lawyer made a mistake and 
could in one sense be held to be incompetent, the judge must ask 
himself, on appeal, would that have had any likelihood of changing the 
outcome of the case. Certainly it would not have in this case, as the 
majority opinion clearly held.
  There were a series of other cases such as this one that caused the 
former attorney general of the State of Missouri to wrestle with his 
conscience about whether or not he could approve this judge. He 
concluded he could not, that he ought to oppose him. By giving him a 
lifetime-appointed Federal judicial position, the danger would be 
great, and he should not be promoted with this kind of anti-law-
enforcement record. So he made a statement to that effect on the floor, 
and 54 Senators agreed with him.
  That is not disqualifying. That shows to me a man of courage, because 
he knew it would be a difficult matter, that many would disagree with 
him and he would probably be attacked. It showed the kind of courage 
that prosecutors have to have. It is not always a pleasant task to take 
on these cases. You have to do your duty, and John did in this case.

  He did the right thing. Judge White's opinions are, in my opinion, 
outside the mainstream, and he should not have been confirmed--54 
Senators agreed with this conclusion.
  The far left has also made allegations about the Bill Lann Lee 
nomination, and they have been attacking Senator Ashcroft for his small 
role--they don't say small role--in the Bill Lann Lee matter.
  Bill Lann Lee was nominated by the President for chief of the Civil 
Rights Division of the Department of Justice. He had been a career 
civil rights attorney, a good one, who had filed lawsuits all over the 
country. That had been his goal throughout life. He came at the office 
from that perspective.
  That is not disqualifying. As a matter of fact, it could be a good 
quality. In fact, I consider it a good quality that he had litigated 
and had been active in the areas of law which he would be called upon 
to enforce.
  Many of his cases, however, had obtained rulings or forced agencies 
he was suing into consent decrees that went beyond what I believe is 
justified under current Supreme Court law. In fact, in recent years the 
U.S. Supreme Court rendered an opinion called the Adarand opinion. It 
was a very important case. It clarified in many ways the issue 
concerning quotas and affirmative action programs in terms of what is 
legitimate and what is not. Basically, the Supreme Court held that the 
Government can't have quotas. It cannot say that you get this contract 
for highway work because of the color of your skin and you don't get it 
because of the color of your skin. The Government can have affirmative 
action programs; it can have action to encourage small businesses. It 
can do a lot of different things to encourage minorities to have the 
opportunity to compete. But it cannot, as a matter of American law and 
fundamental justice, say to one group or another: You can't get this 
contract because of the color of your skin.
  We had a hearing on that in the Judiciary Committee. We had Mrs. 
Adarand, the wife of Mr. Adarand, testify how their business had been 
damaged by a quota system in Federal highway funding. She described 
that in some detail.
  We had a lady, a Chinese American from San Francisco, who testified 
about her daughter who had studied very hard to get into a special 
advanced quality school in San Francisco for math and science, I 
believe. She met the test scores, and they were so excited. Then she 
got a letter saying they were not accepted.
  This woman went down to the school's office and said: My daughter 
made this test score. I thought she would be accepted. Why wasn't she?
  She said the man to whom she was speaking looked at her and said: She 
was rejected because there are too many Chinese enrolled already.
  Even though her child qualified in every way, she was rejected 
because of her ethnic, racial background.
  That is the kind of thing that is happening in America today. It is 
not a healthy thing. Adarand made clear that those kinds of things are 
not justified. Adarand holds that there is a presumption in the law 
that programs based on race, that favor one group or another based on 
their race, are unconstitutional and that they fail and cannot be 
enforced unless they pass a strict scrutiny test, which is a very high 
test.
  Isn't that true? Isn't that what America is about? Equal opportunity 
for all, regardless of their race and background, color or creed or 
religion? Yes, that is what America is about. So this is a seminal 
case.

  So Mr. Lee came up. It became a really important question as to 
whether or not he would follow this because his background, 
particularly in a lot of cases before Adarand was ruled on, was 
contrary to that. He said he thought Adarand was fine, he would follow 
it. But we questioned him in some detail about how he interpreted 
Adarand, and that was a matter that did not go well for Mr. Lee, in my 
opinion. It troubled the entire committee.
  The precise questions dealt with the enforcement of Adarand. When 
asked to state the holding of Adarand--we asked him what he thought the 
holding of Adarand was--he testified that racial preference programs 
are permissible ``if conducted in a limited and measured manner.'' 
Racial preferences are permissible in America, he said, if conducted in 
a limited and measured manner.
  But Adarand doesn't say that. That was the problem. Adarand says they 
are presumptively unconstitutional unless they pass strict scrutiny, 
some specific reason--normally, a clear bias that is being fixed by a 
post-adjudication order. But even when this was pointed out to Mr. Lee, 
he stayed with his expressed position. That was very troubling.
  I liked Mr. Lee. I told him I liked him. But I was troubled that he 
was going to be chief of the Civil Rights Division in the Department of 
Justice, and he wasn't prepared to enforce plain rule, as I saw it, in 
the Adarand case.
  Chairman Hatch, who is a constitutional scholar, was also troubled. 
He came and made a speech on this floor which had the quality of a Law 
Review article dissecting this important seminal case and Mr. Lee's 
responses to it. He voted no, the chairman of the Judiciary Committee, 
as did eight other members of the Judiciary Committee, of which I was a 
member. He failed in committee 9-9.
  They blamed John Ashcroft as being a man who personally blocked this 
person from that high office. I don't think

[[Page S700]]

that is right. I think that is wrong. That is deliberate distortion of 
what happened. Members of the committee who were there ought to have 
known better than to criticize John Ashcroft with regards to the Bill 
Lann Lee nomination. They should not repeat a false allegation, and 
they should correct their colleagues who may not know otherwise.
  It was an honest, professional discussion of the law. It was an 
honest discussion of what ought to be done for Bill Lann Lee, and we 
concluded that his understanding of Adarand was different than what we 
understood Adarand to be and that he could not fulfill the very heart 
of his office's responsibility if he didn't understand the seminal case 
on preferences and quotas in America law, the Adarand case.
  There are hundreds of Federal programs based on race in America. When 
asked if any of them would fall because of Adarand, Lee suggested maybe 
one. I think that is unlikely to be so as the law continues to develop 
in this area. I think we had a real problem there. That is why that 
matter was decided the way it was.
  It certainly is unfair to say that this brilliant lawyer, this 
principled Senator, this public servant of over 25 years was somehow 
anti-Chinese-Americans because he voted against Bill Lann Lee. He voted 
for 26 out of 27 African American judges that the Clinton 
administration sent forward, objecting only to the one in his State 
where his sheriffs and police chiefs opposed him. Does that mean that 
he is anti-black? They are wrong. This is going too far. What is 
happening here is not right.
  I was talking to a group, and I acknowledged that John was different 
from the rest of us. He doesn't drink, dance or smoke because of his 
dedication to his religious beliefs. He has been married to one wife, 
and he has a fine family. His personal life is conducted on the highest 
standard of decency and fairness. In many important ways, John Ashcroft 
is different from the rest of us. In many important ways, John Ashcroft 
is better than the rest of us.
  He has appointed numerous African Americans to the bench in Missouri. 
He signed into law and supported the Martin Luther King birthday law in 
Missouri at a time when some didn't want to do that. His wife, a law 
professor herself, is teaching at the Howard University, a majority 
black college here in D.C. John has a clear record of fairness and 
justice.
  It is wrong to allow a series of groups that are not answerable to 
the American people, that have hard-left agendas, to come in here and 
caricature his decisions as being somehow anti-civil rights because he 
voted against Bill Lann Lee; that he is somehow anti-black because he 
voted against this one judge. To make that kind of caricature of this 
good man and then ask us to vote against him based on that caricature 
is fundamentally wrong.
  If you had heard the testimony and heard him answer and explain how 
he did this and other things in the hearing, you would agree, I 
believe, that he made a wonderful case for what he did. It was 
plausible and reasonable and principled and is not in any way extreme 
or outside the mainstream of American law.
  Another far left myth is that John is against integration because he 
resisted massive Federal Court intervention in the State of Missouri's 
school systems.
  Many of you have probably heard of the Kansas City case where a 
Federal judge imposed a tax and ordered a county commission to impose a 
tax to pay for the court's plan for education. John was the attorney 
general of the State of Missouri, the sovereign State of Missouri, that 
has a constitution that says what State school boards do, what State 
superintendents of education do, and how the system is set up. This 
Federal judge came in and ripped it all apart doing what he thought was 
just.

  I am telling you, if the attorney general wants to defend his State, 
what is the matter with that? Who is in charge? Is he supposed to stand 
idly by and allow the court to do that?
  Senator Danforth, one of the most respected Senators who has served 
in this body, is an Episcopal priest, and was attorney general before 
John. He opposed these court orders. His successor opposed these 
orders. The second successor to John Ashcroft, Jay Nixon--I was 
attorney general, and I knew Jay. Jay opposed those orders exceedingly 
vigorously. But that didn't stop a few of the Members of this body, 
Senators Kennedy and Harkin, from going to Missouri and having a 
fundraiser for Jay Nixon in his race for the Senate.
  Let me repeat that. Senators Kennedy and Harkin held a political 
fundraiser for Jay Nixon after he opposed these court orders 
vigorously, yet somehow it was improper for then Attorney General 
Ashcroft to have opposed them as well.
  This example is illustrative. Like the integration charge, all the 
charges made against John are trumped up. This is not fair. John 
Ashcroft was doing his duty as an attorney general. He favored school 
integration, and he has stated that unequivocally. He believes in 
integration, but he did not agree with the actions taken by the federal 
courts.
  This is what was in one of the court orders that John Ashcroft 
resisted as attorney general of Missouri. It ordered the school system 
to have an 8-lane, 50-meter swimming pool, the biggest in the State, 
bigger than any of the universities' swimming pools; a 300-seat Greek 
amphitheater with a stage framed with white columns; a planetarium; 
greenhouses; a dust-free diesel mechanic shop--I worked in my dad's 
mechanic shop. It wasn't dust free. It didn't hurt me, I don't think--
broadcast cable radio and TV studios; school animal rooms, including an 
indoor petting zoo; private nature trails; overseas trips for students; 
and a model United Nations with language translation.
  The attorney general is supposed to sit by and let a Federal judge 
take over the whole State and issue these kinds of orders? Who is going 
to pay this $1.7 billion? The people of Missouri.
  Who is this judge? How do judges get to do this? They have to be 
careful about this. You can't issue orders to remedy a past 
discrimination. You can't do that, but judges do it regularly. But many 
judges over reach. Many court rulings have over reached.
  As attorney general, John Ashcroft thought it was his duty to defend 
Missouri as his predecessor and as his two successors did. That is not 
an extreme position.
  This is second-guessing somebody and twisting it to make it sound as 
if he opposed integration, which he absolutely did not.
  There are many more matters that have been charged. The responses to 
them are just as compelling. In fact, it is clear to me that the case 
against John Ashcroft totally collapsed in the hearings that we held. 
We gave everybody a chance to testify. John responded to all of them. 
He answered 400 questions propounded to him.
  There is no case here that shows that he wouldn't be the finest kind 
of Attorney General. I am convinced that he will. I am convinced that 
he will be a great Attorney General.
  As one who spent 15 years in the Department of Justice, I dearly love 
and I respect it from my deepest being. It has not been run well in the 
last 8 years. It really has not. Morale is not where it needs to be. 
They have not pursued cases effectively, in my view. For long, long 
periods of time, chief positions such as Criminal Division Chief have 
been left vacant. There has not been a focus and a leadership there, 
and it is desperately needed. More than anybody I know, John Ashcroft 
can fill that role with integrity, with fairness, and with justice to 
restore the concept of equal justice under the law, even if it means 
denying pardons to millionaire fugitives who won't come back to face 
the medicine.
  He would never have approved a pardon for that kind of case. That 
kind of stuff is rotten to the core. The same people in this body who 
have defended, excused, and apologized for lies, for unprincipled 
operation of the Department of Justice, or for former President 
Clinton's subversion of the law, now see fit to attack a man of 
character and decency. This is tragic, and it speaks volumes about 
John's opponents.
  He is going to be confirmed, because my colleagues know the truth 
about John Ashcroft. He will be a good Attorney General. Members of 
this Senate in opposition to this nomination ought to reevaluate their 
conscience about how they have handled this case. I yield the floor.

[[Page S701]]

  The PRESIDING OFFICER. The Senator from Arkansas.

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