[Congressional Record (Bound Edition), Volume 147 (2001), Part 1]
[Senate]
[Pages 1263-1290]
[From the U.S. Government Publishing Office, www.gpo.gov]



     NOMINATION OF JOHN ASHCROFT TO BE ATTORNEY GENERAL--Continued

  Mr. LEAHY. Mr. President, while my friend from Mississippi is still 
here, I ask unanimous consent, it is only a matter of a few minutes, 
that I still have the full half hour that had been reserved under the 
previous order.
  Mr. LOTT. Are you making a request or observation?
  Mr. LEAHY. I make it as a request because the time that the 
distinguished leader took went into that time.
  Mr. LOTT. I certainly would not object to that. I do wish to speak 
briefly myself. I believe I would be in control of the time after that.
  Mr. LEAHY. In fact, I will add to that: In doing so, that it not 
impinge on the time reserved for the distinguished majority leader.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, as we get to the end of this debate, I 
think it is wise if we look at some of the facts of the debate and not 
just the rhetoric.
  We debated this matter virtually nonstop from 10:30 yesterday morning 
until 8:10 yesterday evening. We did it without intervening business. I 
do not think we had as much as 5 minutes expended in quorum calls. For 
our side, this was certainly not a dilatory debate but a substantive 
one. It was not the politics of personal destruction, but the Senate 
exercising its constitutional responsibility to examine one of the most 
important nominations that this President or any President could send 
to the Senate.
  Let's go over the facts. The Senate received the President's 
nomination on Monday afternoon of this week. The Judiciary Committee 
debated this nomination on Tuesday afternoon the following day, and 
voted on it that evening. We began the Senate debate yesterday morning, 
less than 48 hours after receiving the nomination. We are concluding it 
in less than 14 and one half hours of Senate debate. We are voting up 
or down on this nomination this afternoon.
  I mention this because I have heard those who point to the nomination 
of the last Attorney General, Janet Reno, as some sort of model of 
speedy confirmation. She was nominated after an earlier nomination had 
hearings and was withdrawn. Her nomination was not voted upon for a 
month after she was nominated. By comparison, we are voting on John 
Ashcroft when his nomination has been before us for only less than 
three days. That was not a controversial nomination. Republicans, as 
well as Democrats, came to the floor to praise her record, but she was 
still not sworn in until mid-March.
  A better comparison would be to find the last controversial 
nomination; that was that of Attorney General Meese. He was first 
nominated in January 1984 by President Reagan. He was finally 
considered by the Republican-controlled Senate in February 1985, 13 
months after being nominated. Five weeks ensued between his nomination 
and his initial hearing.

[[Page 1264]]

  The nomination underwent 7 days of hearings, involved nearly 50 
witnesses, under a Republican-controlled Senate, when he was Republican 
nominee by a popular Republican President. He was reported by the 
Judiciary Committee, a Republican-controlled Judiciary Committee, by a 
12-6 vote, not the lesser margin of 10-8 by which the Ashcroft 
nomination was reported.
  The Senate, with a Republican majority leader, allowed 2 weeks 
between the committee vote and Senate consideration--2 weeks, not the 
17 hours we had on the Ashcroft nomination. The Senate debated the 
Meese nomination over 4 days, on February 19, 20, 21, and 23--not the 
day and a half devoted to the Ashcroft nomination. Then, the 
Republican-controlled Senate voted 63-31 to confirm Attorney General 
Meese.
  I believe those 31 negative votes were the most ever against an 
Attorney General. Even as the very popular President Reagan was 
preparing to begin his second term, the nomination of his Attorney 
General resulted in 7 days of Senate hearings, 4 days of Senate debate, 
and 31 votes in opposition. I mention this because there was some 
suggestion that maybe some on this side held this up. This nomination 
was handled a lot more rapidly done than at the time of Attorney 
General Meese.
  The Senate is soon going to vote on the nomination of John Ashcroft 
to be Attorney General. I think it is safe to say that all of us in 
this body would like to be able to vote in favor of the next Attorney 
General. Those of us who are going to vote no on this nomination take 
no pleasure in doing so. Frankly, I have heard many say--and I feel 
this myself--we wish the President had sent a different nomination for 
this critical job. We wish, if he wished to have our colleague, Senator 
Ashcroft in the Cabinet, that he had nominated him for a different 
position. We wish the President had adhered to the standard he set 
forth in his own inaugural address and that he had sent us a nominee 
who would unite the country and have the utmost credibility with the 
disaffected, dispossessed, and disenfranchised.
  We knew the nomination of Senator Ashcroft had become a ``done deal'' 
weeks ago. The Republican leadership reported that all 50 Republican 
Senators would be voting in favor of this nomination, and, of course, 
with the Vice President they would be able to win.
  This decision was made before any hearing, before the nominee 
answered any question, written or oral, before any background check or 
review of his record was ever begun, let alone completed. That is why 
some members of the Judiciary Committee on the other side went so far 
as to argue that the committee need not hear testimony from the public 
at all, and need not review the nominees's required financial 
disclosures, papers required of every nominee.
  Most Democratic Senators, I am happy to say, declined to prejudge the 
matter. As chairman during the 17 days of the Judiciary Committee 
hearing, I expedited a balanced hearing to review the nominee's record 
and to hear people from Missouri and others, pro and con, on this 
important nomination. We had virtually an equal number for Senator 
Ashcroft as against him--I think actually one more for. But I believe 
that all Senators can be proud that our hearings focused on issues, not 
on the nominee's personal life. We can also be proud of the tone set 
during this debate on the Senate floor.
  But there is one big exception. I take strong exception--in fact, the 
strongest terms I can think of in my 26 years in the Senate--to the 
characterization we have heard about the issue of religion and this 
nomination. The Senate was told that opponents of this nomination have 
implied that Christians have no place in public life.
  If that charge was not on its face so absolutely preposterous in this 
body, it would have invited several hours of discussion to set the 
record straight. It is such an untrue and inflammatory assertion.
  Needless to say, if that was the debate, it would be fair to 
speculate that many, probably most of President Bush's nominees are 
Christians and confirmed by this body. All of his nominees are 
confirmed. I know of none planned, or who have been announced by the 
distinguished leader as ready for votes, who are not going to be 
confirmed. If their religion has been mentioned at all, it has been 
mentioned to their credit.
  Is it really necessary to point out that men and women of Christian 
faiths are plentiful in both parties in these very Halls of Congress? 
More to the point, there are good people, who are Christians, on both 
sides of the Ashcroft nomination, just as there are good people, who 
are not Christians, on both sides of the Ashcroft nomination. In fact, 
the reason religion has come up during these confirmation proceedings 
is not because of John Ashcroft's religious beliefs, but because of 
concern about the level of tolerance he may show towards those with 
different religious beliefs. That is why his visit to and acceptance of 
an honorary degree from, and comments made during the hearings about 
Bob Jones University, have been a legitimate concern to many.
  The relevance of Senator Ashcroft's association with Bob Jones 
University is not about his own religious beliefs. It is about what it 
says about Senator Ashcroft's sensitivity and tolerance towards those 
whom that institution regards in such negative ways, and treats so 
differently. The policies of that institution have been to bar African 
Americans, to bar interracial dating, and to derogate Mormons and 
Catholics as belonging to cults.
  That John Ashcroft does not seem to fully understand the concern that 
this causes to many Americans is itself troubling to so many. We have 
heard from some the term they have seemed to coin: ``religious 
profiling.'' I will say it once again as clearly as I can. No Senator 
on either side of the aisle during these proceedings has sought to 
apply any religious test to John Ashcroft. No Senator has sought to tar 
the nominee as a racist. Senator Ashcroft's religious beliefs have not 
been a source of inquiry or concern for any member of the Judiciary 
Committee.
  Notwithstanding, ironically enough, what Bob Jones University has 
said about Catholics and Mormons--with the two leaders of this 
committee being one a Catholic and the other a Mormon--both Senator 
Hatch and I have said we have never once heard Senator Ashcroft take 
the position that Bob Jones University has towards us or anybody of our 
religions.
  This confirmation debate has not been about religious profiling. If 
anything, this is a nomination struggle about issue profiling, and 
those issues include the nominee's record on civil rights and women's 
rights, the rights of gay Americans, and voter registration.
  Those supporting this nomination argue that he should be confirmed 
because his religious devotion represents a special, unimpeachable 
level of integrity, and that his religion makes him more likely to 
abide by his oath of office. My view is that religion is neither a 
qualification nor disqualification for public office. I hold deep 
religious beliefs. But as I told someone as I left church this Sunday, 
this past Sunday: I would not expect anybody to vote either for or 
against me because of my religious beliefs.
  I would expect them to vote for or against me because of my political 
beliefs.
  Indeed, article VI of the Constitution prohibits any religious test 
as a qualification for public office. I hope Senator Ashcroft's 
supporters are not urging any form of such unconstitutional test.
  The issue is his public record, not his religious faith. I and 
several others have said how much we admire his commitment to his 
family and his religion. I consider those two of the most admirable 
qualities in our former colleague. The issue, though, is how he has 
fulfilled his public duties.
  Senator Byrd posed the question yesterday whether any man's past can 
withstand scrutiny. Confirmation hearings should not be held to dissect 
a nominee's personal life--and this one did not--but they are to 
examine his past record and actions, to hear from the nominee about how 
he views his

[[Page 1265]]

prior positions and actions within the perspective and wisdom that time 
should bring.
  What I observed of this nominee at his hearings can be summed up in 
two words: No regrets.
  He had no regrets about the aggressive manner in which he litigated 
in opposition to a voluntary desegregation plan in St. Louis, or about 
the missed opportunity to resolve that divisive matter, about his use 
or his involvement for political gain, or about the misleading 
testimony he initially gave the committee about whether the State of 
Missouri was a party to the litigation and had been found liable.
  He had no regrets about vetoing two bills designed to ensure equal 
voting rights for African American voters in St. Louis.
  He had no regrets about appearing at Bob Jones University, and he 
even testified that he might return there after being confirmed as 
Attorney General of the United States.
  He certainly passed up the opportunity, as has been suggested, now 
that he knows so much about Bob Jones University, to take the honorary 
degree, put it in an envelope, and send it back. He had no regrets 
about granting an interview to the Southern Partisan and praising this 
neo-Confederate magazine and appearing to embrace its point of view.
  One of the things that bothered me greatly is that he had no regrets 
about his treatment of Judge Ronnie White, Ambassador James Hormel, 
Bill Lann Lee, Judge Margaret Morrow, or any of the other Presidential 
nominees he opposed.
  Each of us has a duty to determine how we exercise our constitutional 
duty of advise and consent. As I said at the outset of this debate, 
strangely enough--or perhaps not so strangely--the Constitution is 
silent on the standard we should use in deciding how to fulfill our 
advise and consent duty.
  I have thought about this over the years, and I have come to the 
conclusion that it is testament to the wisdom of the framers because, 
in the end, those who elect us have the final say in whether they 
approve of how we conducted ourselves and, if they approve, of how we 
exercised our constitutional responsibilities.
  Some have argued that the issues that have arisen during this 
confirmation process have been generated out of thin air by advocacy 
groups or by Senators who oppose this nomination. In fact, these are 
the same issues upon which the voters of Missouri based their verdict 
on election day last November, an election Senator Ashcroft lost.
  John Ashcroft's actions toward Judge Ronnie White and his association 
with Southern Partisan magazine and Bob Jones University were hotly 
debated in Missouri. They were issues in his unsuccessful reelection 
campaign.
  The Kansas City Star noted in November 1999:

       A lot of Missourians are still struggling to understand why 
     Sen. John Ashcroft took out Ronnie White.

  Rallies for Judge White were held in downtown St. Louis. Local groups 
circulated petitions calling for Senator Ashcroft to ``publicly 
retract'' his comments in Southern Partisan. At least one Missouri 
municipality passed a resolution asking Senator Ashcroft to ``cease the 
promotion of Jefferson Davis'' and other Confederate leaders in 
Southern Partisan, and they criticized his actions with respect to 
Judge White.
  Another Missouri city council passed a resolution asking Senator 
Ashcroft to apologize to Missouri residents for his comments in 
Southern Partisan.
  Yesterday, an old friend, a Republican, contacted me to share a quote 
from Reinhold Niebuhr:

       Man's capacity for justice makes democracy possible; but 
     man's inclination to injustice makes democracy necessary.

  In this regard, I note that we heard often about John Ashcroft's past 
election victories in Missouri. What has gone unmentioned is the fact 
that the voters of Missouri registered a negative judgment on the 
politics, policies, and practices of John Ashcroft just last November. 
Not surprisingly, they are the same issues that have arisen during his 
confirmation debate. We heard during our hearings how African American 
voters of Missouri had voted overwhelmingly against him.
  John Ashcroft's stubborn defense of his past record and the fact he 
has no regrets over incidents that concern many of his Missouri 
constituents and that now concern many Americans does not instill 
confidence. On the contrary, to many it is a troubling signal. He lacks 
the sensitivities and balance we need in the Attorney General. We need 
an Attorney General who has the trust and confidence of the American 
people and who is dedicated to protecting the rights of all of us.
  Remember, the Attorney General is not the President's lawyer. He has 
a White House counsel. The White House counsel is not required to come 
to the Senate for confirmation. The Attorney General is there for all 
of us--black, white, rich, poor, Democrat, Republican, no matter who we 
are.
  The American people are entitled to an Attorney General who is more 
than just a friend to many of us in the Senate, as John Ashcroft is a 
friend, and who promises more than just the bare minimum, that he will 
enforce the law. All Americans, whether they are part of the 100 
Members of a Senate club, no matter what they may be, all Americans, 
the 280 million other Americans who do not serve here, are entitled to 
someone who will uphold the Constitution as interpreted by the Supreme 
Court, who will respect the Congress and the courts, who will abide by 
decisions with which he disagrees, and enforce the law for all people 
regardless of politics. They are entitled to someone whose past record 
demonstrates that he or she knows how to exercise good judgment in 
wielding the enormous discretionary power of the Attorney General.
  I said before that we cannot judge John Ashcroft's heart, nor should 
we be able to, but we can examine his record. And running through that 
record are disturbing recurrent themes: Disrespect for Supreme Court 
precedents with which he disagrees; grossly intemperate criticism of 
judges with whom he disagrees--the ``ruffians in robes'' comment--
insensitivity and bad judgment on racial issues; and the use of 
distortions, secret holds, and ambushes to harm the careers of those 
whom he opposes or for political gain.
  I engaged in a colloquy yesterday with the senior Senator from 
Virginia during this confirmation process. Senator Warner is a dear and 
valued friend. We have been friends for decades. He observed that he 
thought the hearings and consideration by the Senate will result in 
John Ashcroft being a stronger, more deeply committed public servant.
  It is my fervent hope that John Ashcroft has come to understand the 
reasons that many of us are troubled by his record and troubled by the 
manner in which he responded to our concerns at the nomination hearing.
  I hope Senator Ashcroft better appreciates the concerns of the 
significant number of Americans who oppose this nomination. Public 
opinion polls show there are as many people opposed to the nomination 
as support it. For those who doubt the promise of American justice--
and, unfortunately, there are those in this country who do, for 
whatever reason--this nomination has not inspired confidence in the man 
nominated to head the U.S. Department of Justice.
  If John Ashcroft is to be confirmed, then he is going to have a lot 
of work to do to prove that the President's choice was a wise one, and 
that he will be the people's lawyer and defender of their rights--all 
the people.
  The country is sharply divided about this nomination, but so is the 
Senate. I wish the President had sent the Senate a nominee who would 
unite us and not divide us, but that did not happen.
  I hope the President knows--after this debate, and after this 
divisive election--the task of bringing the Nation together still lies 
ahead of us. I hope all of us will be able to help in that uniting.
  I think nothing I will ever do in my life will mean as much to me as 
serving in the Senate. I have served with 280 or so Senators, who have 
all been people I have admired and respected. I hope that after this 
nomination, and after

[[Page 1266]]

this battle--however the vote comes out; I expect I know how it will 
come out--then the Senate will work together, on both sides of the 
aisle, with the new President, and with all members of his Cabinet, and 
with the new Attorney General, to start healing these wounds, to not 
just talk about bringing us together, but to actually do it.
  There are deep, deep concerns in the country about this nomination. I 
would suggest that every one of us--Republican and Democrat--have a 
long road ahead of us to bring those sides together, but on that long 
road we also have the responsibility to take that trip.
  I reserve the remainder of my time.
  Mr. BOND addressed the Chair.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I ask unanimous consent to have printed in 
the Record some materials that I believe will be relevant to the 
consideration of this nomination: a letter from the National Sheriffs' 
Association; a letter from the Missouri Sheriffs' Association; a 
written statement of Sheriff Kenny Jones before the Committee on the 
Judiciary; and testimony of U.S. Representative Kenny Hulshof before 
the U.S. Senate Committee on the Judiciary.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               National Sheriffs' Association,

                                  Alexandria, VA, October 4, 1999.
     Hon. John Ashcroft,
     U.S. Senate, Hart Senate Office Building,
     Washington, DC.
       Dear Senator Ashcroft: I am writing to ask you to join the 
     National Sheriffs' Association (NSA) in opposing the 
     nomination of Mr. Ronnie White to the Federal Judiciary. NSA 
     strongly urges the United States Senate to defeat this 
     appointment.
       As you know, Judge White is a controversial judge in 
     Missouri while serving in the Missouri Supreme Court. He 
     issued many opinions that are offensive to law enforcement; 
     one on drug interdiction and one involving the death penalty. 
     Judge White feels that drug interdiction is not a proper 
     function of law enforcement. He wrongly reasons that drug 
     abuse is a private matter that causes no public harm, and 
     drug abusers should not be inconvenienced by interdiction 
     efforts. We strongly disagree. Drug interdiction is a 
     cornerstone in the fight against crime, and this reckless 
     opinion undermines the rule of law.
       Additionally, Judge White wrote an outrageous dissenting 
     opinion in a death penalty case. In 1991 Pam Jones, the wife 
     of Sheriff Kenny Jones of Moniteau, Missouri, was gunned down 
     while hosting a church service at home. The assailant, who 
     was targeting the Sheriff, was tried and convicted of murder 
     in the first degree. He was subsequently sentenced to death 
     for Mrs. Jones' murder. During the appeals process, the case 
     came before the Missouri Supreme Court where six of the seven 
     judges affirmed the conviction and the sentence. Judge White 
     was the court's lone dissenter saying the assailant had a 
     tough childhood and was therefore not accountable for the 
     heinous crime he committed. In our view, this opinion alone 
     disqualifies Judge White from service in the Federal courts. 
     He is irresponsible in his thinking, and his views against 
     law enforcement are dangerous.
       We urge you in the strongest possible terms to actively 
     oppose the nomination of Judge White. He is clearly an 
     opponent of law enforcement and does not deserve an 
     appointment to the Federal Judiciary. His views and opinions 
     are highly insulting to law enforcement, and we look forward 
     to working with you to defeat this nomination.
           Respectfully,
                                         Patrick J. Sullivan, Jr.,
                                                          Sheriff.


                               Missouri Sheriffs' Association,

                           Jefferson City, MO, September 27, 1999.
     Senator Orrin Hatch,
     Chairman, Senate Judiciary Committee, Dirksen Senate Office 
         Building,
     Washington, DC.
       Dear Senator Hatch: Attached please find a copy of the 
     dissenting opinion rendered by Missouri Supreme Court Judge 
     Ronnie White in the case State of Missouri, Respondent, v. 
     James R. Johnson, Appellant.
       Also, please find attached a copy of a petition signed by 
     92 law enforcement officers in Missouri, including 77 
     Missouri sheriffs.
       In December 1991, James Johnson murdered Pam Jones, wife of 
     Moniteau County Sheriff Kenny Jones. He shot Pam by ambush, 
     firing through the window of her home during a church 
     function she was hosting. Johnson also killed Sheriff Charles 
     Smith of Cooper County, Deputy Les Roark of Moniteau County 
     and Deputy Sandra Wilson of Miller County. He was convicted 
     and sentenced to death. When the case was appealed and 
     reached the Missouri Supreme Court, Judge White voted to 
     overturn the death sentence of this man who murdered Mrs. 
     Jones and three good law officers.
       As per attached, the Missouri sheriffs strongly encourage 
     you to consider this dissenting opinion in the nomination of 
     Judge Ronnie White to be a U.S. District Court judge.
           Sincerely,
                                              James L. Vermeersch,
     Executive Director.
                                  ____


 Written Statement of Sheriff Kenny Jones Before the Committee on the 
   Judiciary, Confirmation Hearings of John Ashcroft, U.S. Attorney 
                    General Designate, January 2001

       Senator Leahy, Senator Hatch, Members of the Judiciary 
     Committee, I am honored and a little overwhelmed to be here 
     today to testify on the nomination of John Ashcroft to be 
     Attorney General of the United States.
       Mr. Chairman, my name is Kenny Jones and I am the elected 
     Sheriff of Moniteau County, Missouri, an office I have been 
     privileged to hold for the last sixteen years. For those who 
     may not know, Moniteau County is a very small unusually quiet 
     county in mid-Missouri with a population of approximately 
     13,000. We are a strong tight knit community in the heartland 
     of America. We believe in traditional values and we have a 
     deep faith. We are small town America at its best.
       As you know, much has been said about John Ashcroft and his 
     fitness for this office. I for one support his nomination and 
     urge this Committee to support him as well. Last year, 
     Senator Ashcroft was unjustly labeled for his opposition to 
     the nomination of Judge Ronnie White to federal district 
     court. This one event has wrongly called into question his 
     honor and integrity. Be assured that Senator Ashcroft had no 
     other reason that I know about, to oppose Judge White except 
     that I asked him too. I opposed Judge White's nomination to 
     the federal bench and I asked Senator Ashcroft to join me 
     because of Judge White's opinion on a death penalty case.
       In December 1991, James Johnson changed the lives of many 
     families in our small rural community. He held an elderly 
     woman hostage, killed four people, and seriously wounded 
     another. Johnson murdered in cold blood, the sheriff from a 
     neighboring county, two deputy sheriffs, and my wife, Pam 
     Jones. For this, he was tried by a jury, convicted of four 
     counts of first degree murder, and sentenced to death.
       To understand just how horrid this event is and to 
     comprehend the devastating impact this crime has on my 
     county, you need to understand the facts of that December 
     night. It is easy to talk about dissenting opinions and legal 
     maneuvering in this case and take the human tragedy out of 
     it. But, that is a mistake. This case is entirely about human 
     tragedy and justice. Not a day goes by that I don't think 
     about what James Johnson did to my family and my community. 
     Can you even imagine how it forever changed life in a small 
     Missouri community?
       On the evening of December 9th, Deputy Leslie Roark, was 
     dispatched to the residence of James Johnson on a domestic 
     disturbance call. After arriving on the scene and speaking 
     with Johnson, his wife and his stepdaughter, Deputy Roark 
     apparently ascertained they were all fine. He could not have 
     been more wrong. As Deputy Roark turned to leave, Johnson 
     pulled a gun and shot him in the back. My deputy fell face 
     down, rolled over, and struggled to defend himself. Johnson 
     then shot Les in the forehead at point-blank range. After 
     shooting Leslie Roark, Johnson armed himself with more 
     weapons and drove to my house in rural Moniteau County 
     looking for me. I was not home. I had taken my two sons to 
     their 4-H Club meeting. My wife, Pam, and our two daughters 
     were home, however. They were hosting a Christmas party for a 
     group of local churchwomen and their children. Upon arriving 
     at my house, Johnson opened fire on completely innocent 
     people. He fired several shots through a bay window, hitting 
     my wife who was sitting with my daughter on a bench in front 
     of the window. After the assault on my home, Johnson went to 
     the home of Deputy Russell Borts and shot him, also through a 
     window, as he was talking on the telephone. Russ lives today 
     with several injuries inflicted by Johnson.
       During the attack on my family and Deputy Borts, a call for 
     help went out and many officers from surrounding counties 
     responded to my office. Sheriff Charles Smith, from Cooper 
     County personally responded to the call for help. What he did 
     not know was that Johnson had moved down the block from the 
     Borts residence and was laying-in-wait at my office. As 
     Sheriff Smith was getting in his car, Johnson gunned him down 
     in front of the Moniteau County Sheriff's Office. Just 
     moments later, Johnson shot and killed Officer Sandra Wilson 
     who had driven in from Miller County responding to the call 
     for help. It is important to note that this coward never once 
     confronted his victims face to face. Every single person he 
     shot and killed was shot in the back.




       Before Johnson was apprehended, he held an elderly woman 
     hostage until for some unknown reason, he released her. She 
     escaped and told the authorities where Johnson was

[[Page 1267]]

     hiding. A team of negotiators finally convinced Johnson to 
     surrender and he was taken into custody.
       After dropping off my boys at 4-H, I found out that Les 
     Roark had been shot. I went to be with him while we waited 
     for the Life Flight helicopter. While there, I received the 
     call that would change my life forever. I was told of an 
     emergency at my own house. I raced home. There I saw an 
     ambulance in the driveway and shocked people standing around. 
     My secretary, Helen Gross, told me that Pam had been shot and 
     our daughters had been taken to a neighbor's home. Pam was 
     flown by helicopter to the University of Missouri Hospital. I 
     gathered my four children and went to Pam's side. She died 
     just a short time later.
       James Johnson was tried, convicted and sentenced to death 
     by a jury in February 1993. Every one of his appeals, 
     including his appeal before the Missouri Supreme Court, was 
     denied. In the Missouri Supreme Court, all but one of the 
     judges affirmed the decision of the lower court. The only 
     dissent was from Judge Ronnie White. In his opinion, Judge 
     White urged that Johnson be given a second chance at freedom. 
     I cannot understand his reasoning. I know that the four 
     people Johnson killed were not given a second chance.
       When I learned that Judge White was picked by President 
     Clinton to sit on the federal bench, I was outraged. Because 
     of Judge White's dissenting opinion in the Johnson case, I 
     felt he was unsuitable to be appointed for life to such an 
     important and powerful position. During the Missouri 
     Sheriffs' Association Annual Conference in 1999, I started a 
     petition drive among the sheriffs to oppose the nomination. 
     The petition simply requested that consideration be given to 
     Judge White's dissenting opinion in the Johnson case as a 
     factor in his appointment to the federal bench. Seventy-seven 
     Missouri sheriffs, both Democrats and Republicans, signed the 
     petition and it was available to anyone who asked. I have the 
     petition with me and respectfully ask that it be made a part 
     of the record of this hearing. A copy was forwarded to both 
     Senator Bond and Senator Ashcroft. I also asked that the 
     National Sheriffs' Association support us in opposing Judge 
     White's nomination. They willingly did so and I am grateful 
     that they joined us and wrote a strong letter opposing Judge 
     White's nomination.
       While some would have you believe otherwise, this is the 
     only reason sheriffs opposed the nomination of Judge White. 
     We contacted Senator Ashcroft and urged him to oppose this 
     nomination as well. He agreed with our position, but 
     unfortunately, his view on Judge White's nomination was 
     misrepresented in the press and misrepresented to other 
     members of the Senate. People alleged all sorts of reasons 
     for the eventual defeat of Judge White's nomination. I can 
     only speak for myself and can only testify to what I know to 
     be true. I opposed Judge White's elevation to the federal 
     bench solely because of his opinion in the Johnson case. 
     Johnson murdered my wife in cold blood. He killed three close 
     friends and colleagues and seriously wounded a fourth. 
     Offering him a second chance as Judge White would do, is 
     something that I will never understand. I asked Senator 
     Ashcroft to oppose the nomination based on what I have shared 
     with you here during this hearing. By opposing the nomination 
     of Judge White, Senator Ashcroft did nothing more than 
     properly exercise Constitutional authority based on the 
     information he had available. I hope this information will 
     correct the record and prove that John Ashcroft did not act 
     with an unseemly intent.
       To deny John Ashcroft and reject his nomination to be 
     Attorney General based solely on his opposition to Judge 
     White would be wrong and a terrible loss for the country. I 
     hope my testimony today provides the information you seek to 
     make a truly informed decision on John Ashcroft. In my view, 
     he will make a fine Attorney General and I hope that he will 
     be confirmed. Thank you Mr. Chairman and I stand ready to 
     answer your questions.
                                  ____


 Testimony of U.S. Representative Kenny Hulshof Before the U.S. Senate 
                Committee on Judiciary, January 18, 2001

       I would like to thank Chairman Leahy and Ranking Member 
     Hatch for the opportunity to testify before this committee.
       I fully support President-elect Bush's decision to nominate 
     Senator John Ashcroft to the position of Attorney General. 
     His past service to the people of my home state of Missouri 
     as Attorney General, Governor and Senator give him the 
     experience and knowledge to be an effective agent of justice 
     for all Americans.
       I am not here today as a U.S. Representative from 
     Missouri's Ninth District. My appearance here is to share 
     with you my unique knowledge of the case of State of Missouri 
     vs. James Johnson.
       From February of 1989 until January of 1996, I served as a 
     Special Prosecutor for the Missouri Attorney General's 
     Office. In this capacity, my duties included the prosecution 
     of politically sensitive or difficult murder cases across the 
     State of Missouri. I handled cases in 53 Missouri counties 
     and have tried and convicted violent criminals in more than 
     60 felony jury trials. In January, 1992, I was assigned as 
     co-counsel in the prosecution of the Johnson case.
       As you know, the Johnson case has taken on national 
     prominence, but not because it involves a convicted cop 
     killer. It has become a focal point in this process due to 
     the strong disagreement that John Ashcroft and some law 
     enforcement groups had with Missouri Supreme Court Judge 
     Ronnie White's sole dissent on the appeal of this case.
       You are measuring John Ashcroft's ability to be the 
     nation's Attorney General by examining his record. In the 
     same manner, John Ashcroft measured Ronnie White's ability to 
     be a federal jurist by scrutinizing his record and published 
     opinions--not his race as some have charged. John Ashcroft 
     has testified that he had serious reservations about Judge 
     White's opinions regarding law enforcement.
       Let me share with you the facts of the Johnson case:
       In December of 1991, Moniteau County Deputy Sheriff Les 
     Roark responded to a domestic disturbance call at the home of 
     James Johnson in rural Missouri. After assuring himself the 
     domestic quarrel had ended, Deputy Roark turned to return to 
     his waiting patrol car. James Johnson whipped a .38 caliber 
     pistol from his waistband of his pants and fired twice at the 
     retreating officer. Johnson, realizing that Roark was 
     clinking valiantly to life, walked over to the fallen officer 
     and shot him again execution-style.
       He next negotiated the dozen or so miles to the home of 
     Moniteau County Sheriff Kenny Jones. Peering through the 
     window, he saw Pam Jones, the sheriff's wife. She was leading 
     her church women's group in their monthly prayer meeting in 
     her family's living room, her children at her knee. Using a 
     .22 caliber rifle, Johnson fired multiple times through the 
     window, hitting her five times. She was gunned down in cold 
     blood in front of her family.
       I wish I could tell you that the carnage soon ended. 
     Instead, James Johnson proceeded to the home of Deputy 
     Sheriff Russell Borts. Displaying the methodical demeanor of 
     a calculating killer, Johnson shot Deputy Borts four times 
     through a window as Borts was being summoned for duty via 
     telephone. Miraculously, Borts survived. Cooper County 
     Sheriff Charles Smith and Miller County Deputy Sandra Wilson 
     were not so fortunate. They died in a hail of bullets when 
     Johnson ambushed them outside the sheriff's office.
       As a result of Johnson's rampage, three dedicated law 
     enforcement officials were dead, one was severely injured and 
     Pam Jones, a loving wife and mother, had been slaughtered.
       Mr. Chairman, I wish to clarify a few of the points raised 
     during yesterday's hearing regarding the quality of James 
     Johnson's representation at trial. Mr. Johnson hired counsel 
     of his own choosing. He chose a team of three experienced 
     defense attorneys who possessed substantial experience in 
     litigation and criminal law. The three litigants had tried a 
     previous capital case together.
       The record conclusively establishes that counsel launched a 
     wide-ranging investigation in an effort to locate veterans 
     who had served with the accused in Vietnam. Counsel hired and 
     presented three nationally-renowned mental health experts on 
     the relevant issue of posttraumatic stress disorder.
       The evidence of guilt, however, was unassailable. Based on 
     the strength of a detailed confession by the accused to law 
     enforcement officers, incriminating statements to lay 
     witnesses, eyewitness accounts to one of the murders and 
     circumstantial evidence, including firearms identification, 
     James Johnson was convicted by a jury of four counts of 
     murder in the first degree. The jury later unanimously 
     recommended a sentence of death on each of the four counts.
       After a lengthy post-conviction hearing on the adequacy of 
     counsel, Circuit Judge James A. Franklin, Jr. found that 
     Johnson's attorneys devoted a significant period of time and 
     expense to his case, including a substantial attempt to 
     develop and present a mental defense. The court found as a 
     matter of law that James Johnson received skilled 
     representation throughout his trial. The case was then 
     automatically appealed to the Missouri Supreme Court, where 
     the convictions and sentences were upheld 4-1. Judge White's 
     lone dissent focused on inadequate assistance of counsel at 
     trial. As I have stated and the record indicates, this is 
     clearly not the case.
       I have been deeply troubled during these confirmation 
     proceedings by statements insinuating, overtly or otherwise, 
     that John Ashcroft is a racist. More to the point, there have 
     been allegations made that John Ashcroft's rejection of Judge 
     Ronnie White's nomination to the federal district court was 
     racially motivated. As a Missourian, I am offended by these 
     baseless claims.
       It is my belief that members of this distinguished panel 
     and members of the entire Senate take the constitutional role 
     of ``advice and consent'' very seriously. It is an integral 
     part of our system of checks and balances.
       It is my humble opinion that no individual took that 
     responsibility more seriously than your former colleague, 
     John Ashcroft. As evidence of that fact, I cite to you the 
     October 5, 1999, Congressional Record:

[[Page 1268]]

       ``[Mr. Ashcroft] Confirming judges is serious business. 
     People we put into these Federal judgeships are there for 
     life, removed only with great difficulty, as evidenced by the 
     fact that removals have been extremely rare. There is 
     enormous power on the Federal bench. Most of us have seen 
     things happen through judges that could never have gotten 
     through the House and Senate. Alexander Hamilton, in 
     Federalist Paper No. 78, put it this way:
       `` `If [judges] should be disposed to exercise will instead 
     of judgement, the consequence would equally be the 
     substitution of their pleasure to that of the legislative 
     body.'
       ``Alexander Hamilton, at the beginning of this Nation, knew 
     just how important it was for us to look carefully at those 
     who would be nominated for and confirmed to serve as 
     judges.''
       Former Senator Ashcroft then elaborated on the dissenting 
     opinions by Judge White in a series of criminal cases, 
     including State of Missouri v. James Johnson. He acknowledged 
     an outpouring of criticism levied against Judge White's 
     nomination by respectable law enforcement groups. His 
     ultimate rejection of Judge White's nomination was based on 
     his judgement and legal reasoning. As you know, a majority of 
     the Senate voted to reject the nominee.
       Reasonable minds can differ on John Ashcroft's conclusion 
     regarding Judge White's fitness as a federal jurist. These 
     differences should be vigorously debated and considered. That 
     is the hallmark of our republic. But branding a good man who 
     has devoted his professional life to one of public service 
     with the ugly slur of ``racist'' without justification or 
     cause is intolerable.
       I know John Ashcroft. He is an honorable man of high 
     integrity and morals. His commitment to his family, his state 
     and his country are beyond compare. His experience and public 
     service make him very qualified to be the next Attorney 
     General of the United States. You have his assurance that he 
     will faithfully execute the law in a way consistent with the 
     will of Congress, in accordance with the rulings of our 
     judicial system and in a manner that protects the liberties 
     of all Americans.
       Again, I would like to thank Chairman Leahy, Ranking Member 
     Hatch and this distinguished panel for allowing me to 
     testify.

  Mr. BOND. Mr. President, 28 years ago, I had the responsibility to 
appoint a State auditor for Missouri. Based upon what I saw to be the 
promise in John Ashcroft--his character, intelligence, and commitment 
to public service--I selected him.
  For the past 28 years, I have had the honor and privilege to work 
with him as he handled his duties in the best and highest tradition of 
Missouri and of this country. Many of my colleagues have also seen him 
during the last 6 years, when he served with distinction in the Senate.
  I know this man. Most of you in this body know this man. He is a good 
man, whose service reflects well on his friends, his family, our State 
of Missouri, and on this great body.
  Everything about John Ashcroft's record of public service and his 
personal integrity and character tells us that he will be faithful to 
the law. Everything about John's career also tells us that he 
understands one thing above all else: The promise contained in this 
Nation of laws can only be realized when all the laws are properly 
enforced.
  Two weeks ago, I went before the Judiciary Committee to ask that they 
judge John Ashcroft's nomination to be Attorney General on the content 
of his character, and reject the slime campaign then underway against 
him.
  Today I must say I stand here profoundly disappointed so many failed 
to push away those whose only goal is to tear down and destroy.
  However, let me add my sincere appreciation of the fact that some of 
our colleagues on the other side of the aisle have chosen to support 
this nomination, despite the strong political winds blowing against 
them, including clear-cut threats of retaliation at the polls for any 
vote in favor of John Ashcroft.
  Senator Russ Feingold was courageous in casting the lone Democratic 
vote in favor of the nominee in committee. My friends, Senator Byrd, 
Senator Dodd, and others, have announced on the floor they intend to 
support the nominee for reasons they gave. I commend them and thank 
them for that.
  I note that others of my colleagues appear to have given the 
nomination full consideration and concluded, for their own substantive 
reasons, not to support this nomination. While I disagree with their 
final decision, I certainly cannot condemn their actions. But I am 
deeply disturbed and disappointed in some of the things done and said 
in the Judiciary Committee and some of the remarks made on the Senate 
floor.
  Over the past month, we have seen self-described spokesmen of various 
activist groups--groups that preach tolerance, diversity and religious 
freedom--systematically display their intolerance, narrowness, and 
dogmatic views, as they try to smear the record of the man who has been 
nominated to be the Attorney General of the United States.
  In fact, I think the words on this chart tell us all we need to 
know--this is from the special interest groups of what they are doing--
``by any means necessary.'' ``We're going to spend whatever it takes.'' 
These are the words of the extreme liberal groups that are out to 
sabotage John Ashcroft and, incidentally, his nomination. The purpose--
search and destroy.
  Like millions of Americans, I watched the Senate confirmation hearing 
to see both how my friend would do in answering questions defending his 
record but also to see how potential opponents would handle their 
responsibilities.
  I, too, hoped for full and fair hearings.
  Two weeks ago, the American people did not see a confirmation 
hearing. They did not see the Senate Judiciary Committee acquit itself 
in the best and highest traditions of this fine body. They did not see 
full and fair hearings. What they saw--pure and simple--was an exercise 
in political theater of the worst kind.
  I cannot begin to express my profound disappointment in how some of 
my colleagues handled their few days in the majority--mishandled their 
days to rise above the rancor. In the Ashcroft hearing, there was an 
opportunity to set an example for us to follow for the rest of this 
session. Instead of rising to the occasion, too many sank to the level 
of the interest groups, where only the shrillest survive.
  What we heard was a campaign designed to create a caricature, and to 
fan the grotesque charges of racism, bigotry, and so-called political 
opportunism--a campaign so out of control that 2 days of questions were 
not enough. An extra day of attack witnesses, and hundreds of 
additional questions--often asking the same questions over and over 
again--were then submitted for the record. They even went so far as to 
ask for a ``complete discussion'' of all conversations that then-
Senator Ashcroft had with Senate leaders about any of the 1,600 
Presidential nominations considered by the Senate during his term.
  That is an impossible task. Nobody can recall those. The reaction was 
that the answers were incomplete, when they did not report all those 
conversations. Who of us could have done that unless we had carried a 
tape recorder in our pocket at all times.
  To the special interest groups who invented the term ``Borking,'' I 
had little expectation they could or would understand or embrace the 
terms of civility and respect. So I expected that false charges would 
be leveled--repeated and repeated--in hopes that something would stick. 
But I had hopes that colleagues would resist those charges. Too often, 
they did not.
  What are those false charges? One of the false charges thrown against 
John Ashcroft was that he could not be entrusted to enforce laws with 
which he personally disagrees. Now, Janet Reno opposed the death 
penalty, yet she was trusted to follow the law. Now, 8 years later, why 
is it that with John Ashcroft, a conservative and committed Christian, 
doubts are aired--and given credence--about his ability to enforce the 
law?
  Some activists who claim to embrace and promote religious diversity 
and tolerance seem unable to extend their beliefs to a conservative 
Christian. I thought we broke that barrier when John F. Kennedy became 
President and we saw the obvious that he did not put his Catholic 
beliefs above the law of the land. And what of our colleague Joe 
Lieberman, whose candidacy for Vice President and his public religious 
utterances tore down even more barriers? Should religious diversity and

[[Page 1269]]

tolerance be extended only to some religions and not others? What we 
see in this part of the smear campaign against John Ashcroft is nothing 
less than religious bigotry.
  Second, we have seen the absolutely reckless charge that John 
Ashcroft opposed desegregation. Several Members have attempted to use 
the long, tortured and controversial school desegregation cases in the 
State of Missouri to color further their caricature of John Ashcroft as 
insensitive and an extremist. To do so, however, they have to ignore 
the facts of the case, the various tortured rulings, the victory in the 
Kansas City case, the fiduciary duty of the Attorney General and the 
widespread opposition to the court-ordered desegregation plan by the 
public and elected officials alike.
  The truth of the matter is that the desegregation cases were filed in 
St. Louis and Kansas City in 1972, with Kansas City being litigated 
until 1995 and the St. Louis case being litigated until 1999. The 
lawsuits and the various court orders have been opposed by Democratic 
and Republican Governors, Attorneys General and State Treasurers and 
the overwhelming majority of Missourians for nearly three decades. To 
single out John Ashcroft and to say his positions on the case and his 
work was that of an extremist insensitive to the needs of Missouri 
school children is one of the more misleading positions ever staked out 
on this floor.
  Since I cannot imagine that colleagues and critics would have one set 
of standards for John Ashcroft, and another for those in their own 
party, it is only fitting that we review the whole record of the day.
  In September of 1981, in response to the controversial Eighth Circuit 
decision, the current Minority Leader of the House of Representatives, 
Richard Gephardt, introduced a constitutional amendment to ban court 
ordered busing to achieve racial integration. Congressman Gephardt was 
also a sponsor of legislation to bar federal courts from mandating 
busing as a remedy for segregated schools. In explaining his 
legislation, the esteemed minority leader called busing for 
desegregation ``a total failure'' and called the court-ordered busing 
program in the St. Louis schools ``an obscenity and a crime against the 
youth of St. Louis.'' About the same time, again while Senator Ashcroft 
was Missouri Attorney General, Missouri Senator Tom Eagleton, my 
predecessor, stated publicly that he ``personally opposes court ordered 
busing'' and did not believe the St. Louis plan would work. While in 
the Senate he fought the Department of Health, Education and Welfare 
practice of denying funding to school districts that do not have a 
school desegregation plan in place.
  Beyond that, both Missouri State Treasurers who served while John 
Ashcroft was Attorney General, both of whom were Democrats, opposed the 
court ordered desegregation. In fact, the second of those Treasurers, 
the late Mel Carnahan, was highly critical of both Attorney General 
Ashcroft and me for the handling for the desegregation case. He was not 
critical of anyone opposing the plan, rather he felt the Attorney 
General was not being aggressive enough in the fight. In 1981, he told 
UPI, ``In my opinion, they have not staffed up and produced in this 
case and that's the reason we're where we are today on desegregation.''
  And in 1983, as he was gearing up to run for Governor, Treasurer 
Carnahan even took the unusual action of requesting a state 
appropriation so that the Treasurer's office could join the case, 
initiating new litigation against the federal court order desegregating 
the St. Louis schools. The Treasurer said the desegregation payments 
represented ``burdensome demands on the taxpayers of the state.'' He 
further stated ``my staff and I have been intensely studying the 
financial problems created for the State of Missouri by the court 
orders in the St. Louis desegregation case. It is my intention to file 
additional actions or motions directed to testing the issues of state 
liability for payments . . . I plan to use outside counsel for a 
separate additional effort to supplement and complement the efforts of 
the Attorney General to reverse or modify the orders as to state 
financial liability.''
  As Governor, I refused to support the appropriation because it was 
the job of the Attorney General to handle legal matters that impact the 
state. But that statement by the state Treasurer, a Democrat and future 
Governor, shows that John Ashcroft was clearly in the mainstream and 
representing the people of the state in a complicated and controversial 
legal matter. Unless of course Mel Carnahan was an extremist too. The 
strong democratic opposition did not stop in the eighties but continued 
right on through the '98 election cycle. In fact, the current Missouri 
Attorney General, Democrat Jay Nixon, made opposition to state 
involvement in school desegregation a platform of his first campaign 
for Attorney General, calling busing ``a failed social experiment'' 
that must end in the State of Missouri. And he criticized Ashcroft and 
Webster, the two previous Attorneys Generals by stating ``The 
republican team hasn't been fighting the battle against unfair 
desegregation payments; they've been losing it.'' ``We need new and 
better lawyers to win the case.''
  Upon taking office, Nixon filed suit to end state involvement in the 
St. Louis desegregation case and filed suit to overturn a court 
decision in Kansas City. Shortly after that he appealed and fought the 
Kansas City plan all the way to the United States Supreme Court. In St. 
Louis, he criticized the appointment of a well respected St. Louisan 
appointed to negotiate a settlement. He even filed suit on the eve of 
the beginning of the school year to bar student participation in a St. 
Louis city-county transfer program.
  Former Congressman Bill Clay, in a letter to President Clinton, 
sharply criticized the Democratic Attorney General as ``waging 
unremitting warfare'' against the court orders which ``provided 
educational opportunity for many thousands of students in St. Louis''. 
Nixon was also repeatedly criticized by the St. Louis chapter of the 
NAACP for his efforts. In 1995, the group said those efforts ``will 
wipe out the gains made by desegregation and deprive city parents of 
opportunities they now have to better their children's education''. The 
Kansas City Star said this Attorney General ``climbed over the backs of 
African Americans'' to advance his career.
  Yet when this man wanted again to advance his political career, was 
the Senator from Massachusetts condemning his actions? Quite to the 
contrary, the Senator from Massachusetts was actively promoting his 
political career, even headlining a fund raiser for him here in 
Washington. Nor can I imagine the Senator labeling the positions of 
Congressman Gephardt, former Senator Eagleton, and the late Governor 
Carnahan, whose campaign the Senator from Massachusetts supported, as 
extreme. The hypocrisy could not be clearer. And leads us back to those 
guiding principles of this entire effort against John Ashcroft--by any 
means necessary, and spend whatever it takes.
  The third charge centers around his handling of the nomination of 
Judge Ronnie White. Much has been said about this, but let me simply 
say that the emotional power and pain of the Johnson case remains as 
strong today as it was 10 years ago when the brutal murders tore apart 
the lives of 4 families and their communities.
  For all my colleagues who agreed with Judge White's reasoning that 
would have tossed out the conviction and granted a new trial to the 
triple cop-killer who also killed the sheriff's wife right in front of 
her 8-year-old daughter; for those who agreed with his lone dissent 
that Johnson's lawyers didn't do a good enough job so he deserves a new 
trial--I would hope they would channel their strong views and weigh in 
with Missouri's Governor in seeking a commutation of his death 
sentence. Johnson's appeal to the U.S. Supreme Court has been denied 
and he now sits on death row. I can certainly provide any of you the 
correct address of the Governor in Jefferson City.
  Finally the latest attempt to smear--so weak that's it more of a 
smudge--was made by a democrat activist who claimed that 16 years ago 
John

[[Page 1270]]

Ashcroft asked a legal but inappropriate question during a job 
interview. Quickly refuted by others present in the interview this 
attempted smear fades from view, but again takes time and energy to 
respond to. And when all one's energy is spent knocking down false 
charges it is hard to find the time to talk about what you believe can 
be accomplished at the Justice Department--which of course is what the 
people of America are really interested in. How will you do the job? 
What are your plans to improve the lives and opportunities for all 
Americans?
  So where does all this leave us? Back where we started.
  A conservative, pro-life, Christian simply isn't fit to serve 
according to the litmus test of a bunch of left-wing groups. And rather 
than admit it, the smokescreen of false charges must be used to justify 
their own intolerance. It is a sad day that we have come to this. But 
through it all John Ashcroft has stayed firm. Firm in his belief that 
in America our sense of fairness will outweigh short term political 
gain. Firm in his belief that while his attackers have been shameless 
and unrelenting, that he should not, and will not respond in kind.
  I am so proud of John Ashcroft. I am proud of his service to Missouri 
and the nation over the last 28 years. At each level of responsibility, 
he not only acquitted himself as a gentleman and good American, but he 
did great work on behalf of so many citizens. That is true of his terms 
as Missouri Attorney General. As Governor. And United States Senator. 
He is a fine man. He is a gentleman. A good man of deep conviction who 
will do great service on behalf of all Americans as our next Attorney 
General. So I am also very proud that a fellow Missourian will become 
the next Attorney General of the United States of America. But perhaps 
most of all, I am proud to be able to call John Ashcroft my friend.
  I yield the floor.
  Mr. NELSON of Nebraska. Mr. President, today I will vote to confirm 
former Senator John Ashcroft as Attorney General of the United States. 
The President of the United States has the constitutional authority to 
nominate those individuals he thinks will most ably advise him; 
therefore, I give President Bush latitude in choosing the members of 
his Cabinet. My role in this process, as defined by the Constitution, 
is to give my advice and consent to the President on his nominees for 
Cabinet positions. In keeping with that duty, I want to present a clear 
explanation as to why I will vote to confirm the President's choice for 
Attorney General.
  I have known John Ashcroft for well over 10 years. We both have had 
the honor to serve as the Chief Executive for our respective States. We 
were even colleagues for 2 years when our terms as Governor overlapped. 
I am familiar with his philosophy and his viewpoints and though we do 
not see eye-to-eye on every issue I respect him as a person and 
consider him a friend.
  But before my statement is dismissed as a rubber stamp approval, let 
me be clear: My vote to confirm Senator Ashcroft is not without some 
concerns. I am disappointed with his decision to accept an honorary 
degree from Bob Jones University, an institution that has become a 
national symbol for racial and religious intolerance, without any 
acknowledgement or discussion let alone repudiation of that school's 
policies that were egregious. And secondly, his handling of the Judge 
White nomination was considered by many of his former colleagues to 
have been unfair.
  But these two instances, while troubling, are not disqualifying. For 
me this vote today is an affirmative vote as a prologue to the future 
rather than a reaction to the past. This is supported by his pledge he 
made at his confirmation hearing to serve as Attorney General for ``all 
the people.''
  I take Senator Ashcroft at his word when he says, and I quote, ``I 
understand that being Attorney General means enforcing the laws as they 
are written, not enforcing my own personal preferences. It means 
advancing the national interest, not advocating my personal interest.'' 
Throughout his confirmation hearing, Senator Ashcroft was unequivocal 
and unwavering with respect to the manner in which he would serve, if 
elected, as Attorney General.
  Additionally, yesterday I spoke to Senator Ashcroft and expressed my 
reservations and concerns. In that conversation, he reiterated his 
commitment to lead a professional and nonpartisan Justice Department, 
and assured me of his intention to honor his pledge.
  For me, this affirmative vote is not about politics; it is about 
potential and opportunity. If Senator Ashcroft is a man of integrity--
which he says he is and which I believe him to be--then he will uphold 
his constitutional duty, prove his nay-sayers wrong, and work 
tirelessly to help ensure justice for all. Indeed, the stakes are high, 
but that is exactly where Senator Ashcroft has put them. I look forward 
to working with him and to helping him keep his unequivocal promise to 
the American people.
  Mr. SMITH of New Hampshire. Mr. President, Senator Ashcroft has 
received broad bipartisan support from a number of organizations. I ask 
unanimous consent that a list of 332 organizations supporting Senator 
Ashcroft be placed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  332 Organizations Endorsing John Ashcroft for U.S. Attorney General

               (Compiled by the Free Congress Foundation)

       48th Ward Regular Republican Organization (Chicago), 60 
     Plus Association, A Choice for Every Child, Adirondack 
     Solidarity Alliance, Alabama Citizens for Life, Alabama 
     Policy Institute, Alaska Catholic Defense League, Alaska 
     Right To Life, America's Survival, Inc., American Association 
     of Christian Schools, American Association of Pro-Life 
     Obstetricians and Gynecologists, American Center for Law and 
     Justice, American Civil Rights Coalition, American Civil 
     Rights Union, American Conservative Union, American Council 
     for Immigration Reform, American Decency Association, 
     American Family Association, American Family Association of 
     Arkansas, American Family Association of Colorado, American 
     Family Association of Kentucky, American Family Association 
     of Michigan, American Family Association of Mississippi, 
     American Family Association of New Jersey, American Family 
     Association of New York, American Family Defense Coalition, 
     California Central Coast Chapter.
       American Freedom Crusade, American Immigration Control, 
     American Land Rights Association, American Policy Center, 
     American Pro-Constitutional Association, American Renewal, 
     American Shareholders Association, Americans for Ashcroft, 
     Americans for Military Readiness, Americans for Tax Reform, 
     Americans for the Right to Life, Americans for Voluntary 
     School Prayer, Americans United for the Unity of Church and 
     State, Arkansas Family Council, Association of American 
     Educators, Association of American Physicians and Surgeons, 
     Association of Christian Schools International, Association 
     of Concerned Taxpayers, Association of Maryland Families, 
     Baptist International Missions, Inc.
       Brass Roots, BrotherWatch, California Public Policy 
     Foundation, California Republican Assembly, Calvary Baptist 
     Academy, Campaign For California Families, Capital Research 
     Center, Catholic Citizens of Illinois, Catholicvote.org, 
     Center for Military Readiness, Center for Pro-Life Studies, 
     Center for Reclaiming America, Center for the Study of 
     Popular Culture, Christian Coalition of Alabama, Christian 
     Coalition of America, Christian Coalition of California, 
     Christian Coalition of Florida, Christian Coalition of 
     Georgia, Christian Coalition of Maine, Christian Coalition of 
     Montana, Christian Coalition of Ohio, Christian Coalition of 
     Rhode Island, Christian Schools of Vermont, Christian Voice.
       Christus Medicus Foundation, Citizen Soldier, Citizens 
     Against Government Waste, Citizens Against Higher Taxes, 
     Citizens Against Homicide, Citizens Against Repressive 
     Zoning, Citizens for a Sound Economy, Citizens for Community 
     Values, Citizens for Constitutional Property Rights, Citizens 
     for Excellence in Education, Citizen for Law and Order, 
     Citizens for Less Government, Citizens for Traditional 
     Values, Citizens United, CNP Action, Inc., Coalition for 
     Better Community Standards, Coalition for Constitutional 
     Liberties, Coalition for Local Sovereignty, Coalition on 
     Urban Renewal and Education, Coalitions for America, Colorado 
     Association of Christian Schools.
       Committee for a Republican Future, Concerned Citizens 
     Opposed to Police States, Concerned Women for America, 
     Concerned Women for America of Colorado, Concerned Women for 
     America of Kansas, Concerned Women for America of 
     Mississippi, Concerned Women for America of New Jersey,

[[Page 1271]]

     Concerned Women for America of North Carolina, Concerned 
     Women for America of N.E. Texas, Concerned Women for America 
     of S.E. Texas, Concerned Women for America of Utah, Concerned 
     Women for America of Virginia, Connecticut Eagle Forum, 
     Conservative Caucus, Inc., Conservative Party of New York 
     State, Conservative Party of Ontario County, New York, 
     Conservative Victory Funds, Constitution Party of Vermont, 
     Coral Ridge Ministries, Coral Ridge Ministries Media, Inc., 
     Council of Conservative Citizens, Inc., Crime Victims United 
     of California, Culture of Life Foundation, Cutting Edge--A 
     Talk Show, Defenders of Property Rights, Delaware Christian 
     Coalition, Delaware Home Education Association, D.T. Crime 
     Victims Bureau.
       Eagle Forum, Eagle Forum of Alabama, Eagle Forum of Alaska, 
     Eagle Forum of Arkansas, Eagle Forum of California, Eagle 
     Forum of Georgia, Eagle Forum of Mississippi, Eagle Forum of 
     New Jersey, Eagle Forum of North Carolina, Eagle Forum of 
     Ohio, Eagle Forum of Oklahoma, Eagle Forum of Rhode Island, 
     Eagle Forum of South Carolina, Eagle Forum of Wisconsin, 
     Eastern Orthodox Women's Council of Greater Bridgeport, 
     English First, Environmental Conservation Organization, Erie 
     Citizens Against Pornography, Evergreen Freedom Foundation, 
     Families Allied for Intelligent Reform of Education, Families 
     and Friends of Murder Victims, Family Association of 
     Kentucky, Family First, Nebraska, Family Life Communications, 
     Family Policy Network, Family Research Council, Family 
     Research Forum of Wisconsin.
       Family Research Institute of Wisconsin, Family Taxpayers 
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     Freedom.

  Mr. CORZINE. Mr. President, I rise in opposition to the nomination of 
John Ashcroft to be Attorney General.
  I have given a great deal of thought to this nomination and have 
considered it very seriously. As a new Senator, I did not serve with 
Senator Ashcroft, so I do not know him personally. However, I 
personally attended the nomination hearings and listened carefully to 
the testimony. I also reviewed many of the statements prepared by 
supporters and opponents of the nomination, and heard from a large 
number of my constituents in New Jersey.
  After considering all the facts, I concluded that Senator Ashcroft, 
while in many ways a very fine and distinguished public servant, simply 
is not the right person for the job. Let me take a few moments to 
explain my thinking.
  In general, I believe that a President's choice for a Cabinet 
position deserves deference. However, the position of Attorney General 
deserves special scrutiny. As head of the Justice Department, the 
Attorney General has the unique responsibility to interpret the law on 
behalf of the executive branch, to investigate and prosecute suspected 
criminals, to uphold our civil rights laws, to represent the government 
before the Supreme Court through the Office of the Solicitor General, 
and to manage immigration, among many other critically important 
responsibilities. In addition, the Attorney General, while serving the 
President, also must maintain a degree of independence from politics, 
so that he or she can pursue wrongdoing within the government. The 
Attorney General is the people's lawyer. For all these reasons, it is 
imperative that the Attorney General be an individual not only of 
unquestioned personal integrity, but someone who will be broadly 
perceived as administering justice and enforcing the law fairly and 
impartially for all people.
  Unfortunately, after examining Senator Ashcroft's record, I have 
serious concerns about whether as Attorney General he would be able to 
set aside his long-standing and strongly held views and perform his 
duties in a fully objective, fair and impartial manner.
  I base this conclusion on several prior instances in which Senator 
Ashcroft's view of the law and the facts seem to have been heavily 
biased and colored by his ideology. Perhaps most

[[Page 1272]]

importantly, in 1997, he led the opposition to Judge White of the 
Missouri Supreme Court by making a series of accusations that were 
inaccurate. For example, he claimed that Judge White opposed the death 
penalty and believed that ``it apparently is unimportant . . . how 
clear the evidence of guilt.'' This was very unfair, as Judge White 
voted to affirm death sentences in the vast majority of cases that had 
come before him, and had unequivocally assured the Judiciary Committee 
that he was prepared to impose the death penalty. In fact, in the case 
that Senator Ashcroft used to criticize Judge White, the Judge's 
decision was based not on opposition to the death penalty, but on a 
reasoned analysis of serious constitutional problems that he believed 
had prevented the defendant from receiving a fair trial. This was a 
clear example of Senator Ashcroft's ideology coloring his 
interpretation of the facts.
  Senator Ashcroft's strong ideological approach also seemed to skew 
his views in the case of Bill Lann Lee, a nominee to head the Civil 
Rights Division of the Department of Justice. Senator Ashcroft said he 
voted again Lee because of ``serious concerns about his willingness to 
enforce'' a Supreme Court decision limiting preferences for minority 
companies in awarding government contracts, and the Senator adopted a 
highly restrictive interpretation of that decision, challenging Mr. 
Lee's interpretations of the Court's instructions and guidance. 
However, this challenge appears to have been based on Senator 
Ashcroft's own ideological opposition to affirmative action, not the 
law or the Court's direction.
  In another case, when he served as attorney general of Missouri, 
Senator Ashcroft sought to invalidate a State law that authorized 
nurses to engage in various practices, including the dispensing of 
contraceptives. Senator Ashcroft, a strong opponent of abortion, argued 
that this was unconstitutional. Yet there was no constitutional 
authority for this position, and it was rejected by the Missouri 
Supreme Court on a unanimous vote. Again, Senator Ashcroft's strongly 
held ideological views had skewed his views of the law and led to a 
highly subjective and biased conclusion with little objective merit.
  These are just a few of many examples in which Senator Ashcroft 
demonstrated an inability to move beyond his own views and reach a 
fair, objective and balanced conclusion about the merits of a legal 
position. If history is any guide, his enforcement of the law will be 
seriously biased by his ideological views. This, in my view, 
disqualifies him for a position as Attorney General, for which 
fairness, objectivity and balance are perhaps the most important 
qualities. In a period in our nation's history in which we need to come 
together after a divisive election, I believe it would be a mistake to 
select an Attorney General whose tendency to view the law ideologically 
could aggravate our nation's divisions.
  For all these reasons, I oppose this nomination.
  Mrs. CARNAHAN. Mr. President, encircling the Great Seal of the State 
of Missouri are the words ``United We Stand; Divided We Fall.'' It is a 
motto that has guided our people well over the last 180 years.
  In that same spirit, President Bush, at the onset of this new 
century, has declared that he wants to be ``uniter not a divider.''
  I am deeply encouraged, for I want to join with him and the Congress 
to reach across the chasm of our political differences to do some hard 
work for the American people.
  Within the Senate, we have already reached out in a spirit of bi-
partisanship in structuring our committees. So far I have had the 
opportunity to vote in favor of all of the President's Cabinet 
nominees.
  This was the beginning of a conciliatory course--a fragile alliance--
but, nonetheless, one that I believe must mark any real progress in the 
107th Congress.
  But I do not believe that the nomination of John Ashcroft furthers 
the conciliatory tone that President Bush has set.
  Senator Ashcroft has a long record of public service--a record that I 
brought to the attention of the Judiciary Committee when I introduced 
him. But in the end, I must determine if that record makes him suitable 
to be the United States Attorney General.
  Had Senator Ashcroft been nominated for any other Cabinet post, I 
could have easily supported him. His credentials or faith are not in 
dispute here, nor should they ever be. Rather, it is the conflict that 
his words and deeds have generated throughout his public career.
  Given the sweeping discretionary power of this position, I do not 
believe that the office of Attorney General of the United States is the 
right job for Senator Ashcroft.
  When asked by my colleagues about this nomination, I urged them to 
ignore their personal relationships and political considerations. 
Instead, I called on them to vote their conscience. I must do the same.
  Regrettably, I am unable to provide my consent for this nomination.
  I am compelled by principles and beliefs I shared with my husband for 
over forty years in public life, including the belief that we should do 
all in our power to bring people together rather than drive them apart.
  The call of conscience must supersede all others. It is the only 
reliable anchor in the tempestuous sea of public life.
  In casting this vote, I do so knowing that John Ashcroft will likely 
be confirmed. I wish him every success. I hope he will take these votes 
of dissent as they are intended: not as acts of spite or recrimination, 
but as pleas for healing and harmony.
  While I must withhold my vote on his confirmation, I pledge my 
support on all matters that he and the President pursue in the interest 
of a more just and peaceful nation.
  Mr. ENZI. Mr. President, I rise today in support of the confirmation 
of my friend and former colleague, Senator John Ashcroft, to be 
Attorney General of the United States. As a man of the highest 
integrity, experience, and ability, Senator Ashcroft is uniquely 
qualified to serve as our nation's premier law enforcement officer and 
the administrator of one of the federal government's largest agencies.
  Senator Ashcroft's qualifications for the position of Attorney 
General have been well documented on the floor and I only need mention 
them in passing: law professor, State auditor, two-term Attorney 
General, two-term Governor, and United States Senator from the State of 
Missouri. Such a record of public service spanning such a period of 
years demonstrates the great trust and admiration the people of 
Missouri have placed in Senator Ashcroft over nearly 30 years.
  What has impressed me about Senator John Ashcroft's record is not 
only the length of public service, but the breadth of this experience 
as well. There is no doubt that the ideal candidate for the position of 
attorney general is someone who has a good grasp of the law and a true 
dedication to enforce that law. However, the job entails a great deal 
more than that. In fact, the attorney general needs to be a good 
manager to oversee the 125,000 employees of the Department of Justice 
in departments as diverse as the Immigration and Naturalization 
Service, the Federal Bureau of Investigation, and the Federal Bureau of 
Prisons. Senator Ashcroft's sixteen years as an executive in Missouri, 
first as State attorney general and then as Governor, have made him 
uniquely qualified to manage one of the largest federal agencies. 
Moreover, his service with us in the United States Senate and his 
involvement on the Senate Judiciary Committee have prepared him to work 
closely with Congress in enforcement and development of Federal law.
  In addition to Senator Ashcroft's remarkable credentials to serve as 
United States Attorney General for all Americans, I would like to 
remark on his particular interest and experience in the crime issues 
facing rural communities. As many of my colleagues know, in the past 
several years rural America has witnessed an explosion in illegal 
methamphetamine use, especially among our nation's youth. Nationwide, 
meth use increased 60% between 1992 and 1999 among America's

[[Page 1273]]

high school seniors. Unfortunately, the story is much bleaker in our 
rural communities. In my own State of Wyoming, methamphetamine 
investigations increased 600% between 1992 and 1998. Like all illegal 
drug abuse, meth abuse tears at the very fabric of society by 
destroying families, increasing violent crime, and dashing the dreams 
and promise of all too many of our nation's youth.
  While the battle against meth use and trafficking is primarily a 
State responsibility, there is a role for the federal government by 
supplying resources for law enforcement training, meth lab cleanup, and 
education and prevention programs to help parents and teachers teach 
children the dangers of meth. Senator Ashcroft was a true leader in 
recognizing and furthering a limited, focused role for the Federal 
Government in the battle against methamphetamine use and trafficking. 
In 1999, Senator Ashcroft introduced legislation to combat this 
problem. While I knew that Missouri had faced many of the same problems 
faced in Wyoming, I was truly impressed with Senator Ashcroft's 
understanding of the meth problem and willingness to listen to the 
problems facing law enforcement in other states. Before introducing his 
legislation, Senator Ashcroft and his staff made a particular effort to 
understand the problems facing law enforcement personnel in Wyoming and 
incorporated our suggestions in Senator Ashcroft's legislation to help 
address these problems. I have to say that Senator Ashcroft's deep 
understanding of the greatest crime issue facing our State of Wyoming 
and his experience as a problem solver both as Governor of Missouri and 
United States Senator give me great encouragement that he will work 
with the Congress to address the needs of all states, not just those 
with large urban areas.
  I must say that Senator Ashcroft's understanding and appreciation for 
the issues involved in the area of rural crime stands in stark contrast 
with my experience with the previous Administration. Law enforcement 
officials in my State have all too often been given the run around by 
the Department of Justice and the Office of National Drug Control 
Policy when they have attempted to pursue additional funding programs 
or when they have attempted to include additional Wyoming counties to 
the list of High Intensity Drug Trafficking Areas. In fact, in one 
conversation, an employee at the ONDCP told a top law enforcement 
officer in Wyoming that they didn't have anyone at the department that 
could approve new HIDTAs! I found that somewhat astonishing given that 
is one of the very purposes of the office of the Drug Czar. Given his 
track record in the State of Missouri and in the United States Senate, 
I have every confidence that a Justice Department headed by John 
Ashcroft will pursue a coordinated approach with the Office of National 
Drug Control Policy and other agencies to help eliminate the red tape 
and ensure that our law enforcement personnel in rural states are 
receiving the resources they need to keep our communities safe and drug 
free.
  We have heard a great deal of acrimony from some of the far-left 
interest groups over the nomination of Senator Ashcroft. Evidently 
these groups are intent in destroying Senator Ashcroft's reputation 
even if they are unsuccessful in derailing his confirmation. The 
attacks by these organizations are entirely unfounded and seem more 
designed to raise funds for the particular interest groups than to find 
the truth about our former colleague.
  I must say that one of the charges that has been most disturbing to 
me is the insinuation that Senator Ashcroft will not faithfully enforce 
the laws of the United States because he is a devoted Christian. Not 
only are such charges entirely unfounded, but they smack of a religious 
bigotry of the most dangerous kind. Such bigotry is nothing new, but it 
should be condemned in any age in which it raises its ugly head. One no 
less than George Washington warned against the efforts in his own day 
to banish religion from the public square. In his farewell address of 
September 29, 1796, President Washington remarked:

       Of all the dispositions and habits which lead to political 
     prosperity, Religion and morality are indispensable supports. 
     In vain would that man claim the tribute of Patriotism, who 
     should labor to subvert these great Pillars of human 
     happiness, these firmest props of the duties of Men and 
     citizens.

  We should pay heed to the words of our first president and disavow 
any effort to banish Senator Ashcroft, or any other public servant, 
from public life because of his or her religious beliefs.
  The founders were well aware of the dangers inherent in applying 
religious tests to the holding of public office. That is why they 
included a specific prohibition to any such practice in Article six of 
the Constitution where they said ``no religious Test shall ever be 
required as a Qualification to any Office or public Trust under the 
United States''. Rather than ask that Senators apply an explicit test 
such as that prohibited in Article six, the far-left special interest 
groups that oppose Senator Ashcroft's nomination have turned instead to 
rumor and innuendo to imply that anyone who has strong religious 
beliefs such as those held by Senator Ashcroft is incapable of 
enforcing federal laws with which he might not be in total agreement.
  Nor surprisingly, these groups have not brought forth any specific 
examples where Senator Ashcroft failed to enforce the laws when he 
served as attorney general or governor of the State of Missouri. 
Instead, all the evidence seems to point to the contrary. Not only did 
the people of Missouri continue to elect John Ashcroft to positions of 
public trust, but his fellow State attorneys general and his fellow 
governors elected him in turn president of their respective 
organizations. Keep in mind that these organizations are bi-partisan 
and represent members from a wide spectrum of political and 
philosophical views. The fact that the State attorneys general and the 
State governors would choose John Ashcroft to head their organizations 
is evidence of the trust and respect that his colleagues had for his 
integrity, his ability, and his willingness to fairly and faithfully 
enforce the laws as he found them. This record stands in stark contrast 
to the revisionist history that has been spread in the media by groups 
opposed to Senator Ashcroft's nomination.
  I have known Senator Ashcroft both as a colleague and a friend. He is 
a thoughtful and honorable public servant who has served the people of 
Missouri and the United States with distinction for nearly thirty 
years. He is dedicated to consistently and fairly upholding and 
enforcing the Constitution and laws of the United States. I have every 
confidence that Senator Ashcroft will bring dignity and integrity to 
the office of the Attorney General as he has to the numerous positions 
of public trust he has filled in the past. I urge my colleagues to join 
my voting to confirm Senator Ashcroft as Attorney General.
  Mrs. LINCOLN. Mr. President, if there is one thing I have learned 
about working in Washington is that we must learn to respect and 
recognize our differences. I certainly expect a new President to select 
Cabinet nominees who share his basic beliefs and ideology. I have thus 
far voted to confirm every nominee that President Bush has submitted to 
the Senate since he took office--even those who hold positions on 
important issues that are different from my own. In fact, it is fair to 
say that I have been generally pleased with the talented and dedicated 
public servants President Bush has chosen to lead this Administration.
  While the President retains the Constitutional authority to appoint 
his Cabinet, I also take very seriously my Constitutional 
responsibility as a Senator to provide advice and consent on his 
appointments. Our role in the confirmation process isn't to afix a 
rubber stamp on presumptive nominees, especially for a position as 
important as this. Unlike other Cabinet posts, Mr. President, the 
Attorney General is responsible for representing and defending the 
rights and constitutional freedoms of every American. I believe this 
position requires someone who understands and appreciates that not 
every American is born with equal access to

[[Page 1274]]

the opportunities and blessings that make our nation great.
  In my opinion, to fulfill the duties with which the Attorney General 
is entrusted, the nominee must be pro-active in his pursuit against 
discrimination and injustice as the law demands. Successfully defending 
the rights of every citizen ultimately depends upon the wide discretion 
an Attorney General exercises to initiate investigations, establish 
Task Forces and prosecute wrongdoers.
  After reading Senator Ashcroft's response to the questions I 
submitted together with his testimony before the Senate Judiciary 
Committee, I am reasonably confident he is prepared to react to crime 
and injustice when it occurs. I am not convinced, however, that he is 
prepared to do any more when called upon to enforce a law with which he 
passionately disagrees. His convictions are deeply held and he has 
fought stubbornly for them in the past. I truly doubt that he can set 
them aside so easily now.
  I must tell you that I am deeply moved by the constitutional role I 
am called upon to perform today. Passing judgement on a former 
colleague is extremely difficult and not a part of our normal 
responsibilities. I respect Senator Ashcroft as a former colleague and 
someone I know to be deeply committed to his religious teachings and 
the causes he champions. Also, I would like to add that I would gladly 
support his confirmation to any other Cabinet post.
  In the end, though, I have concluded it is his deeply held beliefs 
over issues that fall directly under the jurisdiction of the Justice 
Department that will impede his ability to do this job--to enforce the 
law without bias or favor toward anyone; to vigorously fight 
discrimination and its painful legacy and to defend the constitutional 
rights he has fought so zealously to overturn in the past. Ironically, 
his passionate advocacy that inspires respect in me and others is what, 
in my opinion, makes Senator Ashcroft the wrong man for this job.
  For the benefit of my constituents who hold passionate views on both 
sides of this issue and for my colleagues listening today, I would like 
to take a few moments to highlight some of the factors I considered 
when making my decision.
  I must confess, Mr. President, when I reviewed the history of Senator 
Ashcroft's involvement in an effort to desegregate public schools in 
St. Louis, I was surprised and troubled by what I read. According to 
testimony presented at his confirmation hearing, Senator Ashcroft, in 
his capacity as Attorney General of Missouri, engaged in an 
extraordinary legal campaign that spanned several years to block 
implementation of a voluntary school integration plan in St. Louis. 
During the course of this litigation, Senator Ashcroft initiated 
numerous challenges and appeals that were firmly and repeatedly 
rejected by the courts. Instead of accepting the decisions rendered, he 
pursued a course of action that drew judicial criticism and, in one 
instance, a threat of contempt for failure to comply with a court 
order.
  I believe it is one thing to vigorously assert your legal rights in a 
court of law. It's something else, however, for a state's top law 
enforcement official to display such a cavalier attitude toward the 
judicial branch of government. I know the issue of racial integration 
in public education can ignite powerful emotions. I was a young 
elementary school student when Helena public schools in Arkansas were 
integrated. This was not an easy transition at the time and it 
certainly left a powerful and positive impression on me that I shall 
never forget. So I know that honest people can disagree passionately 
about this issue and I don't question the personal views Senator 
Ashcroft may have on this matter generally. I do, however, question the 
judgement he exercised as a public official in this case.
  As a Senator from a state that experiences difficulty in recruiting 
physicians and other qualified medical professionals to work in rural 
communities, I was also concerned by actions Senator Ashcroft took as 
Attorney General to restrict access to medical care in underserved 
communities. According to the record, Senator Ashcroft issued an 
opinion as Attorney General of Missouri and later intervened in a court 
case to prohibit qualified nurses with advanced training from providing 
necessary and routine gynecological services to underprivileged female 
patients at clinics in Missouri. The medical services at issue included 
conducting breast and pelvic examinations, performing PAP smears and 
providing information about effective contraceptive practices. 
Furthermore, the health clinics involved were located in counties in 
which there was not a single physician who would accept Medicaid 
eligible patients for pre-natal care or childbirth.
  Senator Ashcroft put the weight of his office behind an effort to 
declare the gynecological services at issue in this case outside the 
scope of practice for professional nurses in Missouri. Thankfully, for 
the female patients who depend on qualified medical professionals who 
aren't physicians to deliver necessary care, that claim was rejected in 
a unanimous ruling by the Missouri Supreme Court.
  I am concerned about access to care because, after growing up in East 
Arkansas, I am well aware of the obstacles women face in obtaining the 
specialized medical care they need. While I respect the right of each 
state to establish their own standards of medical practice, I think 
that by going to court against the nurses of his state, Senator 
Ashcroft displayed a relevant degree of insensitivity on a critical 
issue to the persons most affected in this case.
  I must tell you I'm still deeply disappointed by the way this body 
treated Judge Ronnie White. In my opinion, Judge White is a decent, 
honorable man who deserved much better. Even though I believe Senator 
Ashcroft is sincere in his belief that Judge White should not sit on 
the federal bench, I seriously question the manner in which he acted to 
defeat his nomination. Now that we have all had time to review a more 
complete and balanced report of Judge White's record, I am confident 
the Senate would not make the same mistake again. In fact, Senator 
Ashcroft has received the same kind of deference and fair treatment 
that I wish he had shown Judge White.
  I was taught at an early age that public service is a high calling 
and a noble profession. In accordance with that belief, it is essential 
that we in the Senate discharge our responsibility to consider 
nominations in a manner that encourages the most talented and qualified 
individuals to seek employment in the public sector. I am confident 
that the Senate fell short of that standard in this case.
  Taken together--the battle waged over desegregation in St. Louis, the 
attempts to stop nurses from providing basic medical services to 
underserved patients and the decision to defeat the nomination of a 
qualified nominee who deserved better--these instances and other facts 
in the record lead me to conclude that Senator Ashcroft will further 
divide our country on these sensitive issues.
  I encourage the President to consider another nominee who will help 
him heal these wounds, not open them anew. In the alternative, I hope 
our new President will work to heal the wounds inflicted by this 
nomination on the Senate, the Presidency and our nation so that we can 
move forward to address the problems of all Americans in a bipartisan 
way.
  Mr. KYL. Mr. President, I rise in strong support of the nomination of 
John Ashcroft to be the U.S. Attorney General.
  Senator Ashcroft has superb legal qualifications. He was educated at 
Yale and the prestigious University of Chicago law school. While in the 
U.S. Senate, he served on the Judiciary Committee and chaired its 
Subcommittee on the Constitution.
  Senator Ashcroft is also the most experienced nominee for U.S. 
Attorney General in American history. He served as Missouri's attorney 
general, its governor, and, of course, one of its U.S. Senators. Since 
the founding of the nation, none of the previous 66 Attorneys General 
had his level of experience.
  Opponents have offered a number of reasons for their opposition. I 
would

[[Page 1275]]

like to take this opportunity to respond.
  First, what should the standard for confirmation be? The general rule 
for confirmation of Justice Department nominees was well-stated by 
Senator Leahy in connection with President Clinton's nomination of 
Walter Dellinger to be head of the Office of Legal Counsel at the 
Department of Justice:

       The Senate has a responsibility to advise and consent on 
     Department of Justice and other executive branch nominations. 
     And we must always take our advice and consent 
     responsibilities seriously because they are among the most 
     sacred. But I think most Senators will agree that the 
     standard we apply in the case of executive branch 
     appointments is not as stringent as that for judicial 
     nominees. The President should get to pick his own team. 
     Unless the nominee 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. There is no doubt about this nominee's qualifications 
     or integrity. This is not a lifetime appointment to the 
     judicial branch of government. President Clinton should be 
     given latitude in naming executive branch appointees, people 
     to whom he will turn for advice. I should also note that his 
     nomination went through the Judiciary Committee--by no means 
     a rubberstamp--unanimously.
       The recent debate over Walter Dellinger is another instance 
     of people putting politics over substance. Yes, he has 
     advised and spoken out about high-profile constitutional 
     issues of the day. I would hope that an accomplished legal 
     scholar would not shrink away from public positions on 
     controversial issues, as it appears his opponents would 
     prefer. One can question Professor Dellinger's positions and 
     beliefs, but not his competence and legal abilities.

  This is the standard that is traditionally applied and it is the 
proper standard. While acknowledging that presidents are ordinarily 
entitled to deference in the selections for their cabinet, in the 
nomination of John Ashcroft critics argue that they are justified in 
applying a tougher standard for confirmation because of the standard 
that Senator Ashcroft allegedly used in evaluating Bill Lann Lee to 
head the Civil Rights Division of the Department of Justice. In 
considering Bill Lann Lee, Senator Ashcroft had said that Lee was ``an 
advocate who is willing to pursue an objective and to carry it with the 
kind of intensity that belongs to advocacy, but not with the kind of 
balance that belongs to administration . . .  his pursuit of specific 
objectives that are important to him limit his capacity to have the 
balanced view of making the judgments that will be necessary for the 
person who runs [the Civil Rights] Division.''
  Some Democrats say that because John Ashcroft applied this 
``standard'' to Bill Lann Lee, they are justified in applying the same 
standard to John Ashcroft. First, this is not a standard, but a 
conclusion about Lee based upon his record and testimony. Second, what 
Senator Ashcroft did on the Lee nomination was justified. Senator 
Ashcroft's concerns with Bill Lann Lee were based on Lee's long record 
of activism as a public interest lawyer. Republicans on the Judiciary 
Committee opposed Lee's nomination because they were justly concerned 
about his willingness to enforce the law as stated in Justice 
O'Connor's opinion for the Supreme Court in Adarand. In Adarand, the 
Supreme Court held that all governmental racial classifications were 
subject to strict scrutiny--that is, they must be narrowly tailored to 
serve a compelling government interest. Mr. Lee repeatedly stated the 
standard for racial preferences in less strict terms. He also found 
that only one of the 150 current federal programs involving racial 
classifications would be invalid under Adarand.
  Senator Ashcroft explained why he opposed Bill Lann Lee's 
nomination--he was concerned that Mr. Lee would not enforce the law. 
Senator Ashcroft testified: ``I joined with eight other Republicans on 
the Senate Judiciary Committee in opposing Bill Lee's nomination to be 
assistant attorney general because I had serious concerns about his 
willingness to enforce the Adarand decision . . . [Mr. Lee] was an 
excellent litigant, but I had concerns that he viewed the Adarand 
decision as an obstacle rather than as a way in which the law was 
defined. Adarand held that government programs that establish racial 
preferences based on race are subject to strict scrutiny, that is the 
highest level of scrutiny under the Supreme Court's equal protection 
clause. Adarand was a landmark decision, it was substantial, it was 
important. Mr. Lee did not indicate a clear willingness to enforce the 
law based on that decision.''
  Senator Ashcroft's concerns about Bill Lann Lee proved to be well-
founded. For example, in 1998, a federal judge, a Carter-appointee, 
assessed an unprecedented $1.8 million attorney fee award against the 
Civil Rights Division for a lawsuit against the City of Torrance, 
California. The judge found the suit ``frivolous, unreasonable and 
without foundation.'' The Division then turned around and filed a 
similar suit in Texas defending the constitutionality of contracting 
preferences on the basis of race and sex. Mr. Lee also continued to 
unlawfully coerce state and local governments to adopt race and sex 
preferences by threatening costly lawsuits based on dubious employment 
statistics.
  Moreover, under Mr. Lee, the Civil Rights Division continued the 
legal challenge to Proposition 209, a measure that prohibited 
government discrimination of Californians on the basis of race, gender, 
or national origin. These suits continued despite the fact that 
Proposition 209 has repeatedly been upheld by federal courts.
  It is also important to note that Bill Lann Lee had never held an 
executive position--or any position--in the government, whereas Senator 
Ashcroft served as attorney general of Missouri for eight years and as 
governor for eight years. He had distinguished tenures in both offices. 
In fact, he served as President of the National Association of 
Attorneys General and as Chairman of the National Governors Association 
and Chairman of the Education Commission of the States.
  In sum, Senator Ashcroft had serious reasons for concern with the Lee 
nomination, and his concern was borne out. In contrast, Senator 
Ashcroft has not waffled, redefined, or otherwise given reason to 
believe that he would not apply the law as it is. While Lee continued 
to aggressively litigate, John Ashcroft has shown no sign that he will 
continue to legislate. He did not do so as Missouri Attorney General, 
and he would not do so as U.S. Attorney General. In fact, John Ashcroft 
has repeatedly stated that he will enforce the law--yet this 
reassurance has failed to satisfy his critics. It's a Catch-22. He has, 
like every nominee, said he will uphold the law; and no one has ever 
questioned his integrity. But when John Ashcroft pledges to uphold the 
law, critics say that this is a ``new'' John Ashcroft, that he has 
flipped and is not credible. What they are saying is that he cannot 
satisfy them whatever he says. John Ashcroft knows the difference 
between being a legislator and being an executive. He is a man of 
integrity. He should be taken at his word. He cannot prove a negative--
that he won't fail to do his job. To hold him to that standard is to 
ask of him the impossible. Senators have the right to vote on any 
grounds they like; but they should not shroud their vote in a sham 
standard.
  An example of setting up an impossible standard is the view by some 
that, because Senator Ashcroft opposes abortion he cannot by definition 
enforce laws such as the Freedom of Access to Clinic Entrances law--the 
federal criminal statute that punishes those who commit acts of 
criminal intimidation or violence at abortion clinics. There is no 
logic to this position. Senator Ashcroft's opposition to abortion does 
not mean that he supports violations of the law prohibiting violence at 
clinics. Indeed, Senator Ashcroft supports the freedom of access to 
clinic entrances law and stated in his written answers that he ``will 
fully enforce FACE.'' This reinforces the view that he has previously 
expressed. For example, long before he had any idea he would ever be 
nominated for attorney general, Senator Ashcroft wrote that, regardless 
of his personal views on abortion, people should be able to enter 
abortion clinics safely: ``I believe people should be able to enter 
legal abortion clinics safely. I oppose unlawfully barricading or 
otherwise curtailing access to legal abortion

[[Page 1276]]

clinics. I condemn violence regarding this issue by individuals either 
in favor of or against abortion.'' Quoted from a May 15, 1996 letter to 
George Sorenson of St. Clair Shores, MI.
  Senator Ashcroft opposes criminal violence at abortion clinics and 
believes people who commit these acts of violence and intimidation 
should be punished. As Attorney General he'll do just that. It is 
irrational for critics to vote against him in the belief that merely 
because he opposes abortion he won't enforce the freedom of access to 
clinic entrances law.
  While he cannot prove a negative, he can point to past situations 
that belie the assertion that he won't properly apply the law. As 
Missouri Attorney General, John Ashcroft did not let his personal 
opinion on abortion cloud his legal analysis. For example, in Attorney 
General Opinion No. 5, issued on October 22, 1982, 1981 WL 154492, Mo. 
A.G., John Ashcroft opined that the Missouri Division of Health should 
not release to the public information from reports it maintains on the 
number of abortions performed by particular hospitals. He stated that 
the legislature made clear its intent that such reports ``shall be 
confidential and shall be used only for statistical purposes'' and even 
made failure to maintain confidentiality a misdemeanor. John Ashcroft 
opined that, for these reasons, and to protect the patient-physician 
privilege as recognized by Missouri law, access to the health data 
maintained by the Division was subject to review only by local, state 
or national public health officers.
  Additionally, in Attorney General Opinion No. 127, issued on 
September 23, 1980, 1980 WL 115450 Mo. A.G., John Ashcroft was asked to 
opine on whether a death certificate was required for all abortions, 
regardless of the age of the fetus. Despite his personal view that life 
begins at conception, he stated that Missouri statutes did not require 
any type of certificate if the fetus was 20 weeks or less. After 20 
weeks Missouri statutes specifically require a ``certificate of 
stillbirth'' regardless of whether death was by natural causes such as 
a miscarriage or an intentional act such as an abortion.
  It is also worth noting that Senator Ashcroft voted for Senator 
Schumer's amendment to the bankruptcy bill that made debts incurred as 
a result of abortion clinic violence non-dischargeable in bankruptcy.
  Finally, it is important to note that Senator Ashcroft has a strong 
record on women's issues, contrary to what some have charged. As 
governor, he signed a rape shield law that made inadmissible evidence 
of the victim's past sexual conduct. He also signed a law recognizing 
battered woman's syndrome as a defense in criminal cases. As Missouri 
attorney general, he took a broad view on allowing domestic violence 
funds to be used by non-profits to establish a network of ``safe 
homes.'' As Senator, John Ashcroft co-sponsored the Violence Against 
Women Act.
  Third, opponents express concern that Senator Ashcroft does not favor 
stricter gun control and previously opposed some measures that are now 
law. As a result, they conclude he will not enforce the gun control 
laws. Some people may be so pinched in their opinions that they could 
not distinguish between these two circumstances. Not John Ashcroft.
  As a former state attorney general and president of the National 
Association of Attorneys General, Senator Ashcroft knows how important 
it is to enforce gun laws vigorously. Unfortunately, the Clinton 
Justice Department has failed to make gun prosecutions a priority. 
Between 1992 and 1998, prosecutions of criminals who use a gun to 
commit a felony dropped nearly 50 percent from 7,045 to 3,765. Senator 
Ashcroft was one of the leaders in the Senate in directing the Justice 
Department to increase the prosecution of gun crimes. He sponsored 
legislation to authorize $50 million to hire additional federal 
prosecutors and law enforcement officers to increase the federal 
prosecution of criminals who use guns. Additionally, Senator Ashcroft 
sponsored legislation to require a five-year mandatory minimum prison 
sentence for federal gun crimes and for legislation to encourage 
schools to expel students who bring guns to school.
  Moreover, in the Senate, John Ashcroft had a strong record in 
fighting gun crimes. Last Congress, for example, Senator Ashcroft 
authored legislation to prohibit juveniles from possessing assault 
weapons and high-capacity ammunition clips. The Senate overwhelmingly 
passed the Ashcroft legislation in May 1999.
  Senator Ashcroft voted for legislation that prohibits any person 
convicted of even misdemeanor acts of domestic violence from possessing 
a firearm, for legislation to extend the Brady Act to prohibit persons 
who commit violent crimes as juveniles from possessing firearms, for 
the ``Gun-Free Schools Zone Act'' that prohibits the possession of a 
firearm in a school zone, and for legislation to require gun dealers to 
offer child safety locks and other gun safety devices for sale. Senator 
Ashcroft also voted for legislation to close the so-called ``gun show 
loophole.'' This bill required mandatory instant background checks for 
all firearm purchases at gun shows.
  Senator Ashcroft will uphold the nation's laws on firearms.
  Fourth, critics question Senator Ashcroft's record or civil rights. 
They often begin by raising the issue of desegregation litigation in 
Missouri. Senator Ashcroft did defend the state of Missouri as state 
attorney general in a long-running school-desegregation case. Every 
Missouri attorney general since 1980, including Jay Nixon, John 
Ashcroft's Democratic successor, backed the state's (and Ashcroft's) 
position. According to an article in National Review, the attorneys 
general in Missouri,

       fought the orders because they were unjust, saddling 
     innocent parties with exorbitant costs. They fought the 
     orders because they were unpopular, not only with their 
     victims, but with their beneficiaries. A leitmotif of the 
     desegregation was the persistent splintering of minority 
     groups from the ``class action'' litigants, whose one-size-
     fits-all remedies ran roughshod over the aspirations of 
     parents for their children. . . . In Missouri, 400 other 
     public-school districts suffered cutbacks so that a handful 
     of attorneys for civil-rights groups and teachers unions 
     could run uncontrolled clinical trials on a generation of 
     urban school kids, Indeed, non-urban school officials were 
     among the most persistent and vociferous foes of the 
     desegregation orders.

  The article continues: ``Twenty years of forced bussing, which 
Ashcroft opposed, left the Kansas City school district slightly less 
integrated than it was before. Twenty years of forced bussing, plus $3 
billion, left Kansas City and St. Louis with schools that consistently 
rate among the poorest in the nation in reading and math skills.'' To 
oppose a particular court order is not, as some critics have said, to 
``relentlessly oppose school desegregation.'' That characterization is 
unfair, even slanderous.
  Another point that critics often raise is the fact that Senator 
Ashcroft spoke at Bob Jones University. The controversy over the Bob 
Jones University speech has been put to rest. At his confirmation 
hearings, Senator Ashcroft made it clear that he ``reject[s] any racial 
intolerance or religious intolerance that has been associated with[,] 
or is associated with[,]'' Bob Jones University. Senator Ashcroft 
explained that ``[he] want[s] to make it very clear that [he] reject[s] 
racial and religious intolerance.'' He said he does not endorse any 
bigoted views by virtue of ``having made an appearance in any faith or 
any congregation.'' He said, for example, that he has visited churches 
which do not ``allow women in certain roles,'' and that he does not 
endorse that view, either.
  In the matter of the role faith plays in our public life, there 
appears to be a double standard. Senator Lieberman made numerous 
speeches connecting God to American government when he was running for 
Vice President last year. In fact, during a campaign speech in a church 
in Detroit, he said he hoped his candidacy ``will enable all people . . 
. to talk about their faith and about their religion, and I hope it 
will reinforce a belief that I feel as strongly as anything else--that 
there must be a place for faith in American public life.'' [Newsweek 9/
11/00] I share in that hope. Sadly, critics of John Ashcroft, who 
almost universally supported Senator Lieberman, apply a different

[[Page 1277]]

standard on this issue to John Ashcroft.
  During his career, Senator Ashcroft has compiled an outstanding 
record of protecting the rights of all people. As governor, Fortune 
named him one of the top 10 education governors in the nation. John 
Ashcroft was an inclusive governor, signing into law Missouri's first 
hate-crimes statute and state holiday that recognizes Dr. Martin Luther 
King's birthday. He nominated the first woman to the Missouri Supreme 
Court.
  John Ashcroft's work on behalf of minorities earned him a 
commendation from the Mound City Association, an African-American Bar 
Association of St. Louis, and a campaign endorsement from the Limelight 
Newspaper, the largest African-American newspaper in St. Louis.
  In the U.S. Senate, John Ashcroft convened the first and only Senate 
hearing on racial profiling. He secured more funding to combat violence 
against women, voted to prohibit those who have been convicted of 
domestic violence from owning a gun, and supported the crime victims' 
rights amendment and Violence Against Women Act.
  John Ashcroft has been deeply committed to promoting equal access to 
government positions during his tenure as both Attorney General and 
Governor of Missouri. Witnesses testifying at the hearing made this 
commitment clear.
  Mr. Jerry Hunter, former labor secretary of Missouri, testified that, 
``Like President-elect George W. Bush, Senator Ashcroft followed a 
policy of affirmative access and inclusiveness during his service to 
the state of Missouri as attorney general, his two terms as governor, 
and his one term in the United States Senate. During the eight years 
that Senator Ashcroft was attorney general for the state of Missouri, 
he recruited and hired minority lawyers. During his tenure as governor, 
he appointed blacks to numerous boards and commissions . . . [B]ut I 
would say to you on a personal note, Senator Ashcroft went out of his 
way to find African-Americans to consider for appointments.''
  Mr. Hunter further elaborated that,

       When Governor Ashcroft's term ended in January of 1993, he 
     had appointed more African-Americans to state court 
     judgeships than any previous governor in the history of the 
     state of Missouri. Governor Ashcroft was also bipartisan in 
     his appointment of state court judges. He appointed 
     Republicans, Democrats and independents. One of Governor 
     Ashcroft's black appointees in St. Louis was appointed, 
     notwithstanding the fact that he was not a Republican and 
     that he was on a panel with a well-known white Republican. Of 
     the nine panels of nominees for state court judgeships, which 
     included at least one African-American, Governor Ashcroft 
     appointed eight black judges from those panels.

  Congressman J.C. Watts testified:

       I've worked with [John Ashcroft] on legislation concerning 
     poor communities, under-served communities. I have always 
     found John Ashcroft to have nothing but the utmost respect 
     and dignity for one's skin color. I heard John say yesterday 
     in some of his testimony that his faith requires him to 
     respect one's skin color. And I think that's the way it 
     should be . . . [I]n my dealings with John, I have had 
     nothing but the utmost respect for him when it comes to his 
     dealings with people of different skin color.

  Judge David Mason, who worked with Ashcroft in the Missouri Attorney 
General's office stated,

       As time went on, I begin to get a real feel for this man 
     and where his heart is. When the subject of Martin Luther 
     King Day came up, I was there. And I recall that he issued 
     the executive order to establish the first King Day, rather 
     than wait for the legislature to do it. Because, as you may 
     recall, some of you, when Congress passed the holiday, they 
     passed it at a time when the Missouri legislature may not 
     have been able to have the first holiday contemporaneously 
     with it. So he passed a King holiday by executive order. He 
     said, in doing so, he wanted his children to grow up in a 
     state that observed someone like Martin Luther King.

  Bob Woodson of the National Center for Neighborhood Enterprise uses 
faith-based organizations to help troubled young people turn their 
lives around. Mr. Woodson testified:

       Senator John Ashcroft is the only person who, from the time 
     he came into this body, reached out to us. He's on the board 
     of Teen Challenge. He's raised money for them. He sponsored a 
     charitable choice legislation that will stop the government 
     from trying to close them down because they don't have 
     trained professionals as drug counselors. We have an 80 
     percent success rate of these faith-based organizations with 
     a $60-a-day cost, when the conventional, therapeutically 
     secular program cost $600 a day with a 6 to 10 percent 
     success rate. Senator Ashcroft has gone with us. He has 
     fought with us. And this legislation would help us. As a 
     consequence, day before yesterday, 150 black and Hispanic 
     transformed drug addicts got on buses from all over this 
     nation and came here to support him. Fifty of them came from 
     Victory Temple throughout the state of Texas, spent two days 
     on a Greyhound bus at their own expense to come here to voice 
     strong support for Senator Ashcroft.

  Kay James of the Heritage Foundation testified:

       The system our founders designed, of course, is famous for 
     its many checks and balances from which no public official is 
     immune. Nevertheless, the charge is still made that these are 
     insufficient to deal with a man of religious conviction. As 
     such, a person cannot be trusted to faithfully execute the 
     laws, especially those which may conflict with his deeply 
     held belief. I reject such religious profiling. On this 
     matter, let me attempt to reassure John Ashcroft's opponents 
     by enlisting the very thing they profess to fear most: his 
     religious faith.

  Fifth, opponents claim that Senator Ashcroft has a poor record on the 
nominations of President Clinton's nominations to the federal bench. 
This somehow justifies voting against Ashcroft under a standard of 
``what's good for the goose is good for the gander.''
  Apart from the intellectual contradiction in such a position, Senator 
Ashcroft's record contradicts this assertion. He supported 218 out of 
230 Clinton judicial nominees, or, put another way, Senator Ashcroft 
supported more than 94 percent of President Clinton's nominees, many of 
whom were women and minorities. This is hardly a record of obstruction. 
Indeed, Senator Ashcroft supported 26 of the 27 African-American judges 
nominated by President Clinton and considered by the Senate. All other 
Republican senators also opposed the only one Ashcroft opposed.
  That nominee was Ronnie White--nominated to the federal district 
court bench. Senator Ashcroft, along with the majority of the U.S. 
Senate, had grave concerns about White's record in Missouri death-
penalty cases. White wasn't just the state's leading dissenter in 
death-penalty cases, he even went so far as to try (unsuccessfully) to 
overturn the conviction of a man who confessed to brutally murdering 
four people. White was the only dissenter in that case, which caused 
his nomination to be opposed by numerous law-enforcement groups and 
officers, including the National Sheriff's Association, the Missouri 
Federation of Police Chiefs, the Mercer County Prosecuting Attorney's 
office, and numerous individual Missouri sheriffs and police 
departments.
  Senator Ashcroft took very seriously his duty to evaluate Judge 
White's record. He reluctantly concluded White had a propensity to work 
against the imposition of the death penalty even when called for by 
law. As Senator Ashcroft testified,

       Judges at the federal level are appointed for life. They 
     frequently have power that literally would allow them to 
     overrule the entire Supreme Court of the state of Missouri. 
     If a person has been convicted in the state of Missouri, but 
     on habeas corpus files a petition with a U.S. district court, 
     it's within the power of that single U.S. district court 
     judge to set aside the judgment of the entire Supreme Court 
     of the State of Missouri. So that my seriousness with which I 
     addressed these issues is substantial. I did characterize 
     Judge White's record as being pro-criminal. I did not 
     derogate his background.

  Judge White argued in dissent in the Johnson case, where the 
defendant was convicted of killing three law enforcement officers and 
the wife of a sheriff, that the defendant received ineffective 
assistance of counsel. Congressman Hulshof, the prosecutor in that 
case, rebutted that argument quite effectively. Congressman Hulshof 
testified, ``The points I'd like to raise briefly about the quality of 
James Johnson's representation is this: He hired counsel of his own 
choosing. He picked from our area in mid-Missouri what we've referred 
to as--as I referred to as a dream team.'' And the court later ruled 
that the counsel was effective.
  Sheriff Kenny Jones, whose wife and colleagues were killed by 
Johnson, testified,


[[Page 1278]]

       Be assured that Senator Ashcroft had no other reason that I 
     know about to oppose Judge White except that I asked him to. 
     I opposed Judge White's nomination to the federal bench, and 
     I asked Senator Ashcroft to join me because of Judge White's 
     opinion on a death penalty case. . . . In his opinion, Judge 
     White urged that Johnson be given a second chance at freedom. 
     I cannot understand his reasoning. I know that the four 
     people Johnson killed were not given a second chance.

  Some Democrats claim that Ronnie White was treated shabbily. They say 
the treatment was shabby because it was embarrassing for White to be 
suffer defeat on the Senate floor and because of alleged misstatements 
by Senator Ashcroft about White's record. In response to the first 
point, it must be said that throughout the last Congress, Democrats 
constantly stressed that they wanted their nominees brought to the 
floor for a vote. In fact, on June 29, 1999, more than three months 
before the nomination came to the floor, Senator Leahy took to the 
floor to say that Ronnie White ``should be allowed a vote, up or 
down.'' He continued: ``Senators can stand up and say they will vote 
for or against him, but let this man have a vote.'' Well, this is what 
can happen when a nominee is brought to the floor--the nomination can 
be defeated. If Democrats are concerned that a nominee will be 
embarrassed if the nominee loses, then Democrats must be careful when 
they clamor for a vote. I personally expressed to Judge White my regret 
that his nomination was considered by the full Senate in a way that 
ended in defeat.
  A second point: when Democrats complain that there were misstatements 
about Ronnie White's record, why didn't they correct the record? Every 
senator, of course, has the right to set the record straight if there 
is an error. Further, on this matter there have been misstatements not 
by Senator Ashcroft but about Senator Ashcroft's floor statement. I 
want to make one point very clear: Senator Ashcroft did not accuse 
Ronnie White of being pro-criminal, rather he said that ``Judge White's 
opinions have been, and, if confirmed, his opinions on the Federal 
bench will continue to be pro-criminal and activist, with a slant 
toward criminals and defendants against prosecutors and the culture in 
terms of maintaining order . . .'' This statement is in no way a smear 
of Ronnie White. It is a reasonable conclusion after reviewing Ronnie 
White's dissents in a number of cases, most notably the Johnson case in 
which, as the lone dissenter, Ronnie White would have let a confessed 
murderer go free for three reasons. First, Judge White's dissent 
concluded that, as noted above, the defendant had ineffective 
assistance of counsel--yet the case was so overwhelming that Clarence 
Darrow could not have saved the defendant. Second, White's dissent 
displayed a pro-criminal bent in stating that the defendant's 
``previously law-abiding life'' could warrant reducing the sentence of 
this quadruple murderer to life imprisonment. Third, White's dissent 
demonstrated a willingness to disregard the law, specifically, as the 
definition of legal insanity. White wrote: ``While Mr. Johnson may not, 
as the jury found, have met the legal definition of insanity, whatever 
drove Mr. Johnson to go from being a law-abiding citizen to being a 
multiple killer was certainly something akin to madness.'' A judge must 
enforce the law, not make new law by the seat of his pants.
  As I stated above--and it merits repeating because Senator Ashcroft's 
critics have distorted his record--Senator Ashcroft supported 218 out 
of 230 Clinton judicial nominees. Put another way, Senator Ashcroft 
supported more than 94 percent of President Clinton's nominees, many of 
whom were women and minorities. Indeed, Senator Ashcroft supported 26 
of the 27 African-American judges nominated by President Clinton and 
considered by the Senate. This is hardly a record of obstruction.
  Like many people who watched the recent confirmation hearings of John 
Ashcroft for U.S. Attorney General, I too failed to recognize the man 
as characterized by his opponents. I've known John Ashcroft for six 
years in the Senate.
  As I stated at the beginning of my remarks, Senator John Ashcroft is 
a man who knows the law. He was educated at Yale and the prestigious 
University of Chicago law school. While in the U.S. Senate, he served 
on the Senate Judiciary Committee and chaired its Subcommittee on the 
Constitution. Furthermore, Senator Ashcroft is the most experienced 
candidate for U.S. Attorney General in American history. He served as 
Missouri's attorney general, its governor, and one of its U.S. 
senators.
  During his career, Senator Ashcroft has compiled an outstanding 
record of protecting the rights of all people. He will continue to do 
so as the United States Attorney General. I strongly support his 
nomination and encourage all my colleagues to do so as well.
  Mr. TORRICELLI. Mr. President, I have always believed that Presidents 
are entitled to a degree of deference in their cabinet nominees. And 
so, while this made it difficult I have nonetheless informed the 
administration that I cannot support Senator John Ashcroft's nomination 
to be attorney general.
  Senator Ashcroft has been a dedicated public servant and I say that 
even though we have not found common ground on the issues. The range of 
issues we have disagreed on has been broad and they have centered on 
some of the most important laws of our land. No person should be forced 
to choose between their fundamental beliefs and values and enforcing 
our Nation's laws. For those who cherish civil rights laws, the freedom 
of choice and handgun control the stakes are simply too high to expect 
a cabinet secretary to choose between passionately held beliefs and 
enforcing not only the letter but the spirit of the law.
  I also have specific concerns about New Jersey. It is not enough just 
to be opposed to racial profiling. The scars this issue has left on my 
state are too deep and require the strongest possible commitment if we 
are ever to heal. Further, it will take a concerted effort to enforce a 
range of civil rights laws from hate crimes to tolerance. It requires 
the will of the Attorney General, the full force of that office.
  I said some very positive things about John Ashcroft at the time he 
was nominated. I continue to hope that it is possible to disagree and 
to disagree strongly without demonizing. I also hope he will always 
reflect on the concerns raised during the confirmation process.
  Mr. SPECTER. Mr. President, I have sought recognition to voice my 
support for the nomination of John Ashcroft, of Missouri, to be U.S. 
Attorney General.
  I think it is important to focus on the standard for a Cabinet 
nomination, which is fundamentally different from a judicial 
appointment, which is a lifetime appointment, and focus on the latitude 
which is customarily accorded the President of the United States in 
making a selection on a Cabinet nominee.
  I do support former Senator Ashcroft for attorney general. And I do 
so, in substantial measure, because of the record he has compiled as an 
elected official in Missouri and because of my personal knowledge of 
him. He was twice elected attorney general of Missouri, he was twice 
elected governor of Missouri, he was elected Senator of Missouri. And 
Missouri is a moderate state, I think very much like my own state, 
Pennsylvania: two big cities, a lot of farmland. The characteristics of 
the electorate in Missouri, who have elected him five times to major 
offices, I think, speaks well of Senator Ashcroft in rejecting the 
notion that he is an extremist.
  The John Ashcroft whom I have known for six years in the United 
States Senate is not an extremist. He sat a couple of seats down from 
me on the Judiciary Committee. Although we did not agree on many items, 
I always felt he was exercising his honest judgement.
  He was a candidate for President, and it may be that in the course of 
that candidacy, expressed some views, as candidates sometimes do, which 
try to appeal to a constituency. But from what I have seen, on this 
committee and in the Senate, he is not an extremist.

[[Page 1279]]

  He and I had a very sharp disagreement on a judicial nominee, 
Philadelphia Common Pleas Judge Massiah-Jackson. And she was, in 
effect, rejected by the committee, and withdrew her nomination. She was 
challenged as being soft on crime because of her record on sentences. 
At the end of a very long, difficult and contentious proceeding, 
including a hearing before the Judiciary Committee, as I say, she did 
withdraw. But at the end of the process, it was my view that John 
Ashcroft had expressed his own judgement about it which differed from 
mine. I bring in the Judge Massiah-Jackson case because of some 
similarities which it has to the case involving Missouri Supreme Court 
Justice White.
  I said in the hearing that I thought that we did not accord Judge 
White the kind of consideration that should have been accorded, because 
our practices are to rely principally on staff, the ABA recommendation, 
the FBI investigation, without individual Senators paying as much 
attention to the district court nominees as we might. I intend on 
proposing a rule change that in the event someone is going to speak 
adversely about a nominee, that there be an opportunity for the nominee 
to respond, and the committee should focus specifically on any charges 
which are brought.
  But I do think that, at the conclusion, Senator Ashcroft expressed 
his own honest views. I think it is important to note that when Judge 
White appeared before the committee, he did not ask that Senator 
Ashcroft be rejected, he raised the question as to whether Senator 
Ashcroft had the qualities to be an attorney general and left it up to 
the committee to decide.
  Senator Ashcroft made a number of important commitments to the 
committee. We questioned him at great length on the difference between 
a legislator and a member of the executive branch who enforces the law. 
He said categorically that he would not choose to change Roe v. Wade 
but would be bound to enforce the law as it stood. He spoke 
emphatically about his commitment to enforce access to abortion 
clinics. And it was worth noting that, while in the Senate, on a vote 
on whether someone who had a judgment against them for damaging an 
abortion clinic and there was one case where there was an enormous 
judgment in excess of $100 million that the individuals' debt ought not 
to be dischargeable in bankruptcy, which I think is an indication as to 
his sentiments on that important subject.
  Senator Ashcroft also made very firm commitments on recognizing the 
distinction between church and state and committed that, to the extent 
he was involved, there would be no litmus test on the selection of 
Supreme Court nominees.
  There were challenges made to what Senator Ashcroft had done as 
attorney general on the segregation cases. Former Senator Danforth 
appeared during the nomination hearing and spoke about his evaluation 
of John Ashcroft being a vigorous advocate.
  There was a question raised as to whether as state attorney general 
of Missouri Senator Ashcroft used the litigation process 
inappropriately. He was not held in contempt. He was not sanctioned 
under the federal rules, which he could have been. So on the basis of 
that issue and the other objections which have been raised, it seems to 
me that this is a nomination and a nominee where we ought to accord the 
traditional latitude to the President of the United States. I intend to 
vote for Senator Ashcroft's nomination to be Attorney General of the 
United States.
  Mrs. BOXER. Mr. President, I would like to respond to a letter my 
colleague Senator Sessions inserted into the Record last evening from 
the editor of Southern Partisan magazine. In that letter, the editor 
claims that his magazine did not sell a t-shirt celebrating the 
assassination of President Abraham Lincoln. In my floor remarks 
yesterday, I stated that the magazine did in fact sell this offensive 
shirt, and showed my colleagues a reproduction of the actual shirt.
  In particular, the editor stated that this ``tasteless item has never 
been advertised or sold on the pages of our magazine.'' The editor goes 
on to say that a part-time staff member complied a catalog of southern 
items, including the offensive Lincoln t-shirt, and that the brochure 
advertising those items were mailed ``without careful review by our 
editors.''
  I would like to insert into the Record a copy of a 1995 letter from 
Southern Partisan, which is on the Southern Partisan magazine editor-
in-chief's letterhead, which clearly indicates that the magazine did in 
fact sell this offensive shirt. This letter states in relevant part: 
``Due to the surprising demand for our anti-Lincoln T-shirt, our stock 
has been reduced to odd sizes. If the enclosed shirt will not suffice, 
we will be glad to refund your money or immediately ship you another 
equally militant shirt from our catalog [emphasis added].''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            Southern Partisan,

                                   Columbia, SC, December 3, 1995.

       Dear Friend: Due to a surprising demand for our anti-
     Lincoln T-shirt, our stock has been reduced to odd sizes. If 
     the enclosed shirt will not suffice, we will be glad to 
     refund your money or immediately ship you another equally 
     militant shirt from our catalog.
           Thank you,
                                  Southern Partisan General Store.

  Mr. McCONNELL. Mr. President, America is indeed fortunate to have a 
distinguished public servant of the caliber of John Ashcroft who is 
willing to serve his country again, this time as Attorney General of 
the United States. John is certainly the most qualified Attorney 
General nominee of this century and perhaps in the Republic's history. 
John has impressive academic credentials and a unique blend of legal, 
executive, and legislative experience. I am confident that his 
qualifications, combined with his keen sense of duty and unshakeable 
integrity, will enable Senator Ashcroft to be one of the finest 
Attorneys General in the nation's history and to restore luster to a 
tarnished agency.
  John is an honors graduate of Yale University. He received his law 
degree from the University of Chicago, one of the country's outstanding 
law schools. After graduating from law school, John returned home to 
Missouri where he practiced law and joined the faculty of what is now 
Southwest Missouri State University, teaching business law for five 
years. Following that, our colleague, then-Missouri Governor Kit Bond, 
appointed John to serve the citizens of Missouri as State Auditor.
  John continued his legal career as an assistant Attorney General on 
the staff of our former colleague, then-Missouri Attorney General John 
Danforth. In this capacity, John Ashcroft gained invaluable first-hand 
knowledge of the day-to-day operation of an Attorney General's 
Department. This knowledge would serve him well when he became 
Missouri's Attorney General in 1976. John, in fact, served two terms as 
Missouri's highest law enforcement officer, and as a result of his 
eight year tenure in that office, obtained the managerial and executive 
experience needed to effectively run an Attorney General's Office. 
Under John's leadership, the Missouri Attorney General's Office earned 
a reputation for strictly enforcing the law, including laws with which 
Attorney General Ashcroft disagreed. John Ashcroft understood well his 
role as Missouri's Attorney General; he was acutely aware that 
Missourians twice-elected him to enforce the laws, and as his 
confirmation hearing before the Judiciary Committee clearly showed, 
John assiduously did so.
  Because of his success as Attorney General, Missourians elected John 
their Governor in 1984 and again in 1988. To illustrate the utter 
ridiculousness of one of the most scurrilous charges leveled at John--
that of being ``racially insensitive,'' as some are euphemistically 
saying--it must be noted that as Governor, John repeatedly reached out 
to black Americans. For example, he appointed the first black woman to 
the Western Missouri Court of Appeals; he established the state's first 
and only historic site honoring a black American, composer Scott 
Joplin; he led the fight to save Lincoln College, founded by black 
soldiers; and last month Missourians celebrated the birthday of Dr. 
Martin Luther King, Jr. because John Ashcroft

[[Page 1280]]

signed that proposed holiday law. John also helped enact Missouri's 
first hate crimes legislation. In short, if John Ashcroft is ``racially 
insensitive,'' he certainly has a strange way of showing it.
  After completing his second term as Governor, John began a career of 
national public service as Missouri's junior Senator in the United 
States Senate. As a member of this body, John broadened his legal 
experience by serving on the Judiciary Committee and by chairing its 
Subcommittee on the Constitution. He also continued to fight for the 
rights of all Americans, and was dedicated to the principle of equal 
treatment under the law. For example, John sponsored legislation 
providing equal protection for victims of crime, and he convened the 
first hearing on racial profiling, in which he stated for the record 
that racial profiling is unconstitutional. And as he did as Missouri 
Governor, John continued to support black judicial nominees, voting for 
26 of 27 African-American nominees to the federal bench.
  As impressive as John's qualifications are, what may be most 
impressive about him is his honor and integrity. I had the opportunity 
to witness first-hand a test of his character in my capacity as 
Chairman of the National Republican Senatorial Committee and Chairman 
of the Committee on Rules and Administration, which would have had 
jurisdiction over an election contest. As we all know, John lost a 
heartbreakingly close reelection bid last fall under unorthodox, and 
some would say, unlawful circumstances. After the election, my office 
was flooded with phone calls and petitions urging John to challenge the 
election, and lawyers lined-up to offer their services. Some argued 
that John should bring a constitutional challenge on the ground that it 
was patently unconstitutional to elect a deceased person to the United 
States Senate. Others wanted him to bring an election contest because 
of improprieties in the voting itself, such as the fact that heavily-
Democrat precincts remained open after hours.
  Either of these challenges may very well have proved successful, and 
John might still be a member of this body. But at a minimum, a 
challenge would have put Missourians--and the entire Senate--through a 
divisive ordeal, and it might well have left the good people of 
Missouri without full representation in the United States Senate. 
Always the public servant, this is something that John Ashcroft would 
not do. As particularly painful as this loss was, John never once 
considered challenging the election; he would not put his fellow 
Missourians through what the nation had to endure in Florida for 
thirty-five days. Moreover, he made it abundantly clear, both in public 
and in private, that he did not want others to do so either. Rather 
than cling to power in the hope of an eventual victory, John graciously 
conceded the election and wished our new colleague well.
  This selfless action was that of a statesman, and it reminds me of 
the famous words of another statesman, Henry Clay, who said: ``I had 
rather be right than be President.'' John Ashcroft's response to this 
truly unique and difficult loss in November was essentially: ``I had 
rather be right than be Senator.'' And it is because of principled 
actions such as this that John is one of the most respected former 
members of this body. And because Democratic members know of John's 
character and integrity, they speak with confidence about the 
outstanding job he would do as Attorney General. For example, our 
former colleague, Senator Moynihan, stated that John ``will be a superb 
Attorney General.'' And our current colleague, Senator Torricelli, who 
knew of John's skill and character from their service together on the 
Judiciary Committee, stated that ``While I have obvious philosophical 
differences with John, his ability and integrity simply can't be 
questioned.''
  Now despite John's experience and dedication to duty, I have heard a 
lot of people say that he is unfit to be Attorney General because of: 
(1) his strong and abiding faith in God; (2) his firm belief in law and 
order; and (3) his commitment to the Constitution, even when that 
commitment is at odds with those unbiased ``legal scholars'' on the 
editorial board of the New York Times. Far from disqualifying him from 
public service, however, these qualities only reinforce my belief that 
he will ably serve as the nation's chief law enforcement officer. The 
Senate would serve the nation by confirming him as Attorney General, 
and I urge it to do so.
  Ms. SNOWE. Mr. President, I rise to support the confirmation of 
President Bush's nominee for Attorney General of the United States, 
former Senator John Ashcroft.
  After serving in this body with John Ashcroft for the last six years, 
I know him as a man of integrity and compassion. That is not to say we 
always agree--we have sparred passionately on issues--not the least of 
which was abortion rights. Clearly, though, John is a well-qualified 
nominee, as evidenced by the fact that of the 67 persons who have 
served as United States Attorney General in our history, only John 
Ashcroft has served as state attorney general, governor, and U.S. 
Senator serving on the Judiciary Committee.
  In fact, John Ashcroft was State Attorney General and Governor for 
two terms each. He was the head of the National Association of 
Attorneys General and head of the National Governors' Association. In 
these roles, John has a solid record of working with and protecting the 
rights of all people.
  That John and I hold differing views is certainly not unusual in this 
body of one hundred individuals--all with strongly held beliefs, all 
with disparate backgrounds, and all representing different 
constituencies with distinct concerns and varying priorities. I 
respected his right to hold his beliefs, just as he has always 
respected my right to the beliefs that I have often expressed in this 
very chamber. That is the nature of our representative democracy, and 
certainly the nature of the Senate as the embodiment of the union of 
states.
  Likewise, President Bush, as the duly-elected Chief Executive of the 
United States, is accorded the privilege of nominating those men and 
women he deems most fit to administer the policies and duties with 
which he has been entrusted by the people of this Nation.
  I did not agree with all of the personal viewpoints of President 
Clinton's various nominees--far from it. Instead, I attempted to judge 
the fitness of each nominee based on their individual record, 
experience, testimony, and integrity. Recognizing that President 
Clinton's nominees would not surprisingly hold different beliefs than 
my own in some instances, I asked myself whether or not those beliefs 
would, in and of themselves, preclude the nominee from executing his or 
her duties to the extent that they would be unfit to serve.
  That is the same question I ask myself concerning the nomination of 
Senator Ashcroft, keeping in mind that I do not believe that a 
nominee's ideological philosophy should be a determining factor in 
their ability to serve. As the Portland Press Herald noted in their 
January 17 editorial ``Senators have the power of ``advice and 
consent'' over such nominees, and they have the power to make judgments 
based on whatever criteria they choose. Still, failing to pass an 
ideological litmus test is not a sufficient reason to decline to 
nominate someone to an appointive post, barring hard evidence of 
unsuitability or criminal misconduct. . .''
  And what about the power of ``advice and consent'' given to the 
Senate under Article II, Section 2 of the Constitution? Alexander 
Hamilton in summing up this power noted ``To what purpose then require 
the co-operation of the Senate? I answer, that the necessity of their 
concurrence would have a powerful, though, in general, a silent 
operation. It would be an excellent check upon a spirit of favoritism 
in the President, and would tend greatly to prevent the appointment of 
unfit characters from State prejudice, from family connection, from 
personal attachment, or from a view to popularity.''
  And if you review history you will find that this ``check'' as it 
were has

[[Page 1281]]

been used judiciously. The fact is that since 1789--212 years--only 19 
cabinet nominees have failed to be confirmed. Clearly the Senate must 
have differed with the President on his nominees more than 19 times 
over the past 212 years, yet with very few exceptions has deferred to 
the President, who will ultimately be held responsible for his choice.
  In short, our use of the ``advice and consent'' power must achieve a 
careful balance between our responsibility to check presidential abuse 
at one end of the scale, and a respect for the president's 
constitutional prerogative on the other. It is a question of degrees 
and a matter of judgement left to us to weigh with due diligence and 
care.
  In the case of John Ashcroft's nomination to be Attorney General, I 
would argue that John Ashcroft deserves to be taken at his word with 
regard to what he has said at his confirmation hearings. He has said, 
clearly and unequivocally, that he will uphold the laws of the United 
States of America.
  During the confirmation hearings, John Ashcroft was 
characteristically straightforward when he said, ``I understand that 
being attorney general means enforcing the laws as they are written, 
not enforcing my personal preferences. It means advancing the national 
interest, not advocating my personal interest.''
  During a private meeting in my office, John echoed that pledge and 
personally assured me that he would carry out this and other laws on 
behalf of every American. That includes Roe v. Wade. That includes 
ensuring access to abortion clinics. And I take John Ashcroft at his 
word.
  He also stated during the hearings that, ``The attorney general must 
recognize this: The language of justice is not the reality of justice 
for all Americans . . . No American should have the door to employment 
or educational opportunity slammed shut because of gender or race. No 
American should fear being threatened or coerced in seeking 
constitutionally protected health services.'' I commend him for this 
sentiment and, again, I take John Ashcroft at his word.
  Importantly, John has carried himself with distinction in carrying 
out the laws in other elected positions, notably during his terms as 
governor and Attorney General of Missouri. As he told the Judiciary 
Committee, ``I take pride in my record of having vigorously enforced 
the civil rights laws as attorney general and governor,'' and I take 
John Ashcroft at his word.
  Moreover, not only John's words but his deeds support his strong 
commitment to civil rights. As Governor, John signed Missouri's first 
hate crimes statute and legislation creating the Martin Luther King 
Holiday. He established Missouri's first and only historic site 
honoring an African-American, and led the fight to save an independent 
Lincoln University, founded by African-American soldiers. Last year, he 
convened the only Senate hearing on the subject of racial profiling, 
and opened the hearing by unequivocally condemning racial profiling, 
calling it ``an unconstitutional practice.''
  As Missouri Attorney General, John Ashcroft enforced laws that 
differed from his own beliefs in a number of areas, including abortion 
and, more specifically, the confidentiality of hospital records on the 
number of abortions performed; and church and state issues, such as the 
availability of funds for private and religious schools and the 
distribution of religious materials in public schools.
  As Governor, John was presented on nine occasions with three-
candidate panels for judicial appointments that contained one or more 
minority candidates. As he told the Committee in his nomination 
hearing, ``I took special care to expand racial and gender diversity in 
Missouri's courts,'' and the facts bear that out.
  In every instance, he either appointed a minority to the post or 
appointed the minority candidates on the panel to judicial positions at 
a later date. He appointed more African-American judges to the bench 
than any governor in Missouri history.
  He appointed the first African-American on the Western District Court 
of Appeals. He appointed the first African-American woman to the St. 
Louis County Circuit Court.
  He appointed the first two women to the Missouri Courts of Appeals. 
And he appointed the first woman to the Missouri Supreme Court--the 
only woman ever to have been appointed to that court.
  Similarly, in the Senate, John supported every single African 
American judicial nominee confirmed by the Senate--26 separate 
nominations in all. But despite this overwhelming record of supporting 
minority judicial candidates, he has been attacked for opposing the 
nomination of one African American Judge, Ronnie White--a nominee who 
was opposed by 54 members of the Senate, including me.
  Judge White's nomination was rejected by the Senate not because of 
his race, but because of his opinions in some death penalty cases. It 
bears noting that not only was Judge White vigorously opposed by the 
National Sheriffs' Association, the Missouri Federation of Police 
Chiefs, and numerous other Missouri and national law enforcement 
groups, but he also stood as the lone dissenter in a death penalty case 
involving the brutal slaying of three law enforcement officers in 
Missouri and the wife of a sheriff who was killed after she was shot 
five times, in the family's own home, as she was holding a church 
function.
  It is critical to note that in 1998, using similar criteria, I 
opposed the nomination of Judge Ann Aiken to the federal bench because 
of her decision to give probation instead of jail time to a man who 
raped a five-year-old child.
  And what has Judge White said about John Ashcroft's motivations? He 
has said, and I quote, ``. . . let me say, I don't think Senator 
Ashcroft is a racist, and I wouldn't attempt to comment on what's in 
his mind or what's in his heart.''
  Finally, I want to emphasize that there were a number of critical 
policy areas on which Senator Ashcroft and I did agree during our 
tenure together in the Senate. They deserve mention considering the 
criticism that has been leveled against this nominee, and the relevance 
of the issues to the post of Attorney General.
  John co-sponsored the benchmark Violence Against Women Act, and 
helped author the provisions to prevent Internet stalking included in 
the legislation. He supported minimum hospital stays for women who give 
birth, and a measure to permit breast and cervical cancer coverage by 
Medicaid for low-income women.
  He supported a provision urging that the ``Attorney General should 
fully enforce the law and protect persons seeking to provide or obtain, 
or assist in providing or obtaining, reproductive health services from 
violent attack,'' and voted to make civil judgments for those who 
commit violent acts at abortion clinics non-dischargeable in 
bankruptcy--an amendment that I cosponsored.
  This is the John Ashcroft I know--a man of ability, remarkable 
experience in public service, proven integrity, and unimpeachable 
professionalism. As Attorney General, he will be charged not with 
writing new laws--as he ably did as a Senator--or interpreting laws--as 
a judge would do. Instead, he will be given responsibility as our 
nation's top law enforcement official for executing the laws of the 
United States on behalf of President Bush and the American people. I am 
confident he will enforce the laws to protect all Americans equally, 
regardless of his personal views, and I will vote to confirm John 
Ashcroft as Attorney General of the United States.
  Mr. FEINGOLD. Mr. President, as my colleagues know, I shall vote to 
confirm Senator Ashcroft. I discussed the reasons for my doing so in my 
statement before the Judiciary Committee. At that meeting, I said:

       My colleagues, when we vote today, I'm going to do what I 
     sincerely believe to be the right thing to do: vote for 
     confirmation of John Ashcroft as Attorney General of the 
     United States. For many of my colleagues, friends, 
     supporters, and constituents, this is not easy to understand. 
     And some see it as terribly wrong. After all, my voting 
     record and that of John Ashcroft could hardly be more 
     different, and there is no question that the opposition has 
     raised significant and serious concerns about the 
     appropriateness of this nomination.

[[Page 1282]]

       Let me begin by noting a few positive aspects of former 
     Senator John Ashcroft's positions and responses to questions 
     at his hearing on two issues I care deeply about.
       On racial profiling, as I said at the outset of the hearing 
     on Sen. Ashcroft's nomination, during the last Congress I 
     found him more receptive to my concerns about the issue than 
     virtually anyone on the Republican side of the aisle. He and 
     his staff not only permitted but assisted in a significant 
     and powerful hearing on racial profiling in the Constitution 
     Subcommittee. Although he did not ultimately cosponsor our 
     traffic stop statistics bill, he made constructive 
     suggestions about the bill, and his interest in addressing 
     this terrible problem I believe was sincere.
       And that sincerity was underlined in recent testimony 
     before this Committee. He stated that he believes racial 
     profiling is an unconstitutional practice and that he will 
     make it a priority of the civil rights division of the 
     Department to eradicate it. I believe him and I look forward 
     to working with him on this if he is confirmed.
       I have also expressed great concern that whoever assumes 
     the role of Attorney General of the United States needs to 
     understand and appreciate a need for fairness in the 
     administration of the severest punishment our Federal 
     government can mete out, the death penalty. I understand that 
     both President Bush and Senator Ashcroft support the use of 
     capital punishment. But I was relatively pleased with Senator 
     Ashcroft's responses to my questions, both at the hearing and 
     in written form, concerning the federal death penalty system. 
     I was particularly pleased to hear his commitment to 
     continuing the Justice Department review of racial and 
     regional disparities in the federal system, a review that was 
     ordered by President Clinton and is only in its initial 
     stages. I plan to hold him to his pledge and urge him 
     carefully to consider the results of this review and address 
     the disparities before proceeding with any federal 
     executions.
       Having noted at least those areas where I'm hopeful about 
     working together with John Ashcroft, this process has, 
     nevertheless, brought forth extremely serious information 
     that could lead any reasonable person to conclude that this 
     nomination should not go forward.
       The interview with Southern Partisan and his acceptance of 
     an honorary degree at Bob Jones University raise significant 
     questions about his sensitivity to the concerns of the 
     African American community in this country. Even worse, his 
     failure to fully disavow these actions is troubling. It 
     seemed almost as if he was playing it safe, trying not to 
     antagonize certain conservative constituencies rather than 
     admitting his mistakes and recognizing the need to take 
     concrete steps to disavow the racist attitudes that both of 
     those institutions represent to many Americans. He will need 
     to do much more if he is confirmed to reassure African-
     Americans that he will faithfully enforce and apply the civil 
     rights laws of this country.
       On another issue, Senator Ashcroft and the Republican 
     majority's treatment of Judge Ronnie White was just plain 
     unfair, and that is why I joined Senator Durbin in 
     apologizing to him when he appeared before the Committee. 
     Senator Ashcroft led opposition to Judge White, misleading 
     our colleagues as to his record and attacking him in harsh 
     and unfair language without giving him an opportunity to 
     respond. There was no excuse for this behavior, and it 
     represents for me an extremely sorry chapter in Senator 
     Ashcroft's public record. Our Republican colleagues on this 
     Committee and in the Senate share the responsibility for what 
     happened. They should not have followed their colleague and 
     allowed this to become a partisan issue on the floor of the 
     Senate.
       I agree with David Broder, who in a column in which he 
     stated a number of reasons for supporting John Ashcroft for 
     Attorney General said that in the end, the Ronnie White 
     episode could alone justify voting against him. He said that 
     Ronnie White deserves more than an apology, he deserves an 
     appointment to the federal bench. I agree and I hope that 
     Senator Ashcroft and President Bush will give this idea 
     serious consideration.
       And they need to go farther. The White nomination debacle 
     raised the issue of race on the Senate floor in an 
     unprecedented and almost tragic manner. The President and his 
     advisors need to take major steps to right that wrong, and 
     they can start by urging the Senate promptly to approve the 
     nomination of Judge Roger Gregory to the Fourth Circuit Court 
     of Appeals. I would note that Judge Gregory has received the 
     endorsement of his home state Senators, Senators Warner and 
     Allen, both of whom come from the President's party.
       Another troubling area is Senator Ashcroft's handling of a 
     St. Louis desegregation case during his time as Attorney 
     General of Missouri. I was impressed with the strong 
     testimony of respected civil rights lawyer Bill Taylor. Mr. 
     Taylor's testimony and the entire record of this case make it 
     clear that at best Senator Ashcroft did not ``get'' the role 
     of the courts in the case and the urgency of resolving the 
     issue in the best interests of the children in the city. At 
     worst, he exploited the case for political purposes, which is 
     very troubling indeed.
       Then there is the case of James Hormel, our current 
     ambassador to Luxembourg, whom Senator Ashcroft strongly 
     opposed when his nomination was under consideration by the 
     Senate. This was an extreme example of a pattern of 
     unwarranted opposition to nominees pursued by Senator 
     Ashcroft. I am frankly mystified by the notion that in the 
     21st century a nomination of a distinguished American would 
     be blocked because of his sexual orientation. This is another 
     sorry chapter in Senator Ashcroft's record, and frankly, his 
     responses to written questions from members of this Committee 
     about his position on this nomination were unsatisfactory and 
     raise even more questions about his testimony than they 
     answer. Ambassador Hormel is right to be outraged by those 
     answers and the insinuations they contain.
       On a related topic, we have the accusations by former 
     Wisconsin state Senator Paul Offner that Sen. Ashcroft 
     questioned him about his sexual orientation in a job 
     interview in 1985. I have worked with both of these people, 
     and based on information I've seen, I find it hard to 
     disbelieve either one. But the Offner account does bother me 
     and while I will vote for Senator Ashcroft in committee 
     today, I reserve the right to review any further information 
     in this area that may come forward prior to the final 
     confirmation vote on the floor. After all, Senator Ashcroft 
     in sworn testimony told me that he had never used such an 
     approach in hiring.
       In the end, however, this record has to be put in the 
     context of the standard that I believe should be used when 
     voting on the confirmation of a cabinet position. And, by the 
     way, I do find somewhat persuasive the argument that the 
     position of Attorney General is particularly significant, 
     although it does not rise to the level of a high lifetime 
     judicial appointment.
       As a matter of practice, the Senate has, for the most part, 
     avoided rejecting the President's Cabinet nominations because 
     of their ideology alone. The Senate may examine, and has 
     examined, whether the extremity of nominees' views might 
     prevent them from carrying out the duties of the office they 
     seek to occupy. But the Senate has nearly uniformly sought to 
     avoid disapproving nominations because of their philosophy 
     alone. I believe that we should not begin to do so now.
       As my colleagues know, in the practices and precedents of 
     the Senate, the Senate considers and approves the 
     overwhelming majority of nominations as a matter of routine. 
     Over the history of the Senate, the Senate has considered and 
     approved literally millions of nominations.
       The Senate's voting to reject a nominee has been an 
     exceedingly rare event. Of the 1.7 million nominees received 
     by the Senate in the last 30 years, the Senate has voted to 
     reject just 4, or one in every 425,000. Of course, Presidents 
     often withdraw without a vote the nominations of those who 
     likely face defeat.
       The Senate's voting to reject a nominee to the Cabinet has 
     been an exceedingly rare event. Over the entire history of 
     the Senate, the Senate has voted to reject only 9 nominations 
     to the President's Cabinet. The Senate rejected six in the 
     19th Century, and three in the 20th Century.
       Four of the nine Cabinet nominees rejected were during the 
     Presidency of President Tyler alone. Several other rejections 
     may be said to have flowed from larger battles between the 
     Senate and the President, as when the Senate rejected 
     President Jackson's nominee to be Secretary of the Treasury 
     in the wake of the dispute over the Bank of the United 
     States. Similarly, bad feelings after the impeachment of 
     President Andrew Johnson led to the Senate's rejection of 
     President Johnson nominations of his counsel in the 
     impeachment trial to be Attorney General.
       In the 20th Century, the Senate rejected half as many 
     Cabinet nominees as it did in the 19th Century. In the wake 
     of the Teapot Dome scandal, the Senate voted down President 
     Coolidge's nomination of Charles Warren because of his ties 
     to trusts. Most recently in 1989, the Senate rejected the 
     nomination of Senator John Tower, an event which many on this 
     Committee will recall from their own memory.
       This examination of the history demonstrates that it has 
     been a nearly continuous custom of the Senate to confirm a 
     President's nominees to the Cabinet in all but the very 
     rarest of circumstances. These practices and precedents thus 
     support the principle that the Senate owes the President 
     substantial deference in the selection of the Cabinet.
       I should also note, as some members of the committee have 
     done that all of President Clinton's cabinet appointments 
     were confirmed overwhelmingly, and usually unanimously, 
     despite the fact that many Republicans strongly disagreed 
     with their views. This included the view of Attorney General 
     Janet Reno in opposition to the death penalty, a view I 
     strongly share with her but which has enlisted the support of 
     few of my colleagues.
       Now, a number of opponents of this nomination for whom I 
     have very high regard have sought to go beyond the 
     traditional

[[Page 1283]]

     standards for cabinet nominations. I think the most 
     interesting approach that the opponents have laid out, 
     especially in light of the serious problems with Senator 
     Ashcroft's record that I have already identified, is the 
     question of whether Senator Ashcroft will actually enforce 
     the law. I think my colleague Senator Schumer set up the 
     question well when he said words to this effect: ``Given 
     Senator Ashcroft's entire record of passionate advocacy for 
     very conservative causes: Can he switch it off?'' I think 
     this is a useful standard but it must be applied with 
     caution. All of us have observed many talented people taking 
     very different roles in their careers, sometimes having to 
     oppose either people or groups for whom they used to 
     advocate.
       Now in my own career, I've certainly been called 
     unreasonable, unyielding and too persistent on occasion. But 
     I remember being a defense attorney for large corporations at 
     a law firm and then subsequently when I went to the Wisconsin 
     State Senate, voting against those interests every time. I 
     went into the State Senate representing a largely rural 
     district and I remember constantly speaking of the need for 
     rural property tax relief and not letting the City of 
     Milwaukee run off with the entire budget. Yet, when I became 
     a United States Senator, I understood my role to have changed 
     and that I needed to advocate zealously for the very real 
     needs for the people of our largest city.
       So, it seems to me that I've been asked to switch it off on 
     several occasions. I feel I have done so and that this is 
     fairly common in the careers of those public men and women.
       I think we were all struck by the strength of John 
     Ashcroft's commitments and answers to our tough questions 
     which were given under oath. His specific commitments to 
     enforce the law in several areas were certainly not tepid. 
     This was especially true with regard to his responses on 
     choice and abortion-related matters--an area where, as a 
     policy and constitutional matter I disagree with him 
     virtually completely. Given Senator Ashcroft's strident 
     record in this area it is completely understandable to me 
     that critics would regard this as a ``confirmation 
     conversion'' and that some would even see this as cynical 
     with carefully chosen words with regard to Roe v. Wade, 
     leaving the door open for a very different reality in the new 
     Attorney General's office. I, for one, will not stand by and 
     allow a departure from the clear impression that Senator 
     Ashcroft offered as an assurance. In fact, one area I will 
     closely scrutinize is his choices for top level positions in 
     the Department of Justice. He will have direct responsibility 
     for carrying out the promises he made to this Committee and 
     the country.
       But I do take some umbrage at the notion that giving John 
     Ashcroft's sworn testimony the benefit of the doubt is 
     somehow because of Senate collegiality. No, it is because it 
     is sworn testimony.
       But I do understand the very strong skepticism on this 
     point in light of the incidents I've already reviewed 
     especially as they relate to the blocking of nominations, a 
     process in which John Ashcroft too often participated. I 
     cannot question anyone for opposing this nomination, anyone 
     for coming to an opposite conclusion of this record. It 
     simply depends on one's view of the cabinet nomination 
     process. It is a judgement call. I feel obligated under the 
     traditional understanding of how cabinet appointments are 
     handled to not put the worst possible interpretation on these 
     facts. And I specifically cannot justify constructing the 
     worst case scenario solely because Senator Ashcroft seemed to 
     do the same for a number of very worthy nominees. It is 
     certainly tempting to do so, but I am afraid it looks too 
     much like political ``payback,'' a lesson that would not be 
     lost in future cabinet confirmation considerations, including 
     those involving the choices of a Democratic President. I 
     don't want to be a part of taking the United States Senate 
     and this country further down the road that John Ashcroft and 
     others in his party paved during the Clinton years.
       Having said that, I want to hasten to add that I'm not at 
     all sure that this kind of deference be given anymore on 
     lifetime federal judicial appointments given what appears to 
     be an open assault in recent years by the U.S. Senate on the 
     federal judiciary. As I said in my opening statement at the 
     confirmation hearing, although Democrats are being asked to 
     follow the political golden rule on this nomination, I 
     certainly agree that the line must be drawn at some point 
     concerning the politicization of appointments. My judgment is 
     that this is not the place--not this nomination or this 
     office, as terribly important as it is.
       And yes, I firmly believe that as a progressive, this is 
     about our future credibility and ability to move our agenda 
     in a future administration that better reflects on voting 
     records and beliefs, which in most cases are just the 
     opposite of a John Ashcroft's.
       I know that some see this as futile or naive in light of 
     the unbending ``other side.'' They may be right. But I 
     believe the American people desperately want us to conduct 
     ourselves, where possible, in a bipartisan manner: with 
     civility, with give and take, and act as if those terms have 
     real meaning and are not just empty rhetoric.
       So when I vote for John Ashcroft in committee, I am 
     reaching out to the new Administration and to my Republican 
     colleagues and especially those on the opposite side of this 
     committee. I believe we share mutual respect. So I am 
     extending to you at the beginning of this new Republican 
     Administration an olive branch, but it is not a white flag I 
     assure you. This is about the Department of Justice and it is 
     justice I want to see for the wrong done to Judge Ronnie 
     White. And it is justice I want to see done in the 4th 
     Circuit Court of Appeals where the largest African American 
     population lives and has never had an African American judge 
     until the recess appointment of Roger Gregory. It is justice 
     I want for numerous other circuit court nominees who 
     languished in this committee for years and never even 
     received a hearing. And it is justice I want for the future 
     James Hormels and Bill Lann Lees who were most assuredly 
     treated unfairly. And it is justice I want for the victims of 
     racial profiling in America. And I will press this 
     Administration, the Attorney General, and this committee to 
     prevent it from happening to others in the future.
       So I am genuinely appealing to you to show in concrete ways 
     in the near future that you are concerned about the obviously 
     heartfelt and legitimate feelings of many Americans that the 
     Senate's role in the nominations process has been abused and 
     overly politicized. There are real fault lines emerging in 
     our culture and in our political system and repairs must be 
     made. And some who have been harmed can and must be made 
     whole.
       In fact, one of the most eloquent statements to this effect 
     came just this month in President George W. Bush's Inaugural 
     Address: ``Sometimes our differences run so deep it seems we 
     share a continent, but not a country.'' I think he's right 
     and I think this committee is the place to begin to repair 
     the breach. That means for me the very difficult decision to 
     vote to confirm John Ashcroft, but it also means immediate 
     concrete efforts by the President and his party to mend the 
     wounds that led to such fierce opposition to the Ashcroft 
     nomination. It, of course, also means that the new Attorney 
     General must vigorously enforce the law and be the Attorney 
     General of all the people, regardless of race, religion, 
     gender or sexual orientation. If he does that, he will earn 
     the support of the American people. If he does not, I will be 
     the first to call him on it and demand that he be held 
     accountable.

  That was my statement in the Judiciary Committee.
  I rise today to speak more generally on the Senate's role of advice 
and consent in the President's nomination of individuals to the 
Cabinet. I rise also to speak a bit about the appointment process in 
general, apart from the discussion of any particular nomination. This 
analysis governs my consideration of both Senator Ashcroft's and Ms. 
Norton's nominations.
  John Adams wrote that we seek ``[a] government of laws, and not of 
men.'' He and other Founders sought a government based on principles, 
not on personalities. If we, as Senators, wish to serve that end in the 
nomination process, we must measure Cabinet nominations according to 
principle, with a look at the past and a view to the future.
  The first principle that I think should govern Cabinet nominations is 
what one might call the political Golden Rule. We, as Democrats, 
should, if at all possible, do unto the Republicans as we would have 
the Republicans do unto us. A Democratic President ought to be able to 
appoint to the Cabinet principled people of strong progressive 
ideology. And a Republican President ought to be able to appoint to the 
Cabinet principled people of strong conservative ideology.
  Now, some of our Republican colleagues have certainly failed too 
often in recent years to follow that Golden Rule, and I understand the 
desire to repay them in kind. To some degree, I share that desire. But 
I am determined to resist it for the good of the country, the health of 
the nomination process, and ultimately, to advance the prospects of 
future nominees who share the unabashedly progressive convictions that 
I hold dear.
  This principle means that, except in the rarest of cases, voting 
records and conservative ideology alone should not be a sufficient 
basis to reject at least a Cabinet nominee. I say this as a progressive 
Democrat from Wisconsin who hopes that future Presidents may appoint 
the William O. Douglasses and Ramsey Clarks of their times, and that 
future Senates will not reject them for Cabinet positions on the basis 
of their ideology alone.
  It should not be a requirement for a Cabinet position that the 
nominee

[[Page 1284]]

travel solely in the middle of the road. There will come great leaders 
on the left and on the right.
  If we seek the great minds of our times, they may on occasion blow 
hot or cold. We should not require all the leaders of our country to 
run a tepid lukewarm.
  Now, whether nominating a staunch conservative is good politics or, 
more importantly, whether it is wise, in light of a promise to unify 
the nation after a very close election, is an important issue for a 
sustained national debate. But that question is not at the core of our 
responsibility in this body to advise and consent on Cabinet 
nominations.
  Alexander Hamilton wrote of the dangers of partisanship in the 
nomination process in Federalist number 76. He cited the partisanship 
of legislatures as one of the reasons why the Constitution did well to 
vest the power to nominate in the President, rather than in the 
Congress. Considering what would happen if the Constitution had given 
the Congress the power to nominate, Hamilton wrote:

       The choice which may at any time happen to be made under 
     such circumstances, will of course be the result either of a 
     victory gained by one party over the other, or of a 
     compromise between the parties. In either case, the intrinsic 
     merit of the candidate will be too often out of sight. In the 
     first, the qualifications best adapted to uniting the 
     suffrages of the party, will be more considered than those 
     which fit the person for the station. In the last, the 
     coalition will commonly turn upon some interested equivalent: 
     ``Give us the man we wish for this office, and you shall have 
     the one you wish for that.'' This will be the usual condition 
     of the bargain. And it will rarely happen that the 
     advancement of the public service will be the primary object 
     either of party victories or of party negotiations.

  So Hamilton wrote in Federalist 76. Thus we honor Hamilton's 
cautionary warning, and we advance the public service, by avoiding 
partisanship in the confirmation process.
  As a matter of practice, the Senate has, for the most part, limited 
its consideration of the President's Cabinet nominees to an inquiry 
into the nominees' fitness for office. The Senate must examine, and has 
examined, the qualifications of nominees. William Blackstone wrote in 
his Commentaries on the Laws of England, a work well known among the 
Founders, that ``[a]ll offices . . . carry in the eye of the law an 
honour along with them; because they imply a superiority of . . . 
abilities, being supposed to be always filled with those that are most 
able to execute them.'' The Senate has thus nearly uniformly sought to 
test the ability of nominees to execute the office that they seek to 
occupy.
  But as a matter of practice, the Senate has, for the most part, 
avoided rejecting the President's Cabinet nominations because of their 
ideology alone. The Senate may examine, and has examined, whether the 
extremity of nominees' views might prevent them from carrying out the 
duties of the office they seek to occupy. But the Senate has nearly 
uniformly sought to avoid disapproving nominations because of their 
philosophy alone. I believe that we should not begin to do so now.
  Mr. President, the second principle that I think should govern 
nominations is that the Senate owes the President substantial deference 
in the selection of the Cabinet. The Constitution vests the appointment 
power primarily in the President. This choice of the Founders, in turn, 
flows from the Constitution's imposing on the President the duty 
faithfully to execute the laws of our Nation.
  Article 2, section 1 of the Constitution begins: ``The executive 
power shall be vested in a President of the United States of America.'' 
That section ends by requiring the President-elect to take the oath 
``that I will faithfully execute the office of President of the United 
States, and will to the best of my ability, preserve, protect and 
defend the Constitution of the United States.'' And article 2, section 
3 provides that the President ``shall take care that the laws be 
faithfully executed.''
  To carry out that duty, the President needs policy-makers in the 
executive branch, particularly in the Cabinet and subcabinet, who will 
support the President's program, as well as carry out the law. The 
Supreme Court in Myers v. United States explained:

       Our conclusion . . . is that Article II grants to the 
     President the executive power of the Government, i.e., the 
     general administrative control of those executing the laws, 
     including the power of appointment and removal of executive 
     officers--a conclusion confirmed by his obligation to take 
     care that the laws be faithfully executed; . . . and . . . 
     that to hold otherwise would make it impossible for the 
     President, in case of political or other differences with the 
     Senate or Congress, to take care that the laws be faithfully 
     executed.

  Thus article 2, section 2 of the Constitution confers the appointment 
power in the following language:

       The President . . . shall nominate, and by and with the 
     advice and consent of the Senate, shall appoint ambassadors, 
     other public ministers and consuls, judges of the Supreme 
     Court, and all other officers of the United States, whose 
     appointments are not herein otherwise provided for, and which 
     shall be established by law: but the Congress may by law vest 
     the appointment of such inferior officers, as they think 
     proper, in the President alone, in the courts of law, or in 
     the heads of departments.

  Let me begin my discussion of this language with an analysis of its 
history.
  With this language, the Constitutional Convention made a change from 
the Articles of Confederation. Article 9 of the Articles of 
Confederation vested appointment powers in the Congress or a committee 
of Congress. That article provides, in relevant part:

       The United States in Congress assembled, shall have the 
     sole and exclusive right and power of . . . appointing courts 
     for the trial of piracies and felonies committed on the high 
     seas. . . .
       The United States in Congress assembled shall also have the 
     sole and exclusive right and power of . . . appointing all 
     officers of the land forces, in the service of the United 
     States, excepting regimental officers--appointing all the 
     officers of the naval forces, and commissioning all officers 
     whatever in the service of the United States. . . .
       The United States in Congress assembled shall have 
     authority . . . to appoint such other . . . civil officers as 
     may be necessary for managing the general affairs of the 
     United States under their direction. . . .

  And finally:

       The United States in Congress assembled shall never . . . 
     appoint a commander in chief of the army or navy, unless nine 
     States assent to the same. . . .

  Recall that one of the prime reasons for the Constitutional 
Convention that wrote our current Constitution was that the Articles of 
Confederation provided a government that proved less than workable. The 
Founders thus sought consciously to depart from this legislative 
government in favor of a stronger executive.
  When the Constitutional Convention began to debate the Constitution, 
its working draft initially provided for the Congress to choose the 
national judiciary. Many of the Framers found fault with this proposal. 
Pennsylvania's James Wilson argued that appointment by a group with 
numerous members would necessarily lead to ``[i]ntrigue, partiality, 
and concealment.'' He argued: ``A principal reason for unity in the 
Executive was that officers might be appointed by a single, responsible 
person.''
  Virginia's James Madison agreed, saying, ``Besides the danger of 
intrigue and partiality, many of the members were not judges of the 
requisite qualifications. The Legislative talents . . . were very 
different from those of a Judge. . . .''
  Massachusetts's Nathaniel Gorham, who in the Convention was an early 
proponent of the structure finally adopted in the Constitution, also 
emphasized the value of focusing responsibility on the President. 
Madison's notes report him saying:

       The Executive would certainly be more answerable for a good 
     appointment, as the whole blame of a bad one would fall on 
     him alone. . . . [N]ot . . . that he would be answerable 
     under any other penalty than that of public censure, which 
     with honorable minds was a sufficient one.

  Pennsylvania's Gouverneur Morris argued that the President would need 
to deal with every part of the United States, and would thus be best 
informed about the character of potential nominees. Madison's notes 
report:

       Mr. Gouverneur Morris argued against the appointment of 
     officers by the Senate. He

[[Page 1285]]

     considered the body as too numerous for the purpose; as 
     subject to cabal; and as devoid of responsibility.--If Judges 
     are to be tried by the Senate . . . it was particularly wrong 
     to let the Senate have the filling of vacancies which its own 
     decrees were to create.

  Gouverneur Morris later summed up: ``[A]s the President was to 
nominate, there would be responsibility, and as the Senate was to 
concur, there would be security.''
  When they reported home to their Governor, Connecticut's Roger 
Sherman and Oliver Ellsworth cited the protection of the rights of 
smaller states, writing: ``The equal representation of the States in 
the Senate and the voice of that branch in the appointment to offices 
will secure the rights of the lesser as well as of the greater 
States.'' The Supreme Court in Myers v. United States cited this as a 
major purpose for the creation of the Senate's power of advice and 
consent, saying:

       The history of the clause by which the Senate was given a 
     check upon the President's power of appointment makes it 
     clear that it was not prompted by any desire to limit 
     removals. . . . [T]he important purpose of those who brought 
     about the restriction was to lodge in the Senate, where the 
     small States had equal representation with the larger States, 
     power to prevent the President from making too many 
     appointments from the larger States.

  After the Convention settled on the language now in the Constitution, 
proponents and opponents of executive power alike agreed that the 
President received the paramount role.
  New York's Alexander Hamilton, who wanted a strong Presidency, wrote 
in Federalist number 76:

       [I]t is easy to show, that every advantage to be expected . 
     . . would, in substance, be derived from the power of 
     nomination . . . . In the act of nomination, his judgment 
     alone would be exercised; and as it would be his sole duty to 
     point out the man who, with the approbation of the Senate, 
     should fill an office, his responsibility would be as 
     complete as if he were to make the final appointment. There 
     can, in this view, be no difference between nominating and 
     appointing.

  Similarly, Maryland's Luther Martin, who feared too strong a 
Presidency, wrote in the Genuine Information:

       To that part of this article . . . which gives the 
     President a right to nominate, and with the consent of the 
     Senate to appoint all the officers, civil and military, of 
     the United States, there were considerable opposition--it was 
     said that the person who nominates, will always in reality 
     appoint . . . .

  In the ratification debates, insofar as they addressed the nomination 
process, Hamilton's two Federalist Papers, numbers 76 and 77, stand 
most prominently. In Federalist number 76, Hamilton picked up the theme 
of the value of focusing responsibility on the President, writing:

       The sole and undivided responsibility of one man will 
     naturally beget a livelier sense of duty and a more exact 
     regard to reputation. He will, on this account, feel himself 
     under stronger obligations, and more interested to 
     investigate with care the qualities requisite to the stations 
     to be filled, and to prefer with impartiality the persons who 
     may have the fairest pretensions to them. He will have fewer 
     personal attachments to gratify, than a body of men who may 
     each be supposed to have an equal number; and will be so much 
     the less liable to be misled by the sentiments of friendship 
     and of affection. A single well-directed man, by a single 
     understanding, cannot be distracted and warped by that 
     diversity of views, feelings, and interests, which frequently 
     distract and warp the resolutions of a collective body.

  Hamilton also wrote of responsibility in Federalist number 77, where 
he wrote:

       The blame of a bad nomination would fall upon the President 
     singly and absolutely. The censure of rejecting a good one 
     would lie entirely at the door of the Senate; aggravated by 
     the consideration of their having counteracted the good 
     intentions of the Executive. If an ill appointment should be 
     made, the Executive for nominating, and the Senate for 
     approving, would participate, though in different degrees, in 
     the opprobrium and disgrace.

  In the discussion among the Founders that touches most closely on the 
Senate's role in the nomination process, Hamilton wrote that he 
expected the Senate to reject nominees rather infrequently, but that 
the potential of such rejections would provide a useful check. Hamilton 
wrote:

       But might not his nomination be overruled? I grant it 
     might, yet this could only be to make place for another 
     nomination by himself. The person ultimately appointed must 
     be the object of his preference, though perhaps not in the 
     first degree. It is also not very probable that his 
     nomination would often be overruled. The Senate could not be 
     tempted, by the preference they might feel to another, to 
     reject the one proposed; because they could not assure 
     themselves, that the person they might wish would be brought 
     forward by a second or by any subsequent nomination. They 
     could not even be certain, that a future nomination would 
     present a candidate in any degree more acceptable to them; 
     and as their dissent might cast a kind of stigma upon the 
     individual rejected, and might have the appearance of a 
     reflection upon the judgment of the chief magistrate, it is 
     not likely that their sanction would often be refused, where 
     there were not special and strong reasons for the refusal.

  Hamilton concluded:

       To what purpose then require the co-operation of the 
     Senate? I answer, that the necessity of their concurrence 
     would have a powerful, though, in general, a silent 
     operation. It would be an excellent check upon a spirit of 
     favoritism in the President, and would tend greatly to 
     prevent the appointment of unfit characters from State 
     prejudice, from family connection, from personal attachment, 
     or from a view to popularity.

  The first Congress, which included among its Members several of the 
Founders, had occasion to discuss the appointment power. Georgia's 
Abraham Baldwin, for one, had been a delegate to the Constitutional 
Convention, and then became a Congressman. In arguing against extending 
the Senate's advice and consent power to removals from office, he said:

       I am well authorized to say that the mingling of the powers 
     of the President and Senate was strongly opposed in the 
     Convention which had the honor to submit to the consideration 
     of the United States and the different States the present 
     system for the government of the Union. Some gentlemen 
     opposed it to the last, and finally it was the principal 
     ground on which they refused to give it their signature and 
     assent. One gentleman called it a monstrous and unnatural 
     connection and did not hesitate to affirm it would bring on 
     convulsions in the government. This objection was not 
     confined to the walls of the Convention; it has been subject 
     of newspaper declamation and perhaps justly so. Ought we not, 
     therefore, to be careful not to extend this unchaste 
     connection any further?

  Similarly, James Madison became a Congressman in the first Congress, 
where he said:

       Perhaps there was no argument urged with more success or 
     more plausibly grounded against the Constitution under which 
     we are now deliberating than that founded on the mingling of 
     the executive and legislative branches of the Government in 
     one body. It has been objected that the Senate have too much 
     of the executive power even, by having control over the 
     President in the appointment to office. Now shall we extend 
     this connexion between the legislative and executive 
     departments which will strengthen the objection and diminish 
     the responsibility we have in the head of the Executive?

  The Supreme Court in Myers v. United States concluded from this 
history that it should read narrowly the Senate's power of advice and 
consent, saying: ``Our conclusion . . . is . . . that the provisions of 
the second section of Article II, which blend action by the legislative 
branch, or by part of it, in the work of the executive, are limitations 
to be strictly construed and not to be extended by implication . . . 
.''
  Let me turn now briefly to the history of the process of advice and 
consent in the Senate. Many of my Colleagues will have read the 
excellent discussion of that history in volume 2, chapter 2, of Senator 
Byrd's history of the Senate. For those who have not, I recommend it.
  As my Colleagues know, in the practices and precedents of the Senate, 
the Senate considers and approves the overwhelming majority of 
nominations as a matter of routine. Over the history of the Senate, the 
Senate has considered and approved literally millions of nominations.
  The Senate Executive Journal began totaling the number of nominations 
received and confirmed beginning in 1929. From then until now, the 
Senate has received more than 2.9 million nominations and confirmed 
more than 2.8 million. Over that period, the Senate has confirmed 97.9 
percent of the nominations that it received. Among those not confirmed, 
many simply remained unconfirmed at the end of a Congress.
  The Senate's voting to reject a nominee has been an exceedingly rare 
event. Of the 1.7 million nominees received by the Senate in the last 
30 years, the

[[Page 1286]]

Senate has voted to reject just 4, or one in every 425,000. Of course, 
Presidents often withdraw without a vote the nominations of those who 
likely face defeat.
  The Senate's voting to reject a nominee to the Cabinet has been an 
even more exceedingly rare event. Over the entire history of the 
Senate, the Senate has voted to reject only 9 nominations to the 
President's Cabinet. The Senate rejected 6 in the 19th Century, and 3 
in the 20th Century.
  Four of the 9 Cabinet nominees rejected were during the Presidency of 
President Tyler alone. Several other rejections may be said to have 
flowed from larger battles between the Senate and the President, as 
when the Senate rejected President Jackson's nominee to be Secretary of 
the Treasury in the wake of the dispute over the Bank of the United 
States. Similarly, bad feelings after the impeachment of President 
Andrew Johnson led to the Senate's rejection of President Johnson's 
nomination of his counsel in the impeachment trial to be Attorney 
General.
  In the 20th Century, the Senate rejected half as many Cabinet 
nominees as it did in the 19th Century. In the wake of the Teapot Dome 
scandal, the Senate voted down President Coolidge's nomination of 
Charles Warren because of his ties to trusts. The Senate voted down 
President Eisenhower's nomination of Lewis Strauss, some say because of 
Admiral Strauss's lack of tack. Most recently, in 1989, the Senate 
rejected the nomination of Senator John Tower, an event which many in 
the Senate will recall from their own memory.
  This examination of the history demonstrates that it has been a 
nearly continuous custom of the Senate to confirm a President's 
nominees to the Cabinet in all but the very rarest of circumstances. 
These practices and precedents thus support the principle that the 
Senate owes the President substantial deference in the selection of the 
Cabinet.
  Bearing in mind this history and Hamilton's admonition that the 
Senate's ``dissent might cast a kind of stigma upon the individual 
rejected, and might have the appearance of a reflection upon the 
judgment of the chief magistrate,'' what then should be, in Hamilton's 
words, the ``special and strong reasons for the refusal'' that should 
prompt the Senate to reject a nominee to the Cabinet?
  It is in the nature of the Constitution's grant of powers to the 
Senate that each Senator must make his or her own decision how to vote 
on nominees whom the Senate considers. It thus follows that each 
decision must to some extent be subjective. But we do injury to the 
reputation of the Senate when we cannot articulate our reasons for 
rejecting a nominee as the expression of rules that could have 
universal application.
  It is the nature of justice that different persons of similar 
circumstances should receive similar treatment. Let us do justice when 
the Senate exercises its role of advice and consent.
  Let us examine nominees to see that they have, in Blackstone's words, 
``superiority of . . . abilities''; let us see that they are ``most 
able to execute'' the offices for which they are nominated.
  Let us thoroughly investigate nominees' competence and experience. 
Let us question whether they have taken actions that would lead us to 
doubt their ability fully and fairly to execute their offices.
  Let us explore nominees' integrity and ensure that they have the 
proper ethical bearing to administer the high trusts to which they are 
nominated.
  And yes, let us guard against approving the nomination of an 
individual who stands so far at variance with the core values of this 
Nation--values of freedom, democracy, and equality--that we cannot 
realistically imagine the nominee's being able to carry out the duties 
of an office in our American government. That will necessarily be a 
subjective judgment, but plainly a legitimate one.
  But let us conduct our investigation in matters such as these that 
involve the lives and reputations of other people--people almost 
uniformly highly regarded in the community--with civility. Let us take 
pains to avoid casting the kind of personal ``stigma'' that Hamilton 
feared. And let us, when we hold the honor and careers of people in our 
hands, do what we can to diffuse the bitter viciousness that has seized 
so much of official Washington.
  I propose that we govern ourselves by principle, as a Democrat at the 
outset of a new Republican Presidency, in the hope that we may rise 
above that which has come before. For I cannot help but express my 
objection to the attitude and approach that the Republican majority in 
the Senate took toward the nominees of the Democratic President since 
the Republicans took control of the majority in 1994.
  In some respects, the Republican majority seemed not even to accept 
the legitimacy of President Clinton's electoral victories in 1992 and 
1996. Elections must have consequences.
  Instead, it appeared to me that they unfairly blocked very 
legitimate, qualified appointees such as Bill Lann Lee, Ronnie White, 
and James Hormel.
  I think this was wrong. But I propose that we Democrats not return 
the favor, escalating a never-ending harshening of our discourse. 
Rather, I propose that we treat this new Republican President the way 
that we would want a Republican majority to treat a Democratic 
President in the future.
  It is not easy for me to tell those who fought so hard for President 
Clinton and then for Vice-President Gore that we should follow the 
Golden Rule, and that we should treat President Bush better than the 
Republican majority treated President Clinton. And should the new 
President abuse the Senate's deference, there may come a point when we 
have to draw a line and say, ``No more,'' given the Republican 
majority's refusal to accord a Democratic President the very deference 
that Republicans now seek.
  I want to make clear the manner in which I have evaluated both of the 
controversial nominees before this body, the nominee we consider today, 
former Senator Ashcroft, and the nominee who was confirmed Tuesday, Ms. 
Norton. I am no more comfortable with these votes and appointments than 
anyone else of my personal ideological viewpoint.
  I fully understand and have heard the pain expressed by my 
constituents who have strongly criticized these nominations and who 
devote their time and thought to building broader public support for an 
end to all forms of discrimination or for reproductive rights or for an 
environmentally sound energy policy or for wildlands protection. I must 
work hard every day on issues affecting the public interest and public 
welfare, and, in order to move a progressive agenda forward I must sit 
and listen and talk with those who deeply and profoundly disagree with 
me. These nominees and I do not agree on a number of issues. But the 
question that this body faces, and that I face as a member of it, is 
broader than whether or not we are having a referendum on the 
ideological views expressed by these nominees.
  I have reflected and given thought to the deeper historical and 
philosophical roots of the process of the Senate giving ``advice and 
consent'' to Cabinet nominees. In this history of the Senate's 
treatment of Cabinet nominations, deference is an important principle. 
Lack of that deference on nominees can result in a confirmation process 
that is undignified for the country, unlikely to produce outstanding 
public servants, and unable to advance the debate on matters of public 
policy.
  I am attempting by these votes to assist in restoring the Senate's 
credibility and trust, and I will use the powers of my office to make 
certain these nominees live up to the views they have expressed to this 
body under oath.
  And let me underscore that I have risen today to address nominations 
to the Cabinet, who will serve for a term of years, and whom we should 
consider under a far looser standard than that we should apply to 
judges and certainly justices, who will serve for life.
  But I fear that in the process of giving its advice and consent with 
regard to nominations to the President's Cabinet, the Senate is 
positioning itself to head down a road to a dangerous place. Let us 
decide not to go down that road.

[[Page 1287]]

  Let us not go down the road to where those who seek public office 
must all their life avoid any forceful public utterance.
  Let us not go down the road to where young people--college students 
and graduate students--will fear to experiment with new ideas.
  Let us not go down the road to where expression is squelched and 
thoughts are stifled.
  Let us not go down the road to that arid place where public discourse 
is barren because no public leaders dare write articles declaring their 
views.
  Let us not go down the road to where Senators fear to take a 
position, make a statement, or cosponsor a bill on a controversial 
issue, like the death penalty--one way or the other--just to avoid a 
confirmation fight.
  Let us not go down the road to that frozen place where the Senate's 
nomination process imposes a deep chill over political discourse among 
all who would someday hold office.
  And let us not go down a road to where in order to serve our Country, 
one must become like milk toast, like Pablum.
  Rather, let us work together in this government, working with 
vigorous minds who may sometimes have vigorous opinions.
  The American People expect this Senate and this government, divided 
as it is, to govern. We owe them no less than to try to do so.
  Now is not too soon to start. I extend to President Bush the hand of 
cooperation as he begins his administration. I will cast my votes on 
nominations he proposes according to these principles, and hope that 
the President and the majority will return the favor, and work together 
with us in a truly bipartisan manner.
  Mr. ROCKEFELLER. Mr. President, the United States Constitution 
expressly grants to the Senate the prerogative, responsibility, and 
duty to determine its ``advice and consent'' to the nominations of all 
Presidents. This is an important, even awesome mandate, and one no 
Senator takes lightly. While the Senate's constitutional role is 
plainly much more than a mere rubber stamp, the President also should 
be given wide latitude in the people he chooses to run our government 
with him.
  Over the last several weeks, I have voted to approve all but one of 
President Bush's cabinet nominations. I have done so because, on the 
whole, I believe his nominees are an impressive, diverse, and well-
qualified group who reflect the broad spectrum of America's 
philosophical and cultural backgrounds.
  Of course, without exception, they appear to represent the views of 
the new President who nominated them. Beyond their fundamental ability 
to do the job, their views and ideologies have been of little 
consequence to my decisions. Instead, an important additional 
characteristic I have looked for, particularly at this time in our 
nation's history, is a proven ability to bring people together. I seek 
nominees who will welcome diverse points of view and ideas and who will 
lead in building consensus. In that vein, I have given my full support 
to 18 of the cabinet nominations sent to the Senate by President Bush 
this year.
  The nominee before us today, however, is not one I can support.
  The United States Attorney General has a particularly compelling and 
important role, as evidenced by this vigorous debate. The Attorney 
General is known as the President's legal advisor and the people's 
lawyer. He or she is charged with leading our nation in interpreting, 
enforcing, and upholding our laws. He must be a person who embodies 
balance and evenhandedness, so that all of our citizens feel fully and 
fairly represented by his actions. He must be able to contribute in a 
meaningful way to the great challenge of uniting our nation. That is my 
test for this nomination.
  Former Senator John Ashcroft is a man that I have come to know here 
in the United States Senate. I have served with him on the Senate 
Commerce Committee and spent many hours observing and participating 
with him in debate. Throughout his service here, and earlier as 
Governor and Attorney General in the State of Missouri, he has shown a 
strong moral compass and passionately held views about what he wants 
for our country and its citizens.
  As Senate colleagues, we have sometimes agreed, and more often 
disagreed on policy and legislation. In many cases, his legislative 
agenda was not one that I thought helped or protected West Virginia's 
working families, seniors and children. But, again, my test for 
Attorney General is not whether I share John Ashcroft's views on any 
particular issue or matter.
  I have great respect for John Ashcroft as a person of deeply held 
religious beliefs, and his particular faith is of no consequence for me 
in this decision. In fact, I have been personally offended by a few who 
suggest that someone's religion might be a consideration in this or any 
other decision I make. I unequivocally reject that type of thinking and 
believe my own long record proves otherwise.
  John Ashcroft has been honest in his convictions and his principles, 
and he has fashioned his public life working to advance his firmly held 
beliefs. He is a man of strong, unbending ideology--so unbending, in 
fact, that this is what makes him the wrong choice for Attorney 
General. I have plainly seen in John Ashcroft a basic inability to 
compromise or to reach out to those with opposing or different points 
of view.
  The problem is not John Ashcroft's ideology. It is the fact that he 
never seems able to look beyond that ideology to respect and encompass 
others' equally strong beliefs and convictions. There is nothing in his 
long history of public service to suggest he can rise to the challenge 
of being a uniter, someone who can compromise when necessary to bring 
us all together.
  Furthermore, I have heard John Ashcroft's promise to uphold and 
enforce our laws, and I take him at his word. But the question of his 
nomination and the role of Attorney General are not that simple. If 
they were, then every person nominated to a position charged with 
upholding the law would be approved--every judge, every U.S. Attorney, 
every Cabinet Secretary. Reasonable people have honest disagreements 
about what the law says and how to apply it in different situations. 
The law is not always precise, and the path to justice is not always 
clearly marked.
  The Attorney General instead has a great deal of discretion, and he 
must bring to that discretion his own standards, experiences and 
beliefs. Deciding which cases to defend and which to prosecute, which 
judges and proposed changes in the law to support and which to oppose, 
where to dedicate limited resources and where to cut back all are tasks 
that call for objectivity, balance, and leadership.
  Mr. President, after carefully reviewing all of the facts and 
circumstances, and after lengthy personal reflection, I am not 
convinced that John Ashcroft can do the job of Attorney General without 
returning to his life-long rejection of moderation and conciliation.
  John Ashcroft proudly judges issues and people on the basis of his 
own strong ideology. Time and again I have seen John Ashcroft show 
hostility and insensitivity toward those who disagree with him or who 
hold ideals and values that differ from his. He has never hesitated to 
use his views as a test to judge others. This uncompromising approach 
is not what I think our country wants and expects from its leaders.
  I do not stand in judgment of my former Senate colleague, but I must 
reject his nomination for Attorney General.
  Mr. INOUYE. Mr. President, I had every intention to once again, as I 
have done in the past, support the President's choice of Cabinet 
members. The President was elected, he selected his team, and his 
choices should be respected. In the case of former Senator John 
Ashcroft's nomination as the U.S. Attorney General, the President's 
choice will be respected by a majority vote of the Senate. However, if 
I supported the nomination of Senator Ashcroft, my vote may be 
misunderstood not only by my supporters and constituents, but by many 
others.
  It should also be noted that the Constitution reserves to the Senate 
the

[[Page 1288]]

power of advice and consent as to the President's nominations. I hope 
that my opposition, together with the opposition of several of my 
colleagues, will advise the President of our concerns as to his 
nomination of Senator Ashcroft.
  As a person, my experience in serving with Senator Ashcroft has been 
a positive one, but I have found myself on most occasions casting my 
vote in disagreement with Senator Ashcroft. For example, he is for the 
death penalty; I am against the death penalty. He supports doing away 
with abortion; I am for freedom of choice. I have also examined Senator 
Ashcroft's record away from Capitol Hill, and I have found that his 
actions have been consistent with the views he held when we were 
colleagues on the floor of the Senate.
  Senator Ashcroft's actions in the area of civil rights raise 
questions as to his commitment to preserving the civil rights of all 
Americans. As the Governor of Missouri, Senator Ashcroft vetoed bills 
designed to ensure the equal treatment of African American voters. As 
the Attorney General of Missouri, Senator Ashcroft actively obstructed 
the voluntary desegregation plan for the City of St. Louis.
  Similarly, Senator Ashcroft's record on reproductive rights causes me 
some concern. Throughout his political life, Senator Ashcroft has 
believed that there is no constitutional right to abortion, and has 
worked to overturn Roe v. Wade by State and Federal legislation and by 
constitutional amendment. Senator Ashcroft's persistent efforts to 
limit reproductive rights as Missouri's attorney general and Governor, 
and as a U.S. Senator suggest the policies he might endorse as the U.S. 
Attorney General.
  I realize that I may be in the minority in my opposition to the death 
penalty, but I have been against execution as a criminal punishment 
since the start of my political career. For example, I coauthored the 
measure in the Territorial Legislature of Hawaii that abolished capital 
punishment, and from that time forward, no convicted criminal in Hawaii 
has been put to death. Senator Ashcroft does not share my views on this 
subject. Indeed, as Governor of Missouri, Senator Ashcroft took the 
position that the death penalty was appropriate for teenagers, and 
denied that there is any racial disparity in the application of the 
death penalty. I do not share these beliefs, and I think that Hawaii's 
experience with the death penalty points to opposite conclusions.
  Knowing these and the many other aspects of Senator Ashcroft's record 
that have come to light in recent days, I have some difficulty seeing 
him as the next U.S. Attorney General--so much difficulty that I 
believe I must exercise my Senatorial right of advice and consent and 
cast my vote in opposition to the nomination to make sure the record is 
clear.
  Mr. BYRD. Mr. President, I daresay that each of us has received an 
enormous amount of correspondence about the nomination of Senator John 
Ashcroft to be Attorney General of the United States. The favorable 
correspondence tends to emphasize support for the Senator's policy 
priorities and appreciation of his reputation for honesty and 
integrity. The unfavorable correspondence tends to emphasize concern 
about the Senator's policy priorities and disapproval of the standards 
he applied, as Senator, to the disposition of Presidential nominations.
  We must begin by deliberating on the standard to be applied to 
confirmation decisions. The Constitution merely states that the 
President shall appoint public ministers with the ``advice and 
consent'' of the Senate. This is not a specific standard, nor even a 
mandate to review particular features of a nominee's background or 
capabilities. Rather, we are enjoined to employ our judgment, a faculty 
which--however much we may lament it--focuses on different factors in 
considering nominees for different public offices and varies its 
approach in response to the needs of the times. Thus, when it comes to 
our duty to provide advice and consent on cabinet nominations, we are 
plainly in an area where reasonable minds can differ, not only about 
the criteria, but even about the proper result given particular 
criteria. No amount of pressure politics--and no slickly packaged 
talking points--can alter this fundamental fact.
  I do not subscribe to the view that, barring the taint of criminality 
or dishonesty, the President is entitled to have his nominations 
confirmed. I do subscribe to the view that law enforcement officials of 
good will and ability can separate their policy preferences from the 
performance of their official duties.
  There is a distinct difference between the role of a Senator as the 
drafter of laws and the role of the Attorney General as the enforcer of 
laws. Once Senator Ashcroft places his left hand on the Bible and 
swears to uphold the laws of the United States, he will be required to 
enforce even those laws about which he harbors serious reservations. 
Not only that, but given the fact that John Ashcroft is a deeply 
religious man, that solemn vow, I am sure, will not be taken lightly by 
him. Let me quote Senator Ashcroft's own words on that subject: ``As a 
man of faith, I take my word and my integrity seriously,'' he said. 
``So, when I swear to uphold the law, I will keep my oath, so help me 
God.'' Further, during his confirmation hearings, he stated that he 
understands this obligation and fully intends to honor it. For example, 
he indicated that he ``will vigorously enforce and defend the 
constitutionality'' of the law barring harassment of patients entering 
abortion clinics, despite any misgivings he might have about that law.
  I take him at his word. Although, I do not agree with all of Senator 
Ashcroft's views, I have no cause to doubt Senator Ashcroft's word or 
his sincerity regarding his fealty to an oath he will swear before God 
Almighty. It would be an act of supreme arrogance on my part to doubt 
his intention to honor such an oath. I will not prejudge him in such a 
manner.
  Given Senator Ashcroft's background, the position to which he has 
been nominated, and his assurances to the Senate that he will 
faithfully uphold the laws of the United States, I believe he should be 
confirmed.
  Mr. HATCH. Mr. President, as we prepare to close debate on the 
nomination of our former colleague, Senator John Ashcroft to be the 
Attorney General for the United States, I want to first thank a few 
people. First, let me thank Senator Leahy, the Ranking Democrat Member 
on the Judiciary Committee. He faced a difficult task in organizing the 
hearing for this nomination and working for a fair process. I want to 
express my gratitude to him and commend his staff, including the 
Minority Chief Counsel, Bruce Cohen, Senator Leahy's General Counsel, 
Beryl Howell, Mary DeOreo, Natalie Carter, and others.
  I would also like to thank the other members of the committee for 
their diligence regarding this matter. In particular let me thank 
Senator Kyl who has been a tremendous advocate in the effort supporting 
this nomination, and let me also mention Senator Sessions for his hard 
work in behalf of the nomination.
  I also want to commend those Senators on the other side of the aisle, 
who despite intense pressure from and relentless lobbying by a number 
of left-wing groups have stood up for what they believed was right and 
announced their support for this nominee. I especially want to express 
to my colleague on the Judiciary Committee, Senator Feingold, how much 
my respect for him has grown watching him speak in support of and cast 
his vote for John Ashcroft. I know that he has been targeted by 
petitions and email campaigns orchestrated by People for the American 
Way and others to pressure him, but he has not buckled, and I 
congratulate him for his courage to take a principled stand.
  I would also like to thank the Administration and Transition staff 
who worked on this matter. And let me also thank my Committee staff who 
worked literally around the clock to assist me and my colleagues in 
moving this nomination forward. I believe everyone on the committee 
staff has worked tirelessly, but let me especially recognize the 
Committee's Chief Counsel, Sharon Prost, the Committee's Staff 
Director, Makan Delrahim, our fine and able

[[Page 1289]]

counsels, Shawn Bentley, Stephen Higgins, Ed Haden, Rhett DeHart, Gary 
Malphrus, Rita Lari, Lee Otis, Neomi Rao, Rene Augustine, Pat O'Brien, 
Larry Block, Alex Dahl, Jeff Taylor, Leah Belaire, and John Kennedy, 
and our valued staff members, Amy Haywood, Kent Cook, Jessica Caseman, 
Swen Prior, and Jared Garner, and of course our most able press staff, 
who kept us informed of the smear campaigns, Jeanne Lopatto and 
Margarita Tapia. They all worked together as a team with numerous 
others, including Senator Gramm's staff, Senator Bond's staff, as well 
as the able staff of the Senate Leadership, particularly Dave Hoppe and 
Robert Wilkie of Senator Lott's staff and Stewart Verdery of Senator 
Nickles' staff.
  Now let me turn to the nomination itself. Mr. President, I believe we 
are about to confirm one of the most qualified candidates for the 
office of Attorney General that we have ever had. John Ashcroft has 
superb credentials, and he is well-prepared to be Attorney General. In 
addition to graduating from one of our finest law schools, here is a 
man who has almost 30 years of public service to this country--eight 
years as attorney general of his state of Missouri, during which time 
he was elected by his peers, the 50 state attorneys general, Democrats 
and Republicans, to become the president of the National Association of 
Attorneys General. Then he was twice elected governor of Missouri, and 
again elected by his peers, the 50 state governors, to head the 
National Governors Association. And then he was elected by Missourians 
to serve with us here in the United States Senate, where we all came to 
respect him for his work ethic and his integrity.
  As a matter of fact, I don't know of one Senator in the whole United 
States Senate who would disagree with the statement that this is an 
honorable man of integrity. When he says he'll do something, he'll do 
it. I don't know anybody, who, knowing his record and his life, who 
would conclude that John Ashcroft is anything but one of the finest 
people they've every met.
  But during this process, I think that we have seen some attempts here 
to undermine a truly good man. Some things have been done throughout 
this process that were outside the bounds of policy debate, beyond what 
is decent and right. In the zeal to take a political stand against this 
nominee for whatever reason, I believe there have been numerous 
charges, innuendos, and distortions that were neither fair nor 
accurate. I have tried to help rebut these charges, but they ought not 
to have been made.
  Despite these attacks, I do not believe this good man, this man of 
deep faith and conviction, will take offense or hold grudges. I believe 
he will do what he has promised to do. He will be inclusive, 
forthright, and he will follow the law. He will be an Attorney General 
for all the people and be an Attorney General of whom we can all be 
proud. I know he will because I know John Ashcroft, as most of us do. I 
know he is well-prepared. And I know when he promises to discharge his 
duties faithfully, to uphold the law and Constitution, enlisting the 
help and witness of God to do so, he means it, and he will do it.
  I look forward to working with him to help make our nation safer, 
more just, and more in line with our founding principles, embodied in 
our Constitution. His job is largely about making our nation more safe 
and free. I am glad we will have an Attorney General who will work 
toward that goal.
  I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LOTT. 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. LOTT. Mr. President, parliamentary inquiry: Have the yeas and 
nays been ordered?
  The PRESIDING OFFICER. They have not been ordered.
  Mr. LOTT. I ask for the yeas and nays on this vote after my closing 
remarks.
  The PRESIDING OFFICER (Mr. Fitzgerald). Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. LOTT. One other inquiry: Has all time been used except for the 
time reserved for the majority leader?
  The PRESIDING OFFICER. That is correct.
  Mr. LOTT. Mr. President, I want to begin by assuring all of my 
colleagues that I will not use the entire 15 minutes, so we can begin 
the vote hopefully 5 or 10 minutes early. Senators need to be aware of 
that so they can come and begin the vote within the next 10 minutes.
  Mr. President, this nomination has not been an easy one for the 
Senate Judiciary Committee or the Senate to deal with without some 
difficulty. You can argue about why that is. But we have come to it, 
and now we are ready to vote.
  Only nine times in our history has the Senate defeated one of the 
President's nominees for his Cabinet and only once since 1959. When I 
was a new Senator in 1989, I observed what I thought was a terrible 
miscarriage of justice against former Senator John Tower. John Tower 
should have been Secretary of Defense. I was really disappointed in how 
he was savaged and how some of his colleagues in this body treated him.
  Only one time in 40 years have we not confirmed the President's 
nomination for a Cabinet position, and that, I am convinced, was a 
terrible mistake.
  Today we will confirm former Senator John Ashcroft to be Attorney 
General. That is as it should be.
  I have been disappointed by this nomination's process through the 
Judiciary Committee, and to a degree here, although less so on the 
floor of the Senate. I thought the rhetoric got too hot. It did get 
into the range of being unfair. But I don't think we should let that 
permanently alter the atmosphere we have tried to set in the Senate.
  I have tried to get through some items that would allow us to move 
forward in a positive vein.
  I think congratulations also would be in order, and certainly a word 
of appreciation for the leadership on the Democratic side of the aisle. 
Senator Daschle has tried to help get us through this nomination. He 
made it clear that he would not participate in a filibuster. I do not 
recall in the 30- something years I have been watching the Senate very 
closely a Cabinet nomination being filibustered. It would be a terrible 
precedent. He spoke out, saying he wouldn't do it, that he wouldn't 
support it. To those who said we shouldn't have a filibuster, I say 
thank you for that.
  There will be those who will speak out about what this vote means, if 
it is not 60 votes, or if it is 69 over 61, or whatever it may be. I 
think that will be a futile waste of time. I don't think we should read 
anything into it. This nominee is going to be confirmed, and he should 
be. The President of the United States, George W. Bush, is entitled to 
have his selection to be Attorney General.
  I want to say also that I know John Ashcroft. I know him as a man. I 
knew him as a Senator. I knew him as a close personal friend, and I 
knew him as a member of the Singing Senators as we sang all across this 
country together. I have been in his home. I know his wife. I know his 
children. I know his constituents. I have been all over Missouri. He 
has been in my home. He knows my friends, and we have been together in 
many instances. I don't know this person who has been described in some 
of the debate; some of these allegations about things he did, or didn't 
do, or whether or not he is a man of his word. I do not know that 
person. I know John Ashcroft. I know the man who served in this 
Chamber. I know his abilities, his education, and his qualifications. I 
don't think there has ever been a more qualified person by background, 
education, and experience to be Attorney General than John Ashcroft.
  I remember 8 years ago, when I voted to confirm the previous Attorney 
General, thinking that this nominee was not qualified, and I think she 
proved it. But I voted for her because I thought

[[Page 1290]]

President Clinton was entitled to his nominee at that point.
  So we have a man who is qualified. But it is more than that. John 
Ashcroft is a good man of high veracity and who will keep his word.
  Senator Byrd said yesterday, I believe, in his speech that he has 
made a commitment he is going to uphold the law. What more should we 
want: A pound of flesh?
  I realize this is all about other things. That is OK. But it is 
unfair to this man.
  Maybe the ravens will be heard never more. But forevermore you can 
quote me on this and remind me on this. John Ashcroft will go on to be 
one of the best Attorneys General we have ever had. He will be 
conscientious. He will show capability. He will be sensitive. He will 
be honest. He will enforce the laws--some laws that have been ignored 
the last 8 years--and maybe there are some people who are a little 
nervous about that. But, as we say in all kinds of different circles in 
America, I am here to vouch for their man. I vouch for John Ashcroft. I 
will stand by him. And you mark my words, he will go on to be a great 
and valuable Attorney General.
  So let's move on. Let's work together, as I know we can do.
  I accept the olive branch extended by Senator Russ Feingold. That is 
what he said. I extend the olive branch to show a willingness to work 
together and reach across the aisle and across all the other things 
that could divide us. He showed courage. I will not forget it. In fact, 
I think I maybe didn't forget it in advance because we have already 
worked out an agreement on how we are going to bring up a bill about 
which he cares a lot.
  But that was an important statement on his part. I accept it. We 
accept it. That is the way we should proceed.
  This new President has changed the tone in this city. Absolutely, 
people are astounded by his willingness to reach out and to listen and 
to be heard. He is meeting with everybody. He has even seen motion 
pictures with them. So he is doing his part. Let us make sure the 
Senate does its part.
  Vote for John Ashcroft. You won't regret it. Then let's move on to 
important legislation. Let's argue about ideas. Let's argue about how 
to make education better. Let's argue about how to give tax relief--
``return to sender,'' as the Senator from Georgia said. That is what 
the people want us to talk about. They want to get this vicious and 
partisan stuff behind us and deal with real issues. I don't think 
insurmountable damage has been done. I believe we can build on the 
other things we have done in the last month.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The question is, Does the Senate advise and 
consent to the nomination of John Ashcroft of Missouri to be Attorney 
General of the United States? The yeas and nays have been ordered, and 
the clerk will call the roll.
  The legislative clerk called the roll.
  The result was announced--yeas 58, nays 42, as follows:

                       [Rollcall Vote No. 8 Ex.]

                                YEAS--58

     Allard
     Allen
     Bennett
     Bond
     Breaux
     Brownback
     Bunning
     Burns
     Byrd
     Campbell
     Chafee
     Cochran
     Collins
     Conrad
     Craig
     Crapo
     DeWine
     Dodd
     Domenici
     Dorgan
     Ensign
     Enzi
     Feingold
     Fitzgerald
     Frist
     Gramm
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kyl
     Lott
     Lugar
     McCain
     McConnell
     Miller
     Murkowski
     Nelson (NE)
     Nickles
     Roberts
     Santorum
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Voinovich
     Warner

                                NAYS--42

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Cantwell
     Carnahan
     Carper
     Cleland
     Clinton
     Corzine
     Daschle
     Dayton
     Durbin
     Edwards
     Feinstein
     Graham
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerry
     Kohl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Reid
     Rockefeller
     Sarbanes
     Schumer
     Stabenow
     Torricelli
     Wellstone
     Wyden
  The nomination was confirmed.
  The PRESIDING OFFICER. In my capacity as a Senator from the State of 
Illinois, I ask unanimous consent that the motion to reconsider be laid 
upon the table and the President be immediately notified that the 
Senate has given consent to this nomination, and the Senate then resume 
legislative session.
  Without objection, it is so ordered.

                          ____________________