[Congressional Record (Bound Edition), Volume 147 (2001), Part 1]
[Senate]
[Pages 715-730]
[From the U.S. Government Publishing Office, www.gpo.gov]



                      NOMINATION OF JOHN ASHCROFT

  Mr. LEAHY. The President of the United States sent to the Senate the 
nomination of John Ashcroft to be the Attorney General of the United 
States. In advance of him sending it, to accommodate the new President 
and expedite the consideration of the nomination, I convened 3 days of 
hearings on this nomination over the 4-day period from January 16 to 
January 19.
  The Republican leadership had announced weeks ago that all 50 
Republican Senators would be voting in favor of this nomination, but I 
declined to prejudge the matter.
  The Committee on the Judiciary has done the best it could to handle 
this nomination fairly and fully, and we did it through hearings of 
which all members of the committee, on both sides of the aisle, and all 
Members of the Senate I believe can be proud.
  Having reviewed the hearing record and the nominee's responses to 
written follow-up questions from the Judiciary Committee, I come today 
to announce and explain my opposition to the nomination of John 
Ashcroft to be the Attorney General of the United States.
  I take no pleasure in having reached this decision. I have voted or 
will be voting to confirm nearly all of the President's Cabinet 
nominees. No one in this Chamber more than I would have wanted a 
nomination for Attorney General that the Senate could have approved 
unanimously. As the ranking member of the Senate Judiciary Committee, I 
am going to be working closely with the new Attorney General, often on 
a daily basis. I would have wanted to begin that relationship with 
enthusiastic support for whomever the President chose.
  I also had the privilege of working with John Ashcroft during the 6 
years he served as a Senator, and I consider it a privilege. Most of us 
know him and like him. I admire his personal devotion to his family and 
to his religion. While we are not always in agreement, I respect his 
commitment to the principles he firmly holds, and I respect his right 
to act on those principles.
  The fact that many of us served with Senator Ashcroft and know and 
like him does not mean we should not faithfully carry out our 
constitutional responsibility in acting on this nomination. No one 
nominated to be Attorney General of the United States should be treated 
in any special way, either favorably or unfavorably, by this body 
because he or she once served in the

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Senate. Our guide must be constitutional duty, not friendship.
  Most of us believe that a President has a right to nominate to 
executive branch positions those men and women whom he believes are 
going to carry out his agenda and his policies, but it is only with the 
consent of the Senate that the President may proceed to appoint.
  The Constitution, interestingly enough, is silent on the standard 
Senators should use in exercising this responsibility. Every Senator 
has the task of discerning what that standard should be, and then each 
Senator has to decide how it applies in the case of any nomination, 
especially a controversial nomination such as that of Senator Ashcroft.
  The Senate's constitutional duty is to advise and consent; it is not 
to advise and rubber stamp. Fundamentally, the question before us is 
whether Senator Ashcroft is the right person at this moment for the 
critical position of Attorney General of the United States.
  This is an especially sensitive time in our Nation's history. Many 
seeds of disunity have been carried aloft by winds that often come in 
gusts, most recently out of Florida. The Presidential election, the 
margin of victory, the way in which the vote counting was halted by the 
U.S. Supreme Court remain sources of public concern and even of 
alienation. Deep divisions within our country have infected the body 
politic. We experienced the closest Presidential election in the last 
130 years, possibly in our history.
  For the first time, a candidate who received half a million more 
votes lost. The person who received half a million fewer popular votes 
was declared the victor of the Presidential election by 1 electoral 
vote.
  The Senate, for the first time in our history, is made up of 50 
Democrats and 50 Republicans. Although this session of Congress is less 
than 1 month old, each political party has already had its leader serve 
as majority leader. Both Senator Daschle and Senator Lott have served 
as majority leader.
  Senate committees have already operated under both Democratic and 
Republican chairs. I suspect Ph.D. dissertations will be written about 
this for years to come.
  Much has been made of what has come to be known as the Ashcroft 
evolution, where activist positions he has held and valiantly advanced 
appear now to be suddenly dormant in deference, as he said, to settled 
law, at least during the confirmation hearings.
  But leaving Senator Ashcroft aside for a moment, it must not be left 
unremarked that he is not the only politician who has sent conflicting 
signals about his view of Government. We have already seen two distinct 
sides of the new President since he was declared the victor after the 
November election. One side is the optimistic face of bipartisanship--a 
sincere and knowledgeable President determined to work with like-minded 
Democrats and Republicans to overhaul the way we educate our children. 
This is a side of hope, cooperation, and compromise. In fact, in his 
encouraging inaugural address barely 10 days ago, President Bush 
acknowledged the difficulties of these times and the very special needs 
of a divided nation. He said: ``While many of our citizens prosper, 
others doubt the promise, even the justice, of our own country.'' He 
recognized that deep differences divide us and pledged ``to work to 
build a single nation of justice and opportunity.'' I applaud President 
Bush for those words. At the luncheon after the inauguration, I told 
him how much those words meant to me.
  These crucial weeks and months after the divisive election are an 
especially sensitive time, when hope and healing are waiting to emerge. 
But they are also fragile, like the first buds of the sugar maple in 
the spring in my own State of Vermont.
  On the other side of the ledger, though, is the President's decision 
to send to the Senate the nomination of John Ashcroft. Senator Ashcroft 
is a man we know and respect, but a man we also know held some of the 
most extreme positions on a variety of the most volatile social and 
political issues of our time: Civil rights, women's rights, gun 
violence, discrimination against gay Americans, and the role of the 
judiciary itself.
  Appointing the top law enforcement officer in the land is the place 
to begin, if the goal is to bring the country together. I wish the 
President had sent us a nomination for Attorney General who would unite 
us rather than divide us. But that did not happen. This is a nomination 
that had controversy written all over it from the moment it was 
announced. It should surprise no one that today we find ourselves in 
the middle of this battle. It should surprise no one that the polls in 
this country show the American people are deeply divided on this 
nomination.
  It was, I believe, a crucial miscalculation from the President and 
his advisers to believe this nomination would have brought all of us 
together. Or perhaps, as some have suggested, it is an instance where 
consensus was not the objective.
  Many organizations and their members have weighed in on either side 
of this debate. Some advocates for the nominee have been especially 
critical of the membership groups that oppose this nomination. It must 
be said that the only political pressure groups that have had a 
decisive role in this nomination are the far right wing elements of the 
Republican Party who insisted on this particular nominee and even 
bragged to the press that they vetoed other, more moderate, 
candidates--Republican candidates--for this job.
  What is crystal clear to me is that the nomination of John Ashcroft 
does not meet the standard the President himself has set. In those who 
doubt the promise of American justice--and there are those--it does not 
inspire confidence in the U.S. Department of Justice.
  The Senate can help mend these divisions, it can give voice to the 
disaffected, it can help to restore confidence in our Government, but 
only if it remains true to its own constitutional responsibilities. At 
a time of intense political frustration and division, it is especially 
important for the Senate to fulfill its duty.
  One of the abiding strengths of our democracy is that the American 
people have opportunities to participate in the political process, to 
be heard, and to believe that their views are being taken into account. 
When the American people vote, every vote is important, every vote 
should be counted. Then when we hold hearings, and when we vote, we 
have to be cognizant that each of us has sworn an oath to uphold the 
Constitution. Each action we take as Senators has to be consistent with 
that oath.
  There are 280 million Americans in this wonderful and great country 
of ours. Of those 280 million Americans, there are only 100 people who 
have the license and the obligation to vote on this nomination: 100 
Members of the Senate, a body that should be the conscience of the 
Nation, and sometimes is. Two hundred eighty million Americans expect 
us to make up our minds on this.
  There is a reason many of us believe that the job and role of 
Attorney General is the most important job in the Cabinet. Why? Because 
it is not simply a job where you carry out what the President tells you 
to do; it is far more than that. The extensive authority and discretion 
to act in ways that go beyond Presidential orders are part of the 
important role of the Attorney General and require that our Attorney 
General have the trust and confidence of all the people. Democrats, 
Republicans, moderates, conservatives, liberals, white, black, no 
matter who, rich, poor, they must all have confidence in this one 
Cabinet position above all others, because the Attorney General is a 
lawyer for all the people. He is the chief law enforcement officer of 
the country.
  The Attorney General is not the lawyer for the President. The 
President has a White House counsel for that. The Attorney General is 
the lawyer for all of us, no matter where we are from, no matter what 
party we belong to. We all look to the Attorney General to ensure 
evenhanded law enforcement. And we look to the Attorney General for the 
protection of our constitutional rights--including freedom of speech,

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the right to privacy, a woman's right to choose, freedom from 
Government oppression, and equal protection of the laws. The Attorney 
General plays a critical role in bringing the country together, 
bridging racial divisions, and inspiring people's confidence in their 
own Government.
  Senator Ashcroft has often taken aggressively activist positions on a 
number of issues that deeply divide the American people. He had a right 
to take these activist positions. But we have a duty to evaluate how 
these positions would affect his conduct as Attorney General.
  John Ashcroft's unyielding and intemperate positions on many issues 
raise grave doubts, both about how he will interpret the oath he would 
take as Attorney General to enforce the laws and uphold the 
Constitution and also about how he will exercise the enormous power of 
that office.
  Let me be very clear on this. I am not objecting to this nominee 
simply because I disagree with him on ideological grounds. I have voted 
for many nominees with whom I have disagreed on ideological grounds. I 
am not applying the ``Ashcroft standard'' as he applied it to Bill Lann 
Lee and other Presidential nominees over the last 6 years. My 
conclusion is based upon a review of John Ashcroft's record as the 
attorney general and then Governor of Missouri, as a Senator, and also 
on his testimony before the Judiciary Committee. It is based on how he 
has conducted himself and what positions he has taken while serving in 
high public office while sworn to uphold the Constitution, basically 
the same oath one would take as Attorney General.
  President Kennedy observed that to govern is to choose. What choices 
the next Attorney General makes about resources and priorities will 
have a dramatic impact on almost every aspect of the society in which 
we live. The American people are entitled to be sure not just that this 
nominee says he will enforce the laws on the books but also to be sure 
what those priorities are going to be, what choices he is likely to 
make, what changes he will seek in the law. Most importantly, we are 
entitled to know what changes he will seek in the constitutional rights 
that all Americans currently enjoy--that includes, of course, what 
positions he will urge upon the Supreme Court--in particular, whether 
he is going to ask the Supreme Court to overturn Roe v. Wade or to 
impose more burdensome restrictions on a woman's ability to secure 
legal and safe contraceptives.
  On several of these issues, such as his lifelong opposition to a 
woman's right to choose, his support for measures to criminalize 
abortion even in cases of rape and incest, and his efforts to limit 
access to widely used contraceptives, Senator Ashcroft has moved far 
outside the mainstream. The controversial positions taken by this 
nominee and his record require us to reject this nomination as the 
wrong one for the critical position of Attorney General of the United 
States at this time in our history.
  It is in part because I know John Ashcroft to be a person of strong 
convictions and consistency that I am concerned that he could not 
disregard those long-held convictions if he is confirmed by this body. 
It troubles me that he took essentially the same oath of office as 
attorney general of Missouri that he would take as Attorney General of 
the United States, but he acted differently than what he tells us he 
would do now. Senator Ashcroft assumed a dramatically different tone 
and posture on several matters during the course of his hearing.
  The new John Ashcroft did not oppose the nomination of James Hormel 
because of his sexual orientation. The new John Ashcroft is now a 
supporter of the assault weapons ban. The new John Ashcroft is an 
ardent believer in civil rights, women's rights, and gay rights. The 
new John Ashcroft now believes Roe v. Wade is settled law. In fact, the 
more I heard him refer to matters he has consistently opposed, laws he 
consistently tried to rewrite, the more he referred to them as settled 
law, the more unsettling that became.
  Occasionally, we would get a peek behind the confirmation curtain. 
What we saw was deeply disturbing. Senator Ashcroft was unrepentant in 
the way he torpedoed the nomination of Judge Ronnie White to the 
Federal district court, despite calls from some Republican Senators who 
personally apologized to Judge White for the shabby treatment he 
received. Senator Ashcroft, on the one hand, denied that sexual 
orientation had anything to do with his opposition to the Hormel 
nomination, then left the distinct, gratuitous impression that there 
was something unspoken, unreported, yet unacceptable about Mr. Hormel 
that somehow disqualified him from serving the United States as 
Ambassador to Luxembourg, even though Luxembourg said they would 
welcome his appointment as Ambassador.
  Senator Ashcroft repeatedly declined to show the slightest remorse 
for his appearance at Bob Jones University, for the enthusiastically 
supportive interview he gave with a pro-confederate magazine, Southern 
Partisan, and for some of the most inflammatory language I have heard 
about the Federal judiciary since the bitter and violent days of the 
civil rights movement.
  Most of us in this body have known the old John Ashcroft, but during 
the hearings we met a new John Ashcroft. Our challenge has been to 
reconcile the new John Ashcroft with the old John Ashcroft, to find the 
real John Ashcroft who would sit in the Attorney General's office. Were 
the demurrals of his testimony real, or were they delicate bubbles that 
would burst and evaporate a year or a month or a day from now under the 
reassertion of his long-held beliefs.
  So we come back again to why all this matters. Why would we treat 
this position differently than, say, Secretary of Commerce or 
Transportation? Obviously, if he had been nominated to either of those, 
we would not have the controversy we now have. We treat it differently 
because of this: The position of Attorney General is of extraordinary 
importance. The judgments and priorities of the person who serves as 
Attorney General affect the lives of all Americans.
  We Americans live under the rule of law. The law touches us all every 
day in ways that affect our safety and our health and our very rights 
as citizens. Our Attorney General is our touchstone in the fair and 
full application of our laws. The Attorney General not only needs the 
full confidence of the President, he or she also needs the full 
confidence of the American people.
  The Attorney General controls a budget of more than $20 billion, 
directs the activities of more than 123,000 attorneys, investigators, 
Border Patrol agents, deputy marshals, correctional officers, other 
employees, in more than 2,700 Justice Department facilities around the 
country, actually more than 124 in foreign cities. The Attorney General 
supervises the selection and the actions of 93 U.S. attorneys and their 
assistants and the U.S. Marshals Service and its offices in each State. 
The Attorney General supervises the FBI and its activities around the 
world and in this country, as well as the INS, the DEA, the Bureau of 
Prisons, and a whole lot of other Federal law enforcement departments.
  The Attorney General evaluates judicial candidates, recommends 
judicial nominees to the President, advises on the constitutionality of 
bills and laws. The Attorney General determines when the Federal 
Government is going to sue an individual or a business or even a local 
government. The Attorney General decides what statutes to defend in 
court, what arguments to make to the Supreme Court or other Federal 
courts, even State courts, on behalf of the U.S. Government.
  As I said at the confirmation hearings for Edwin Meese to be Attorney 
General, while the Supreme Court has the last word in what our laws 
means, the Attorney General, more importantly, has the first word.
  The Attorney General exercises broad discretion--in fact, most of 
that discretion is not even reviewed by the courts; one might say it is 
very rarely and then only sparingly reviewed by the Congress--over how 
to allocate that $20 billion budget, then how to distribute billions of 
dollars a year in law enforcement assistance to State

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and local governments, and coordinate task forces on important law 
enforcement priorities. These are the priorities the Attorney General 
sets.
  The Attorney General makes the decision when not to bring prosecution 
as well as when to bring prosecution, when to settle a case and when to 
go forward with a case. Having been a prosecutor, I know these are the 
decisions that can set policy more than anything that a Governor or a 
President or Member of Congress might do. A willingness to settle 
appropriate cases once the public interest has been served rather than 
to pursue endless and divisive and expensive appeals, as John Ashcroft 
did in the Missouri desegregation cases, is a critical qualification 
for the job.
  There is no appointed position within the Federal Government that can 
affect more lives in more ways than the Attorney General. No position 
in the Cabinet is more vulnerable to politicization by one who puts 
ideology and politics above the law. We should expect --all of us, not 
just 100 Senators but 280 million Americans--to have an Attorney 
General who will ensure evenhanded law enforcement and equal justice 
for all, protection of our basic constitutional rights to privacy, 
including a woman's right to choose and our rights to free speech and 
to freedom from government oppression. We look to the Attorney General 
to safeguard our marketplace from predatory and monopolistic activities 
and to protect our air and our water and our environment.
  The Attorney General, among all the members of the President's 
Cabinet, is the officer who must be most removed from politics, if he 
is going to be effective and if he is going to fulfill the duties of 
that office.
  Now, I have a deep and abiding respect for the Senate and its vital 
role in our democratic government. Twenty-six years in the Senate have 
given me the privilege to know and work with hundreds of others in this 
body. I cherish those friendships, and not only the friendships of the 
other 99 Senators here today, but the others I have served with over 
two-and-a-half decades. But far beyond friendship, my first duty as a 
U.S. Senator from Vermont is to the Constitution. I have sworn to 
uphold the Constitution.
  In the aftermath of the national election in November, I have gone 
back to that Constitution many times. This weekend, I re-read the 
appointments clause.
  I cannot give consent to the nomination of John Ashcroft to be 
Attorney General and thus be true to my oath of office. I do not have 
the necessary confidence that John Ashcroft can carry on the great 
tradition and fulfill the important role of Attorney General of the 
United States.
  The American people certainly are not united in any such confidence. 
This nomination does not help President Bush to fulfill his pledge to 
unite the Nation.
  I will vote no when the Senate is asked to give its advice and 
consent to the nomination of John Ashcroft to be Attorney General of 
the United States.
  To further elaborate, Mr. President, the week before the Inauguration 
of the new President, the Senate Judiciary Committee conducted three 
days of hearings over four days on the nomination of former Senator 
John Ashcroft to be the next Attorney General of the United States. We 
heard not only from the nominee but also from thirteen witnesses called 
on his behalf and thirteen witnesses who opposed his nomination. While 
a number of my colleagues, most notably the entire Republican caucus, 
expressed support for this nomination before the hearing, I declined to 
pre-judge the nominee until I had heard his testimony and that of other 
witnesses, and reviewed their responses to follow-up written questions. 
I rise today to express my opposition to this nomination.
  The Appointments Clause of the Constitution gives the Senate the duty 
and responsibility of providing its advice and consent. The 
Constitution is silent on the standard that Senators should use in 
exercising this responsibility. This leaves to each Senator the task of 
figuring out what standard to apply and, most significantly, leaves to 
the American people the ultimate decision whether they approve of how a 
Senator has fulfilled this constitutional duty.
  Many of us believe that the President has a right to appoint to 
executive branch positions those men and women whom he believes will 
help carry out his agenda and policies. Yet, the President is not the 
sole voice in selecting and appointing officers of the United States. 
The Senate has an important role in this process. It is advise and 
consent, not advise and rubberstamp. The Senate has a duty to take this 
constitutional function seriously.
  There was a time, of course, when ``senatorial courtesy'' meant 
cursory attention to former members of this body. Senators nominated to 
important government positions did not even appear before Committees 
for hearings. Certainly, the Senate was and should continue to be 
courteous to all nominees, but we should not use a double standard for 
members who have not been re-elected to the Senate. No one nominated to 
be Attorney General should be treated specially either favorably or 
unfavorably just because he once served in the Senate. The fact that 
many of us served with, know and like John Ashcroft does not excuse the 
Senate from faithfully carrying out its constitutional responsibility 
with regard to this nomination. Our constitutional duty rather than any 
friendship for Senator Ashcroft must guide us in the course of these 
proceedings and on the final vote on his nomination.
  This is especially the case in these times when the new President is 
emerging from a disputed election that was decided after vote counting 
in Florida was ordered to stop through the intervention of the U.S. 
Supreme Court. The resolution of this election remains a source of 
public concern and sharp division in our country, reflected in a deeply 
divided electorate and demands from all sides for bipartisan 
leadership.
  These are not auspicious beginnings for a new Administration and this 
nomination has been a troubling signal. John Ashcroft has taken 
aggressively activist positions on a number of issues on which the 
American people feel strongly and on which they are deeply divided. On 
several of those issues, such as his lifelong opposition to a woman's 
right to choose and support for measures to criminalize abortion, even 
in cases of rape and incest, and to limit access to widely-used 
contraceptives, he is far outside the mainstream.
  The President has said his choice is based on finding someone who 
will enforce the law, but we need more than airy promises on this score 
to vest the extensive authority and important role of the Attorney 
General in John Ashcroft. His assurances that he would enforce the law 
cannot be the end of our inquiry, as some would urge. The heart of the 
Attorney General's job is to exercise discretion in deciding how and to 
what extent the law should be enforced, and what the Government will 
say it means.
  The essence of prosecutorial discretion is that some laws get 
enforced more aggressively than others, some missions receive priority 
attention and some do not. No prosecutor's office--unless you are an 
independent counsel--has the resources to investigate every lead and 
prosecute every infraction. A prosecutor may choose to enforce those 
laws that promote a narrow agenda or ones that protect people's lives 
and neighborhoods. We need an Attorney General who has the full trust 
and confidence of the people that the laws will be enforced fairly and 
across the board, and that any changes the Attorney General will seek 
legislatively or in defining critical constitutional rights before the 
U.S. Supreme Court will be for the benefit of all Americans and reflect 
the mainstream of our values.
  John Ashcroft's unyielding and intemperate positions on many issues 
raise grave doubts in my mind both about how he will interpret the oath 
he would take as Attorney General to enforce the laws and uphold the 
Constitution, and about how he will exercise the enormous discretionary 
power of that office. Let me be clear: I am not objecting to this 
nominee simply because I disagree with him on ideological grounds.

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  My conclusion is based upon a review of John Ashcroft's record as the 
Attorney General of Missouri and then Governor, as a United States 
Senator, and his testimony before the Judiciary Committee. That is to 
say, it is based on how he has conducted himself, and what positions he 
has taken, while serving in high public office and while sworn to 
uphold the Constitution. Let me give some specific examples.
  As Governor, John Ashcroft vetoed two bipartisan bills that would 
have made it easier to register voters in the City of St. Louis, a city 
with a very substantial African-American population. These bills would 
have directed election authorities to allow outside groups, such as the 
League of Women Voters, to register voters. They were designed to 
rectify an imbalance between St. Louis County, a predominantly white 
area where outside groups were allowed to register voters, and St. 
Louis City, whose election commissioners (appointed by John Ashcroft) 
forbade the practice. Due in large part to that imbalance, only 73 
percent of St. Louis City residents were registered to vote, while 81 
percent of County residents were registered. (St. Louis Post-Dispatch, 
February 2, 1989). Faced with an opportunity to correct that imbalance, 
however, Governor Ashcroft refused. He vetoed one bill that dealt 
specifically with the St. Louis City Election Board, claiming it was 
unfair to single out one region for this requirement. The following 
year, the legislature addressed that criticism and passed a bill that 
pertained to the entire state. Nonetheless, Governor Ashcroft vetoed it 
again. (New York Times, January 14, 2001).
  This opposition to legislation that would have ensured that black and 
white voters were treated equally in Missouri is all the more 
disturbing in light of the serious charges that have arisen in the wake 
of the Florida vote in the presidential election. It is critical that 
our new Attorney General have a sterling record on voting rights 
issues.
  Neither Senator Ashcroft's handling of this matter as Governor nor 
his response to the Committee's questions about it inspire confidence. 
Indeed, it was distressing that Senator Ashcroft, when given the chance 
to explain his actions, chose to engage in an apparent ``filibuster'' 
by reading his entire veto messages, which were neither concise nor 
responsive to the questions he was asked. As a result, the time of his 
questioner expired and Senator Ashcroft was able to avoid confronting 
this issue fairly and completely.
  Set against John Ashcroft's questionable record on voting rights 
issues, his record while he served as Attorney General and Governor of 
Missouri on fighting a voluntary desegregation plan for the St. Louis 
school system is particularly troublesome. My concern is not merely 
that he fought a voluntary desegregation plan, since I can well 
appreciate the volatility of using busing to achieve equal educational 
opportunity. My concern is over the manner in which he aggressively 
fought this voluntary plan, the defiance he showed to the courts in 
those proceedings and his use of that highly-charged issue for 
political advantage rather than for constructive action. Most 
significantly, on at least four crucial points, the testimony he gave 
to the Committee about this difficult era in Missouri's history was 
incomplete and misleading, which he essentially conceded when I 
corrected the record on the second day of the hearing.
  First, Senator Ashcroft repeatedly claimed during the first day of 
his testimony that the state was not a party to the lawsuit brought to 
desegregate the schools in St. Louis. He testified, in response to my 
questions that ``the state had never been a party to the litigation.'' 
(1/16/01 Tr., at p. 101). He repeated this assertion that the state was 
not a party to the litigation, stating, ``if the state hadn't been made 
a party to the litigation and the state is being asked to do things to 
remedy the situation, I think it's important to ask the opportunity for 
the state to have a, kind of, due process, and the protection of the 
law that an individual would expect,'' (Id., at p. 101).
  Yet, Missouri was, indeed, made a party to the St. Louis lawsuit in 
1977, the year after Ashcroft took over as the state's Attorney 
General. See Adams v. United States, 620 F.2d 1277,1285 (8th Cir.), 
cert. denied, 449 U.S. 826 (1980). I pointed out this fact at the 
outset of the second day of the hearings. (1/17/01 Tr., at p. 2-3), and 
Senator Ashcroft thanked me for the opportunity to clarify the record. 
(Id., at 2-3).
  Second, Senator Ashcroft also repeatedly claimed in his testimony 
that the state was not liable. He testified that ``I opposed a mandate 
by the federal government that the state, which had done nothing wrong, 
found guilty of no wrong, that they should be asked to pay . . .'' (1/
16/01 Tr., at p. 100). Again, he testified ``the state had not been 
found really guilty of anything.'' (Id.). He explained that ``I argued 
on behalf of the state of Missouri that it could not be found legally 
liable for segregation in St. Louis schools because the state had never 
been party to the litigation.'' (Id.). He further explained, ``Frankly, 
I thought the ruling by the court that the state would have to pay when 
there was not showing of a state violation to be unfair.'' (Id. at p. 
101). He maintained this position in response to questions by Senator 
Kennedy and testified that segregation in St. Louis ``was not a 
consequence of any state activity.'' (Id., at p. 123).
  In fact, however, the state was found directly liable for illegal 
school segregation in St. Louis. In March 1980, the Eighth Circuit 
ruled that both the state and the city school board were liable for 
segregation. Adams v. United States, 620 F.2d 1277, 1280, 1291, 1294-95 
(8th Cir.), cert. denied, 449 U.S. 826 (1980). The state's improper 
conduct included previously mandating, over a period of years, the 
inter-district transfer of black students into segregated city schools 
to maintain segregation. Id. at 1280. In other words, when Senator 
Ashcroft testified that the State ``had not been found really guilty of 
anything,'' the fact was that it had been found guilty of imposing 
forced busing on African-Americans in order to segregate them. And the 
``mandate by the federal government'' that he opposed was a mandate to 
remedy the State's own flagrant violation of Brown v. Board of 
Education.
  In June 1980, the district court made clear the state's liability, 
explaining that ``the State defendants stand before the Court as 
primary constitutional wrongdoers who have abdicated their remedial 
duty. Their efforts to pass the buck among themselves and other state 
instrumentalities must be rejected.'' Liddell et al. v. Bd. of Ed. of 
City of St. Louis, 491 F. Supp. 351, 357, 359 (E.D. Mo. 1980), aff'd 
667 F.2d 643 (8th Cir.), cert. denied, 454 U.S. 1081 (1981). Attorney 
General Ashcroft appealed this liability finding, but the Eighth 
Circuit rejected his argument as ``wholly without merit.'' Liddell, 
supra, 667 F.2d at 655. The U.S. Supreme Court denied the state's 
attempt to appeal the decision. 454 U.S. 1081, 1091 (1981).
  Again, in 1982, the Eighth Circuit reiterated that the state 
defendants were ``primary constitutional wrongdoers'' that could be 
ordered to take remedial action. Liddell, 677 F.2d 626, 628-29, (8th 
Cir.), cert. denied 459 U.S. 877 (1982). The U.S. Supreme Court again 
denied the state's attempted appeal.
  Yet again, as his attorney general term was ending in 1984, the 
Eighth Circuit rejected the state's arguments against voluntary city-
suburb desegregation, and the Supreme Court again denied review. 
Liddell, 731 F.2d 1294, 1305-9 (8th Cir.), cert. denied, 469 U.S. 816 
(1984).
  I pointed out the multiple findings of state liability by the federal 
courts at the outset of the second day of the hearing, and Senator 
Ashcroft conceded the accuracy of that correction. (1/17/01 Tr., at p. 
2-3). It is a shame, indeed, that he only acknowledged the settled law 
of the case 20 years after the courts decided it.
  Third, Senator Ashcroft testified that in the St. Louis case, ``[i]n 
all of the cases where the court made an order, I followed the order, 
both as attorney general and as governor.'' (1/16/01 Tr., at p. 125-
126). He repeated this claim in response to questions from

[[Page 720]]

Senator Hatch, stating that ``we complied with the orders of the 
federal district court and of the Eighth Circuit court of appeals and 
of the United States Supreme Court.'' (1/17/01 Tr., at p. 197).
  While as attorney general, John Ashcroft may have complied with the 
technical terms of the court orders, his vigorous and repeated appeals 
show that he did so reluctantly and the scathing criticism he received 
from the courts shows that they lacked confidence in how he was 
fulfilling his obligations as an officer of the court. This is 
troubling. In 1981, the federal district court ordered the state and 
the city board to submit voluntary desegregation plans, but attorney 
general Ashcroft failed to comply. Consequently, the court threatened 
in March 1981 to hold the state in contempt if it did not meet the 
latest deadline and explicitly criticized the state's ``continual delay 
and failure to comply'' with court orders. (AP 3/5/81). The court also 
stated the following: ``The court can draw only one conclusion--the 
state has, as a matter of deliberate policy, decided to defy the 
authority of the court.''(St. Louis Post-Dispatch 3/5/81). The district 
court also stated in a 1984 order, ``if it were not for the state of 
Missouri and its feckless appeals, perhaps none of us would be here 
today'' (St. Louis Post-Dispatch, December 30, 1984).
  Fourth, Senator Ashcroft denied that he ``opposed voluntary 
desegregation of the schools'' and said ``nothing could be farther from 
the truth.'' (1/16/01 Tr., at p. 99). He asserted that ``I don't oppose 
desegregation'' and that ``I am in favor of integration,'' and only 
opposed the State being asked to pay this very substantial sum of money 
over a long course of years.'' (Id., at p. 101).
  I take Senator Ashcroft at his word that he supports integration. 
This only makes more disturbing his public statements made in the heat 
of political campaigns that exacerbated an already difficult situation 
over desegregation in Missouri schools. In 1981, he opposed a plan by 
the Reagan administration for voluntary desegregation, based not just 
on cost but also because it would allegedly attract ``the most 
motivated'' black city students, even though the city school board 
itself disagreed. (Newsweek, May 18, 1981). I cannot understand how 
John Ashcroft, leading advocate of vouchers to facilitate ``parental 
choice'' for those motivated to leave the public school system, could 
at the same time oppose the parental choice involved in voluntary 
school desegregation for ``motivated'' African-Americans. In 1984, he 
assailed the St. Louis desegregation plan as an ``outrage against human 
decency.'' (St. Louis Post-Dispatch, June 15, 1984). In his 1984 
gubernatorial campaign, he proudly stated that he had done ``everything 
in his power legally'' to fight the plan and suggested that listeners 
should ``[a]sk Judge (William) Hungate who threatened me with 
contempt.'' (UPI, February 12, 1984).
  Commentators at the time were critical of John Ashcroft's use for 
political gain of the difficult challenges of desegregating the 
schools. For example, the Post-Dispatch commented that Ashcroft and his 
Republican gubernatorial primary opponent in 1984 were ``trying to 
outdo each other as the most outspoken enemy of school integration in 
St. Louis,'' and were ``exploiting and encouraging the worst racist 
sentiments that exist in the state.'' (St. Louis Post-Dispatch, March 
11, 1984). An African-American newspaper, the St. Louis American, had 
even harsher words for Ashcroft. ``Here is a man who has no compunction 
whatsoever to standing on the necks of our young people merely for the 
sake of winning political favor,'' it wrote. ``Ashcroft implies at 
every news conference, radio and television interview that he couldn't 
care less what happens to black school children.'' (St. Louis Post-
Dispatch, February 29, 1984).
  Finally, during the course of the hearing, Senator Ashcroft tried to 
deflect any criticism of his own actions over desegregation by trying 
to blame others. Specifically, he twice cited in his oral testimony and 
again in his responses to written questions, an incident ``when the 
state treasurer balked at writing the checks'' and ``it became 
necessary to send a special delegation from my office to him to 
indicate to him that we believed compliance with the law was the 
inescapable responsibility . . . fortunately, the state treasurer at 
the time made the decision to abandon plans for a separate counsel and 
to go ahead and make the payments.'' (1/17/01 Tr., at p. 196; see also 
1/16/01 Tr., at p. 100-103).
  The treasurer to whom Senator Ashcroft referred was the late Mel 
Carnahan. As I clarified on the record, treasurer Carnahan faced 
personal liability for making a payment without the warrant of the 
commissioner of administration of the state of Missouri and properly 
issued the check as soon as he had the appropriate legal authority to 
do so. (1/18/01 Tr., at p. 130). In other words, Mel Carnahan did not, 
as Senator Ashcroft implied, seek to defy the court's order; he merely 
made sure that legally mandated procedures for complying with that 
order were followed. The insinuation that Mel Carnahan was the obstacle 
to desegregating Missouri's schools is false and reprehensible. 
Governor Carnahan is rightly credited with bringing this lengthy 
litigation to a close and fashioning progressive, bipartisan 
legislation to appropriate funds sufficient for a remedy and allowing 
the court to withdraw from active supervision of the case.
  In my view, Senator Ashcroft's thinly-veiled disparaging testimony 
about his deceased political opponent were mean and offensive.
  In his written response to questions from Senator Kennedy, Senator 
Ashcroft presents his role in the desegregation case as simply an 
attempt to oppose interdistrict remedies, not intradistrict remedies. 
This is the same argument he made as Attorney General to justify 
bringing appeals from desegregation orders in 1981, 1982, and 1984. As 
explained above, the courts repeatedly rejected this argument. It 
should be noted in this regard that John Ashcroft did not merely appeal 
those orders that imposed interdistrict remedies--he also appealed 
orders mandating that the State aid in making improvements within St. 
Louis itself, and orders that simply told the State to enter into 
discussions concerning the possibility of interdistrict cooperation. 
See, e.g., Liddell v. Board of Education, 667 F.2d 643. It should also 
be noted that the courts found that Missouri was constitutionally 
responsible for segregation in St. Louis in part because it mandated 
the transfer of black suburban students into segregated city schools to 
enforce segregation. Liddell v. Bd. of Educ., 491 F. Supp. 351, 359 
(E.D. Mo. 1980).
  Ignorance Is His Defense--Southern Partisan and Bob Jones University. 
Senator Ashcroft's record on the racially-charged issues of voting 
rights and desegregation make more worrisome his explanations for and 
associations with Southern Partisan magazine and Bob Jones University. 
In short, his explanation is ignorance.
  In 1998, Senator Ashcroft gave an interview to the Southern Partisan, 
a magazine which has gained a reputation for espousing racist views due 
to its praise in past articles of such figures as former KKK leader 
David Duke and its defense of slave-holders. At the hearing, Senator 
Biden asked Senator Ashcroft about this interview and his association 
with this publication. Senator Ashcroft disavowed any knowledge about 
the publication or its reputation. He said, ``On the magazine, frankly, 
I can't say that I knew very much at all about the magazine. I've given 
magazine interviews to lots of people. . . . I don't know if I've ever 
read the magazine or seen it'' (1/17/01 Tr., p. 146). He told Senator 
Feingold that he thought the magazine was ``a history journal.'' (Id., 
at 219).
  Yet, it is difficult to square Senator Ashcroft's quoted remarks in 
the Southern Partisan interview with his purported ignorance about the 
publication. He praised the magazine, saying ``Your magazine also helps 
to set the record straight'' on what he called ``attacks the 
[historical] revisionists have brought against our founders.'' He added 
even more praise, saying, ``You've got a heritage of doing that, of 
defending Southern patriots like Lee,

[[Page 721]]

Jackson and Davis.'' Southern Partisan, at 28 (2d Quarter, 1998). It is 
difficult to reconcile Senator Ashcroft's testimony not to have known 
``very much at all'' about the magazine with his own statements in the 
interview praising its ``heritage.'' Indeed, he subsequently admitted 
that ``I know they've been accused of being racist.'' (1/17/01 Tr., p. 
152).
  Putting that aside, however, I find it more troubling that despite 
the multiple opportunities he was given to distance himself from this 
magazine and evidence regret for giving the interview, he refused to do 
so. Instead, he responded with a platitude saying, ``I condemn those 
things which are condemnable.'' (Id., at 147). We need more than 
platitudes from the next Attorney General. He made clear that what he 
mostly regretted is that this interview became an issue, saying: ``And 
I regret that speaking to them is being used to imply that I agree with 
their views.'' (1/17/01 Tr., p. 146). Would it really hurt him to say, 
``I made a mistake. It's an obnoxious publication and its positions are 
offensive"? It troubles me to see a public official going around 
applauding racially offensive institutions, and it troubles me even 
more to see him refusing to admit his mistakes and try to heal the 
offense.
  The same claim of ignorance was Senator Ashcroft's excuse for 
accepting a speaking engagement and an honorary degree from Bob Jones 
University. This school is not accredited. It did not admit African 
American students until 1971. Then, from 1971 to May 1975, the 
University accepted no applications from unmarried African American 
students, but did accept applications from African Americans ``married 
within their race.'' Bob Jones University v. U.S., 461 U.S. 574 (1983). 
Even after it lost its tax exempt status in the mid-1970's, Bob Jones 
University maintained a ban on interracial dating. This policy changed 
on March 3, 2000, when Bob Jones announced on Larry King Live that the 
policy was dropped after an outcry over the visit to the University by 
then candidate, now President Bush.
  The school, however, continues to discourage interracial dating. 
After announcing that the school would drop the interracial dating ban, 
Bob Jones told the student body at their daily chapel service the 
following day that they must tell their parents if they became involved 
in an interracial relationship and parents must send a letter to the 
dean of men or women approving the relationship before the university 
would allow it. Two days later, he announced that the school would drop 
the parental permission requirement but that students who wanted to 
engage in ``serious dating relationships'' against their parents' 
approval would be referred to counseling by the university. That is 
mandatory special ``counseling'' for adults engaged in interracial 
dating in the year 2001. That is a disgrace to our nation and all that 
we stand for.
  As recently as March 2000, Bob Jones, the leader of the school, made 
clear on national TV that he views the Pope as the ``anti-Christ'' and 
both Catholicism and Mormonism as ``cults.'' Senator Ashcroft claimed 
that he did not know about the school's beliefs at the time he spoke. 
(St. Louis Post-Dispatch, March 3, 2000). Yet, when he spoke to the 
students at Bob Jones University, he appeared to condone the policies 
of the school from which they were graduating by thanking each of them 
``for preparing themselves in the way that you have.''
  His assertion of ignorance was once again met with some skepticism, 
as even the press pointed out that ``he was attorney general [of 
Missouri] when the U.S. Supreme Court denied the university's tax 
exempt status, and was governor when a state Supreme Court candidate 
ignited a controversy with pro-Bob Jones statements in 1992.'' (Id.). 
Specifically, in 1992, then Governor Ashcroft considered appointing 
Carl Esbeck to fill, at the time, the seventh and last open seat on the 
Missouri Supreme Court, but this proposed nomination proved 
controversial due to Esbeck's criticism of the U.S. Supreme Court's 
ruling that Bob Jones University was not entitled to tax-exempt status 
due to its discriminatory practices. (St. Louis Post-Dispatch, August 
6, 1992). Having seen the offense caused by his own efforts to appoint 
a judge who had been supportive of Bob Jones University in 1992, one 
might have expected Senator Ashcroft to be more sensitive, and more 
cautious about accepting an honorary degree from the same institution 
seven years later.
  Again, as with the Southern Partisan interview, Senator Ashcroft has 
never apologized for accepting an honorary degree from this school or 
for associating with it. Instead, during his unsuccessful Senatorial 
campaign, in response to his opponent's challenge to take this action, 
Senator Ashcroft ``fired a puzzling return volley, saying he will give 
back all his degrees if Mr. Carnahan will return campaign contributions 
from pro-choice groups.'' (St. Louis Post-Dispatch, March 3, 2000). If 
Senator Ashcroft believes that support for Roe v. Wade is on a moral, 
legal, or political par with racial bigotry and the demonization of the 
Catholic and Mormon Churches, he is further out of the mainstream than 
I thought. If not, he missed a major opportunity to heal an offense for 
a great many Americans with an evasive and irrelevant response.
  By contrast, after then candidate, now President Bush spoke at Bob 
Jones University in February 2000, he expressed regret for the 
appearance, in recognition of the ``anti-Catholic and racially divisive 
views'' associated with that school. Another Republican colleague, who 
also received an honorary degree from Bob Jones University, 
Representative Asa Hutchinson, later took a public step to disassociate 
himself from the school, calling the school's policies 
``indefensible.'' (New York Times, March 1, 2000).
  Senator Ashcroft apparently has no regrets about accepting an 
honorary degree from Bob Jones University. On the contrary, Senator 
Ashcroft made clear in response to questions from both Senator Durbin 
and Senator Feinstein that he would consider a repeat visit to Bob 
Jones University as U.S. Attorney General. (1/17/01 Tr., pp. 237, 243). 
Senator Durbin asked, ``you would not rule out, as attorney general of 
the United States, appearing at that same school?'' Senator Ashcroft 
responded, ``Well, let me just say this, I'll speak at places where I 
believe I can unite people and move them in the right direction.'' (Id. 
at p. 237). Senator Feinstein asked ``In six months, you receive an 
invitation from Bob Jones University. You now know about Bob Jones 
University. Do you accept that invitation?'' Senator Ashcroft indicated 
that, ``it depends on what the position of the university is; what the 
reason for the invitation is,'' but the short answer is ``I don't want 
to rule out that I would ever accept any invitation there.'' (Id., at 
p. 243).
  This response was dismaying for a man who seeks the post of lawyer 
and advocate for all the people of this country. During the hearing, I 
suggested that he ``put that honorary degree in an envelope and send it 
back and say this is your strongest statement about what you feel about 
the policies.'' (Id., at p. 262). Maybe at a minimum he could send it 
back with a statement that he will consider associating with Bob Jones 
University again if and when the school publicly disavows all of its 
racially and religiously offensive positions. That, at least, would be 
better than hanging a degree from an infamous bastion of discrimination 
on the walls of the Attorney General's office. Ignorance is a weak 
defense for associating with institutions that notoriously espouse 
racially insensitive and discriminatory philosophies and policies. An 
inability to recognize one's mistakes, and to acknowledge the 
sensitivities of others, is a serious flaw in a man who would be the 
Attorney General of all the people.
  Finally, despite the deep concern about his judgment in appearing at 
Bob Jones University, Senator Ashcroft has been less than forthright 
with the Committee. During my short tenure as Chairman of the 
Committee, I asked him personally for a copy of his commencement 
address, in whatever form it was in, at a meeting on January 4, 2001. I 
then wrote to Vice President Cheney, as head of the transition office, 
twice requesting copies of any

[[Page 722]]

tape recordings or transcriptions of that speech. In my January 11 
letter, I reported that Bob Jones University advised my staff a tape 
was available but would not be released without Senator Ashcroft's 
permission and specifically requested ``a tape of the commencement 
ceremony in May, 1999, in which Senator Ashcroft participated.'' The 
next day, Senator Ashcroft furnished the Committee with a transcription 
of the speech, on the same day the videotape of Senator Ashcroft's 
speech was broadcast on Larry King Live. This videotape has never been 
provided to the Committee. Moreover, the Committee's request for the 
videotape of the entire commencement proceeding remains unanswered.
  Senator Ashcroft proudly told Southern Partisan magazine that ``I 
have been as critical of the courts as any other individual, probably 
more than any other individual in the Senate. I have stopped judges . . 
. and I will continue to do so.'' In fact, he led the Senate in the 
politics of personal destruction by distorting the records of 
presidential nominees whose political ideologies or ``lifestyles'' he 
disliked.
  Let me start with a review of how Senator Ashcroft worked to block 
the nomination of James C. Hormel to be the Ambassador to Luxembourg, 
and then how he explained his actions before the Committee on January 
17, 2001.
  Ambassador Hormel had a distinguished career as a lawyer, a 
businessman, educator, and philanthropist. He had diplomatic experience 
as well. He was eminently qualified for the job of U.S. Ambassador to 
Luxembourg, Luxembourg's ambassador to the U.S. said the people of his 
country would welcome him, and a clear majority of Senators supported 
his confirmation.
  Yet he was denied a Senate debate and vote. Senator Ashcroft and 
Senator Helms were the only two members of the Foreign Relations 
Committee who voted against favorably reporting the nomination of James 
Hormel to serve as U.S. Ambassador to Luxembourg.
  In June 1998, at a luncheon with reporters, Senator Ashcroft is 
reported to have said:

       People who are nominated to represent this country have to 
     be evaluated for whether they represent the country well and 
     fairly. His conduct and the way in which he would represent 
     the United States is probably not up to the standard that I 
     would expect. He has been a leader in promoting a lifestyle. 
     And the kind of leadership he's exhibited there is likely to 
     be offensive to . . . individuals in the setting to which he 
     will be assigned. Boston Globe (June 24, 1998).

  Senator Ashcroft also said that a person's sexual conduct ``is within 
what could be considered and what is eligible for consideration'' for 
ambassadorial nominees. (San Diego Union-Tribune June 19, 1998). The 
implication of these remarks seems clear to me. But do not rely on my 
judgment. Listen instead to one of Senator Ashcroft's Republican 
colleagues of the time, Senator Alphonse D'Amato. Senator D'Amato 
wrote, in a letter to Majority Leader Trent Lott, that he was 
``embarrassed" that Hormel's nomination had been held up by other 
Republican Senators. He wrote, ``I fear that Mr. Hormel's nomination is 
being obstructed for one reason, and one reason only: the fact that he 
is gay.'' (Id.)
  When I questioned him at the hearing about his remarks at the 1998 
luncheon, Senator Ashcroft did not deny making them. Instead, he asked 
us to ignore their clear import. I asked him directly: ``Did you block 
his nomination from coming to a vote because he is gay?'' Senator 
Ashcroft answered, ``I did not.'' I then asked ``Why did you vote 
against him? And why were you involved in an effort to block his 
nomination from ever coming to a vote?'' Senator Ashcroft implicitly 
acknowledged that he did engage in blocking the nomination from coming 
to a vote, saying,

       Well, frankly, I had known Mr. Hormel for a long time. He 
     had recruited me, when I was student in college, to go to the 
     University of Chicago Law School. . . . But I did know him. I 
     made a judgment that it would be ill-advised to make him 
     ambassador based on the totality of the record. I did not 
     believe that he would effectively represent the United States 
     in that particular post. (1/17/01 Tr., p.191).

  Senator Ashcroft then proceeded to claim, without directly addressing 
the Hormel nomination, that ``[s]exual orientation has never been 
something that I've used in hiring in any of the jobs, in any of the 
offices I've held. It will not be a consideration in hiring at the 
Department of Justice. It hasn't been for me.'' (Id, at 192).
  I brought Senator Ashcroft back to the question of why he had opposed 
James Hormel's nomination. I said: ``I'm not talking about hiring at 
the department, I'm talking about this one case, James Hormel. If he 
had not been gay, would you have at least talked to him before you 
voted against him? Would you have at least gone to the hearing? Would 
you have at least submitted a question?'' (Id.) When evasion did not 
work, Senator Ashcroft simply flatly refused to answer, stating, ``I'm 
not prepared to redebate that nomination here today,'' and repeated his 
claim that his opposition to the Hormel nomination was based on ``the 
totality of his record.'' (Id, at 192-193). Three Senators asked the 
nominee in written questions to specify the factors that led to his 
opposition to James Hormel, but he continued to refuse to do so, citing 
again ``the totality of Mr. Hormel's record'' as the basis for his 
opposition.
  The story does not end there. The implication of Senator Ashcroft's 
remarks what some have called ``creepy'' about being ``recruited'' by 
and ``knowing'' Mr. Hormel was that some personal experience with that 
nominee played a role in his decision to block it. (New York Times, 
January 20, 2001). Yet, by letter dated January 18, 2001, Mr. Hormel 
expressed ``very deep concern'' about this implication since he could 
not recall ``ever having a personal conversation with Mr. Ashcroft,'' 
``no contact with him of any type since . . . nearly thirty-four years 
ago, in 1967.'' Mr. Hormel also clarified that he did not personally 
``recruit'' John Ashcroft to law school; he had simply admitted him, 
along with hundreds of other students, in his capacity as Dean of 
Students. Mr. Hormel concluded, ``For Mr. Ashcroft to state that he was 
able to assess my qualifications to serve as Ambassador based upon his 
personal long-time relationship with me is misleading, erroneous, and 
disingenuous.''
  I am forced to agree with Mr. Hormel's assessment. There certainly 
still has not been any forthright explanation from Senator Ashcroft for 
his insistence that, contrary to the views of the President, the 
Ambassador from Luxembourg, and the vast majority of his Senate 
colleagues, Mr. Hormel would not ``effectively represent the U.S.'' in 
Luxembourg. Indeed, given another chance to explain his position 
through responses to written questions, Senator Ashcroft has simply 
repeated his boilerplate language about the ``totality'' of Mr. 
Hormel's record, adding no specificity beyond the fact that Luxembourg 
is ``the most Roman Catholic country in all of Europe.'' He does not 
explain the significance of this fact.
  At the hearing, Senator Feingold asked Senator Ashcroft whether, as 
Attorney General, he would permit employment discrimination against gay 
men and lesbians, pointing in particular to Senator Ashcroft's public 
statement that ``I believe the Bible calls [homosexuality] a sin, and 
that's what defines sin for me.'' Senator Feingold stated that 
``Attorney General Reno clarified that sexual orientation should not be 
a factor for FBI clearances.'' Then he asked Ashcroft, ``As attorney 
general would you continue and enforce this policy?'' Again, Senator 
Ashcroft did not answer the question directly with a clear statement 
against discrimination based on sexual orientation at the FBI, saying, 
``I have not had a chance to review the basis for the FBI standard and 
I am not familiar with it. I would evaluate it based upon conferring 
with the officials in the bureau.'' In my view, the American people are 
entitled to expect from their Attorney General more forthright and 
decisive leadership on the simple question of whether the FBI will be 
permitted to discriminate on the basis of sexual orientation. The 
correct answer to that question is not ``maybe,'' it is ``no.''

[[Page 723]]

  This is troubling. Senator Ashcroft's answers raise serious question 
about whether he would adopt a policy as Attorney General that a 
person's sexual orientation could be a basis for denying a security 
clearance. If sexual orientation can be used to deny a security 
clearance for a government job, gay men and lesbians would be barred 
from numerous government positions, including in the Justice 
Department, as surely as if John Ashcroft, as Attorney General, were to 
exclude them personally.
  In October 1999, Senator Ashcroft spearheaded a campaign to defeat 
the nomination of Missouri Supreme Court Judge Ronnie White to serve as 
a federal district court judge. Like many Senators, I was deeply 
troubled by Senator Ashcroft's sneak attack on Judge White, who was the 
first nominee to a federal district court to be rejected on the floor 
of the Senate in over 50 years. Senator Ashcroft's testimony to the 
Committee did nothing to allay my concerns.
  There can be no serious question that Senator Ashcroft distorted 
Judge White's record. To give just one example, in one of the three 
opinions that Senator Ashcroft cited as supposed evidence of a 
``procriminal jurisprudence,'' Judge White took a narrower view of the 
Fourth Amendment--and a broader view of the powers of the police--than 
the U.S. Supreme Court took a few years later. That is to say, Senator 
Ashcroft characterized Judge White as ``procriminal'' for taking a 
position that was more pro-law enforcement than the position of a 
majority of the conservative Rehnquist Court.
  Senator Ashcroft has told us that he based his opposition to James 
Hormel and other nominees on ``the totality of the record.'' In the 
case of Judge White, the totality of the record was very different than 
what Senator Ashcroft led his colleagues to believe. While I state 
again and unequivocally that I do not charge Senator Ashcroft with 
racism, I cannot help but think that he was willing to play politics 
with Judge White's reputation in a manner that casts serious doubt on 
his ability to serve all Americans as our next Attorney General. In my 
mind, and in the minds of many Americans, he engineered a party-line 
vote to reject Judge White not because Judge White was unqualified, but 
because he wanted to persuade the voters of Missouri that John Ashcroft 
was tougher on crime and more pro-death penalty than his Democratic 
opponent. The voters saw through this ploy, and Senators should 
consider it carefully in deciding whether to give their consent to this 
nomination. In doing so, Senators may ask themselves whether a man who 
used his public office to besmirch a respected judge for crass 
political ends is the sort of man the American people deserve as their 
Attorney General.
  I want to discuss a few of the circumstances surrounding the White 
nomination that cause me particular concern.
  As an initial matter, I am disturbed by Senator Ashcroft's repeated 
claims that he torpedoed Judge White at the urging of law enforcement 
groups that had come forward to oppose the nomination. On the Senate 
floor, Senator Ashcroft told his colleagues that law enforcement 
officials in Missouri had ``decided to call our attention to Judge 
White's record in the criminal law.'' (Congressional Record, October 4, 
1999, at S11872). But after the Senate voted to reject the nomination, 
the press reported that Senator Ashcroft had actually solicited 
opposition to Judge White from at least some law enforcement officials. 
(St. Louis Post-Dispatch, October 8, 1999). This detail--who contacted 
whom came up at the hearing, and was at the center of more attempts by 
Senator Ashcroft to shade the facts.
  At the hearing, Senator Durbin noted while questioning Senator 
Ashcroft that the Missouri Chiefs of Police had refused to accept his 
invitation to oppose Judge White. Senator Ashcroft responded, ``I need 
to clarify some of the things that you have said. I wasn't inviting 
people to be part of a campaign.'' Senator Durbin followed up by 
asking, ``Your campaign did not contact these organizations?'' The 
nominee tried to side-step the issue by making a general statement 
rather than responding directly to the question he was asked. He said, 
``My office frequently contacts interest groups related to matters in 
the Senate. We don't find it unusual. It's not without precedent that 
we would make such a request to see if someone wants to make a comment 
about such an issue.''
  According to the St. Louis Post-Dispatch, Senator Ashcroft's office 
contacted at least two police groups with respect to Judge White 's 
nomination, and the contacts went well beyond a mere ``request to see 
if someone wants to make a comment.'' The president of the Missouri 
Police Chiefs Association--one of Missouri's largest police groups--
said that he was contacted by Senator Ashcroft's office and asked 
whether the Association would work against the nomination. The 
Association declined. Its president said that he knew Judge White 
personally and had always known him to be ``an upright, fine 
individual.'' (St. Louis Post-Dispatch, October 8, 1999.)
  According to the same article, Senator Ashcroft's office also 
solicited opposition to Judge White from the Missouri Federation of 
Police Chiefs. Vice President Bryan Kunze said the group got involved 
after Senator Ashcroft's office sent them information about the 
nomination. Kunze is quoted as saying ``I never heard of Judge White 
until that day.'' (Id.)
  What does this mean? It means that there was a simpler, and more 
direct answer to Senator Durbin's question: ``yes.'' Senator Ashcroft's 
office did contact law enforcement organizations. And it did so not 
just to ``see if'' they wanted ``to make a comment,'' but to solicit 
their opposition to Judge White. At a minimum, Senator Ashcroft shaded 
the truth when he suggested that his opposition to Judge White was 
prompted by the concerns of Missouri's law enforcement community. While 
some law enforcement officials eventually came to oppose Judge White's 
nomination, some of that opposition was instigated and orchestrated by 
Senator Ashcroft himself.
  Moreover, although Senator Ashcroft did not acknowledge the fact, 
many law enforcement officials strongly supported Judge White. At the 
hearing, I put into the record a strong letter of support and 
endorsement from the chief of police of the St. Louis Metropolitan 
Police Department for Judge White, which Senator Ashcroft received 
before the vote on Judge White's nomination. I also put into the record 
another letter from the Missouri State Lodge of the Fraternal Order of 
Police from shortly after the vote, stating on behalf of 4,500 law 
enforcement officers in Missouri that they viewed Judge White's record 
as, ``one of the judges whose record on the death penalty has been far 
more supportive of the rights of victims than the rights of 
criminals.'' Yet when Senator Ashcroft went to the floor of the Senate 
in October 1999 to disparage Judge White's record as ``procriminal,'' 
he gave a one-sided account, ignoring the law enforcement officials who 
had come out in support of Judge White's nomination or declined Senator 
Ashcroft's invitations to work against him.
  It is worth reviewing the history that led up to Senator Ashcroft's 
denouncement of Judge White on the floor, because that history sheds 
some light on the genesis of the supposed ``procriminal'' concerns. 
President Clinton first nominated Judge White in June 1997. Like many 
other judicial nominations during the Clinton Administration, the 
nomination was held in limbo for more than two years before the Senate 
finally voted on it in October 1999. During most of that time, there 
was no mention of Judge White's judicial record. Senator Ashcroft has 
said that he began to review Judge White's opinions ``upon his 
nomination'' (Congressional Record, October 4, 1999, at S11871), yet he 
did not elaborate on his reasons for opposing Judge White until August 
1999, when he told reporters that Judge White had ``a very serious bias 
against the death penalty.'' At the time, the death penalty was a hot 
issue in Senator Ashcroft's re-election campaign against the late

[[Page 724]]

Governor Carnahan, who had recently commuted the sentence of a death 
row inmate at the request of Pope John Paul II. It was Governor 
Carnahan who, in 1995, appointed Judge White to the Missouri Supreme 
Court.
  When Judge White came before the Judiciary Committee in May 1998, he 
was introduced by two members of Missouri's congressional delegation, 
Senator Bond and Congressman Clay. Both urged Judge White's 
confirmation. Congressman Clay also stated that he had discussed the 
nomination with Senator Ashcroft, and that Senator Ashcroft had polled 
Judge White's colleagues on the Missouri Supreme Court--all Ashcroft 
appointees--and they all spoke highly of Judge White and said he would 
make an outstanding federal judge. That was yet another set of 
endorsements for Ronnie White that Senator Ashcroft did not himself 
acknowledge when he spoke out on the nomination.
  After the hearing, Senator Ashcroft submitted 21 written questions to 
Judge White, 15 more than were submitted to the other nominees at the 
same hearing. Among those questions were two concerning an action--
neither an unlawful nor an unethical one--that Judge White had taken as 
a State legislator in 1992 that contributed to the defeat of an anti-
abortion bill supported by then-Governor Ashcroft. There was also one 
question about a death penalty case in which Judge White had written a 
lone dissent.
  When Senator Ashcroft joined a handful of Senators and voted against 
Judge White in Committee, he inserted a short statement in the 
Committee records on May 21, 1998, to explain his vote. Making 
reference to the anti-abortion bill that was the subject of those 
written questions, he said: ``I have been contacted by constituents who 
are injured by the nominee's manipulation of legislative procedures 
while a member of the Missouri General Assembly. This contributes to my 
decision to vote against the nomination.'' He made no mention of 
concern about any other issue, including the death penalty case about 
which he had also asked Judge White a written question. Apparently 
then, as of May 1998, Senator Ashcroft's investigations into Judge 
White's judicial record had not unearthed any ``procriminal'' concerns.
  Senator Ashcroft's testimony and answer to written questions that 
reproductive rights played no part in his opposition to Judge White is 
flatly contradicted by both the questions he asked about the judge as a 
state legislator calling ``an unscheduled vote that resulted in the 
defeat of a measure designed to limit abortions,'' and the statement 
Senator Ashcroft put in the Judiciary Committee mark up record in May 
1998, in which he referred to Judge White's ``manipulation of 
legislative procedures while he was a member of the Missouri General 
Assembly'' and expressly stating that ``contribute[d] to my decision.''
  This dissembling is disingenuous, but explains the troubling fact 
that Senator Ashcroft did not fully question Judge White about his 
death penalty decisions or law enforcement concerns at his hearings 
before the Judiciary Committee. That is the purpose of nomination 
hearings, as Senator Ashcroft well knows. At his own hearings, Senator 
Ashcroft was afforded a full and fair opportunity to answer questions 
and address concerns. Judge White did not have that opportunity. He was 
ambushed on the floor of the Senate, with no opportunity to explain his 
decisions or defend his reputation.
  Judge White finally got that opportunity during the hearings on this 
nominee, and I urge all Senators to read his testimony. He was 
gracious, he was dignified, and he set the record straight. This is 
what that record shows.
  Ronnie White grew up in a poor, segregated neighborhood in St. Louis. 
He worked his way through high school, college, and law school. He had 
a distinguished legal career in private practice and as city counselor 
for the City of St. Louis and lawyer for the St. Louis Police 
Department. In 1989 he was elected to the Missouri legislature, where 
he was twice selected to serve as chairman of the judiciary committee. 
In 1995, he became the first African-American to serve on the Missouri 
Supreme Court.
  The Facts on Judge White's Capital Cases. At the hearing last week, 
Senator Ashcroft admitted that he had characterized Judge White's 
record as being ``pro-criminal,'' but claimed that he ``did not 
derogate his background.'' I believe that Senator Ashcroft's attacks on 
Judge White on the Senate floor went well beyond simply characterizing 
his record. Senator Ashcroft suggested that Judge White had ``a 
tremendous bent toward criminal activity'' (Congressional. Record, 
October 5, 1999, at S11933) and ``a serious bias against a willingness 
to impose the death penalty'' (Congressional Record, October 4, 1999, 
at S11872), and argued that, if confirmed, ``he will use his lifetime 
appointment to push law in a procriminal direction, consistent with his 
own personal political agenda'' (Id.). In my 26 years in the Senate, I 
have never heard an attack like that on the Senate floor against a 
sitting judge. I can scarcely imagine anything more derogatory that 
could be said about a judge than that he uses his office to pursue a 
personal procriminal agenda. Such accusations should not be lightly 
made. The facts show that they were baseless.
  Fact one: Judge White voted to uphold the death penalty 40 times in 
58 death penalty cases. In other words, he voted to uphold the death 
penalty in about 70 percent of the capital cases that came before him. 
One of Senator Ashcroft's own appointees to the Missouri Supreme Court, 
the late Ellwood Thomas, had a much higher percentage of votes for 
reversal of death sentences.
  Fact two: In 55 out of 58 capital cases that came before Judge 
White--that is 95 percent of the time--he ruled the same way as at 
least one of his Ashcroft-appointed colleagues. Judge White dissented 
in only seven out of 58 death penalty cases, and he was the sole 
dissenter in only three of those cases. The other four times, one or 
more of the Ashcroft judges agreed with Judge White that the defendant 
was entitled to a new trial or a new sentencing hearing.
  Fact three: In leading the campaign to defeat Judge White, Senator 
Ashcroft specifically criticized just three cases in which Judge White 
filed a lone dissent. In each case, Judge White's dissents were well-
reasoned and entirely defensible. The first was a 1996 case called 
State v. Damask (936 S.W.2d 565), which raised the issue of the 
constitutionality of drug interdiction checkpoints in two Missouri 
counties. Police officers dressed in camouflage were stopping motorists 
in the dark of night at the end of a lonely highway exit ramp and 
looking for evidence to allow them to search their vehicles for drugs. 
These stops were challenged by some motorists as a violation of the 
Fourth Amendment's prohibition against unreasonable search and seizure, 
but the Missouri Supreme Court decided that these were constitutional 
law enforcement procedures.
  Judge White filed a reasoned and respectful dissent. He agreed with 
his colleagues that ``trafficking in illegal drugs is a national 
problem of the most severe kind.'' He also agreed that traffic stops 
such as these could be lawful, if conducted in a reasonable way. 
However, he found, based on the specific facts of the case, that the 
checkpoint operations at issue were unduly intrusive and therefore 
unconstitutional.
  Just a few months ago, a case with facts similar to the Missouri case 
made its way to the U.S. Supreme Court. In City of Indianapolis v. 
Edmond, 121 S. Ct. 447 (2000), a six-justice majority of the Court 
found that drug interdiction checkpoints like the ones that were upheld 
by the Missouri Supreme Court are unconstitutional per se. Indeed, the 
Court went much farther in protecting the rights of motorists than 
Judge White went in his dissent.
  Judge White testified last week that the U.S. Supreme Court had 
vindicated his decision to dissent in the Damask case. That is clear to 
any competent lawyer reading the two cases. Yet before the Supreme 
Court's ruling, Senator Ashcroft said that Judge White's dissent in 
Damask revealed a ``tendency . . . to rule in favor of criminal 
defendants and the accused in a . . .

[[Page 725]]

procriminal manner.'' (Congressional Record, October 4, 1999, at 
S11872). A fairer characterization would be that Judge White faithfully 
followed the law in striking a reasonable balance between the freedoms 
that we all enjoy as motorists and the interests of law enforcement.
  Senator Ashcroft has stubbornly refused to retract his criticism of 
Judge White's dissent in Damask, notwithstanding the subsequent 
decision by the U.S. Supreme Court vindicating Judge White's position. 
Instead, Senator Ashcroft in his responses to written questions 
mischaracterized the facts of Damask, claiming that ``the police had 
created a checkpoint designed to stop only those who behaved in a way 
to justify individualized suspicion.'' As is clear from the majority 
decision, however, the police in Damask stopped all motorists who 
approached the checkpoint, without any individualized suspicion of 
wrongdoing, virtually identical to the fact in the Missouri case in 
which Judge White dissented.
  One would think that any Senator who characterized as ``procriminal'' 
a position taken by Justices O'Connor and Kennedy, among others, would 
be embarrassed and quick to apologize. Yet we have yet to hear an 
apology or even a retraction by Senator Ashcroft on this point.
  The other two dissents that Senator Ashcroft cited as evidence of 
Judge White's ``procriminal'' tendencies were filed in death penalty 
cases: State v. Johnson, 968 S.W.2d 123 (Mo. 1998), and State v. 
Kinder, 942 S.W.2d 313 (Mo. 1996). Both cases involved brutal and 
shocking murders, and we heard a lot about those murders at the 
hearings. While my heart goes out to the victims, I am troubled by the 
implication of many of my Republican colleagues that those accused of 
particularly egregious crimes are somehow undeserving of the fair trial 
and due process rights guaranteed to all Americans. As Senator 
Ashcroft's own models of conservative jurisprudence have written, ``the 
more reprehensible the charge, the more the defendant is in need of all 
constitutionally guaranteed protection for his defense.'' (Danner v. 
Kentucky, 525 U.S. 1010 (1998) (Scalia, J., joined by Thomas, J., 
dissenting from the denial of certiorari)). Focusing on the egregious 
facts of (rather than the legal analysis underlying) a death penalty 
case is a disingenuous and inappropriate way of evaluating the 
qualifications of sitting judges.
  Judge White's dissents in Johnson and Kinder properly turned on the 
legal issues in those cases. In Johnson, the key legal issue was 
whether or not the defendant received constitutionally sufficient 
assistance from his lawyer. In Kinder, the issue was whether the 
defendant was entitled to a new trial with an unbiased judge. These 
were difficult issues, and as many of my Republican colleagues have 
acknowledged, reasonable minds could differ on how they should have 
been resolved. Some respected legal commentators have reviewed the 
facts in these cases and the relevant legal precedents and concluded 
that Judge White was right to dissent. I especially urge all Senators 
to read Stuart Taylor's thoughtful and thorough analyses of these cases 
in the National Journal on October 16, 1999, and January 13, 2001.
  It is of course the right and duty of all Senators to familiarize 
themselves with a nominee's record before voting on his nomination. I 
respect Senator Ashcroft's diligence in undertaking a review of Judge 
White's decisions. What I do not understand are the apparent 
distortions of Judge White's record, the intemperate attacks, and the 
implication that judges should apply a lower standard of review in 
capital cases. When Senator Ashcroft began his campaign against Judge 
White, retired Missouri Supreme Court Judge Charles Blackmar--a 
Republican appointee--said that Judge White's votes in capital cases 
were ``not a significant diversion from the mainstream,'' and added 
this strong criticism of Senator Ashcroft: ``The senator seems to take 
the attitude that any deviation is suspect, liberal, activist and I 
call this tampering with the judiciary because of the effect it might 
have in other states that have the death penalty where judges, who 
might hope to be federal judges, feel a pressure to conform and to vote 
to sustain the death penalty.'' (St. Louis Post-Dispatch, August 21, 
1999). As a strong believer in judicial independence, I share Judge 
Blackmar's concern.
  To conclude on this point, Senator Ashcroft's words and actions with 
respect to the Ronnie White nomination raise serious concerns about his 
sense of fair play, his willingness to demonize those with whom he 
disagrees, and his respect for judicial independence. In my view, what 
America needs is an Attorney General who examines the facts and the law 
carefully and impartially and then articulates his positions 
respectfully, not one who distorts the facts and plays politics with 
the law.
  In his first day of testimony, Senator Ashcroft stated, in response 
to my questions, that he had opposed Bill Lann Lee, President Clinton's 
nominee for Assistant Attorney General for Civil Rights, because he had 
``serious concerns about his willingness to enforce the Adarand 
decision, which was a recent decision of the United States Supreme 
Court. . . . Mr. Lee did not indicate a clear willingness to enforce 
the law based on that decision.'' (1/16/01 Tr., at p. 96). When I tried 
to explore what Senator Ashcroft perceived to be Mr. Lee's failure in 
this regard, Senator Ashcroft explained that when Mr. Lee was asked at 
his confirmation hearing what the Adarand standard was, ``he did not 
repeat the strict scrutiny standard of `narrowly tailored and directly 
related. . . . He stated another standard.'' (Id, at 97). This is 
simply not true.
  When Bill Lann Lee testified before the Senate Judiciary Committee on 
October 22, 1997, he had the following colloquy with Chairman Hatch:

       Chairman Hatch: These cases [Croson and Adarand] would also 
     stand for the proposition, wouldn't they, that strict 
     scrutiny would be required in all governmental racial 
     classification matters?
       Mr. Lee: Yes, that is correct, that strict scrutiny is 
     required and that properly designed and properly implemented 
     affirmative action programs are consistent with the strict 
     scrutiny test under the Fourteenth and Fifth Amendment.
       Chairman Hatch: Would you agree that Adarand stands for the 
     proposition--the Supreme Court case of Adarand--stands for 
     the proposition that State-imposed racial distinctions are 
     presumptively unconstitutional, that that presumption can be 
     overcome only by a strong basis in evidence of a compelling 
     interest and should be narrowly tailored? Have I stated that 
     pretty correctly?
       Mr. Lee: Yes, and I agree with that.
       Chairman Hatch: All right . . . .

  (Bill Lann Lee Confirmation Hearing, Senate Judiciary Committee, 
October 22, 1997, Transcript of Proceedings, pages 41-42).
  Moreover, when I asked Senator Ashcroft about Bill Lann Lee, he 
referred to the District Court's decision on remand in the Adarand 
case, which found unconstitutional the contracting affirmative action 
program that is the subject of that litigation. He failed to note, 
however, that the Tenth Circuit has since reversed that decision, 
finding that the contracting program did in fact meet strict scrutiny. 
Adarand Constructors v. Slater, 228 F.3d 1147 (10th Cir. 2000).
  To this day, I do not understand Senator Ashcroft's opposition to the 
nomination of Bill Lann Lee, but I do know that the purported reason he 
gave at his own nomination hearing is simply not supported by the 
record.
  At the hearing, Senator Ashcroft and the witnesses called on his 
behalf made claims about the diversity of his appointments to the state 
courts and his cabinet while he was Governor. These claims were clearly 
designed to rebut any inference that his actions and record with regard 
to presidential nominees such as Judge Ronnie White, Bill Lann Lee, and 
others, or his associations with Southern Partisan magazine or Bob 
Jones University, reflected any fundamental insensitivities on his 
part. Unfortunately, the claims made at the hearing about the diversity 
of Governor Ashcroft's appointments do not withstand scrutiny when 
compared to either his Republican predecessor in the Governor's office, 
Senator Kit Bond, or his successor, Governor Mel Carnahan.

[[Page 726]]

  At the first day of the hearing, Senator Ashcroft stated: ``I took 
special care to expand racial and gender diversity in Missouri's 
courts. I appointed more African-American judges to the bench than any 
governor in Missouri history, including appointing the first African-
American on the Western District Court of Appeals and the first 
African-American woman to the St. Louis County Circuit Court.'' (1/16/
01 Tr., at p. 89). He repeated these claims the next day. (1/17/01 Tr., 
at p. 57).
  The claim of appointing more African American judges than any 
governor in Missouri history is deliberately deceptive. While Governor 
from 1985 through 1992, John Ashcroft set a record at the time with 
eight African American appointments to the bench, but this is only when 
compared to his predecessors, who had appointed far fewer. His 
successor, the late Governor Mel Carnahan, appointed twenty. (St. Louis 
Post-Dispatch, 1/11/01).
  Also, while technically correct that Governor Ashcroft appointed the 
first African-American on the Western District Court of Appeals, this 
was not the first African American appointed to the appellate court in 
Missouri, as might be implied. Judge Ted McMillian was appointed by 
Warren Hearnes more than ten years earlier to the Eastern District 
Court of Appeals. (See The Honorable Donald P. Lay, ``The Significant 
Cases of the Honorable Theodore McMillian During His Tenure on the U.S. 
Court of Appeals for the Eighth Circuit,'' 43 St. Louis U. L.J. 1269, 
1270 (1999)). I point this out not to minimize Senator Ashcroft's 
appointment of minority candidates, but simply to ensure that the 
record is not exaggerated.
  Jerry Hunter, former Missouri Labor Secretary, and Missouri Circuit 
Judge David Mason, both of whom had been appointed by Governor 
Ashcroft, testified in support of the nominee and applauded his record 
of appointments of African-Americans while he was Governor. Mr. Hunter 
was the only African-American or minority to serve in John Ashcroft's 
cabinet, which is made up of fifteen department directors, during his 
first four years. (1/18/01 Tr., at pp.179-180). In addition, although 
the Mound City Bar Association, which Mr. Hunter described as ``one of 
the oldest black bar associations in this country,'' commended Governor 
Ashcroft in 1991 upon his appointment to the bench of an African-
American female judge, this same organization, by letter dated January 
12, 2001, has made clear that ``this is not a nomination that we can 
support.'' (Id., at p. 180).
  Senator Ashcroft as Governor of Missouri claims to have taken 
``special care'' of gender diversity as well, yet his record of 
appointments of women to the judiciary is ``abysmal.'' (1/18/01 Tr., at 
p. 60). He carefully testified that he named two women to the appellate 
court, the first in 1988; the other to fill the same position when the 
first woman moved up to the Supreme Court. He does not mention that 
this did not happen until nearly three years after he took office and 
only after front-page stories in local newspapers made clear that 
``Missouri lags behind most other states in the selection of women for 
judgeships,'' (St. Louis Post-Dispatch, October 22, 1986), and a 
national survey by the National Women's Political Caucus ranked 
Governor Ashcroft ``near the bottom among state executives in 
appointment of women to Cabinet-level posts. . .'' (St. Louis Post-
Dispatch, October 24, 1986). By contrast, the same survey put Governors 
Madeleine Kunin of Vermont and Bill Clinton of Arkansas among the top 
ten states for the percentages of women in their cabinets. (Id.).
  A study on the number of women appointed to the judiciary published 
in 1986 found that Missouri was one of only five states with 
intermediate appellate courts that had never had a female jurist above 
the trial court level. (Karen Tokarz, ``Women Judges and Merit 
Selection under the Missouri Plan,'' 4 Washington Univ. Law Quarterly, 
903, 916 (1986)). This study suggests that ``the attitude of the chief 
executive may affect women's access to the judiciary,'' and cites as 
examples that the ``explicit affirmative efforts by Governor 
Christopher Bond and President Jimmy Carter to recruit women applicants 
correlate with increased numbers of women judicial appointees during 
their tenures.'' (Id., at 942). By comparison, the study notes that at 
the time the article was written, then Governor Ashcroft had selected 
no women for the 19 judicial appointments he had made ``nor has 
Ashcroft appointed any women for the nine interim appointments.'' 
(Id.).
  John Ashcroft's low numbers of women appointments to the judiciary 
were not due simply to a failure to have women's names recommended by 
nominating commissions. Press accounts report that women candidates 
appeared on panels presented to then-Governor Ashcroft, but in the 
incidents reported, he appointed men. (St. Louis Post-Dispatch, March 
20, 1988). Moreover, as Governor, John Ashcroft did even more poorly 
with so-called ``interim appointments'' of judges outside the merit 
selection plan, where governors have free rein and are not limited by 
the recommendations of a selection panel. In two terms, Governor Bond 
had named eight women out of 77 interim appointments. Governor Ashcroft 
named only two women out of 51 interim appointments. (``Report on the 
Missouri Task Force on Gender and Justice,'' 58 Missouri Law Rev. 485, 
688 n. 746 (1993)).
  In short, Senator Ashcroft deserves credit for appointing women to 
judicial posts, but the amount of credit he should be given depends on 
the context. John Ashcroft named only eleven women out of 121 judicial 
appointments during his eight years as governor. Id. at 702, Table 1. 
Not only did his successor appoint nearly three times that number in 
the equivalent time period but this number was even surpassed by his 
predecessor, Governor Bond, who appointed twelve women during two 
terms. (58 Mo. Law Rev. at 702, Table 1).
  Governor Ashcroft's testimony on the diversity of his appointments is 
technically accurate, but in my view was misleadingly framed to portray 
him as a leader on diversity. In truth, the record shows little 
evidence of urgency or strong advocacy for diversity. Both his actual 
record and the manner in which he portrayed it to the Committee are 
troubling.
  John Ashcroft has engaged in a pattern of using inflammatory and 
intemperate language to question the authority and legitimacy of the 
United States Supreme Court and lower federal courts in a way that 
raises serious concern in my mind about his suitability for the job of 
Attorney General and whether he is the appropriate role model for the 
job of the Nation's chief law enforcer. Worse, while sworn to uphold 
the Constitution, he has backed up his words and disrespect for Supreme 
Court precedent by sponsoring legislation both in Missouri and in the 
U.S. Senate that is patently unconstitutional.
  John Ashcroft has taken many opportunities to bash the federal 
judiciary. In several public speaking engagements he has chosen to 
attack the decisions of federal courts. (Speech to the Claremont 
Institute, Los Angeles, California, October 13, 1997, available through 
www.claremont.org; Appearance on ``Jay Sekulow Live'' Radio Show, July 
24, 1998, available through www.jaylive.com.) The most extreme example 
of Senator Ashcroft's rhetorical attacks on the Supreme Court is the 
speech he gave in March 1997 to both the annual meeting of the 
Conservative Political Action Conference and to the Heritage 
Foundation. In ``Courting Disaster: On Judicial Despotism In the Age of 
Russell Clark,'' he characterized the Supreme Court's landmark abortion 
decisions in Roe v. Wade and Casey as ``illegitimate.'' He called the 
Justices who struck down an Arkansas congressional term limit law 
``five ruffians in robes,'' and said that they ``stole the right of 
self-determination from the people.'' He asked, ``have people's lives 
and fortunes been relinquished to renegade judges, a robed, 
contemptuous intellectual elite fulfilling Patrick Henry's prophecy, 
that of turning the courts into, quote, `nurser[ies] of vice and the 
bane of liberty?' '' He also said ``We should enlist the American 
people in an effort to rein in an out-of-control Court.''
  The ``five ruffians in robes'' to whom Senator Ashcroft referred are 
members

[[Page 727]]

of the Rehnquist Supreme Court,
which is a most conservative court--sometimes activist but decidedly 
conservative. I have heard Justice Anthony Kennedy and Justice Ruth 
Bader Ginsburg called many things but never ``ruffians.''
  I find this sort of rhetoric deeply troubling. I certainly understand 
disagreeing with a Supreme Court decision. Lately, I have found myself 
strongly disagreeing with a number of decisions by the Court. I took 
strong exception to the Court's intervention in Bush v. Gore, but 
having noted my disagreement in respectful terms, I said that I 
accepted the Court's decision, and believed that all Americans should 
do the same.
  When I asked Senator Ashcroft about these comments, he did not 
disavow them but simply noted that ``I don't think it'll appear in any 
briefs.'' (1/17/01 Tr., at p. 263). I should hope not. But I would also 
hope that a public official sworn to uphold the Constitution would not 
go running around denying the legitimacy of Supreme Court decisions 
that, in our constitutional system, are the ultimate authority on what 
the Constitution means.
  These comments raise serious issues about a fundamental qualification 
for the job of Attorney General: Senator Ashcroft's ability and 
readiness to discharge the obligatory oath to uphold the Constitution.
  Senator Ashcroft's legislative career is not reassuring in this 
regard. While it is true, as Senator Ashcroft stressed, that a 
Senator's legislative role is different from an Attorney General's law 
enforcement role, both take the same oath to uphold the Constitution, 
so the one is not irrelevant to the other.
  As a Senator, John Ashcroft displayed little reverence for the 
Constitution as written and as interpreted by the Supreme Court. It is, 
of course, the privilege of Senators to propose constitutional 
amendments, but in his one six-year term here, Senator Ashcroft stood 
out among his colleagues in his eagerness to amend the Constitution 
whenever its terms dictated a result he did not like. He did not like 
Roe v. Wade, so he sponsored a Human Life Amendment, which would have 
banned all abortions except where necessary to protect the life of the 
mother. He did not like the way the ``five ruffians in robes'' 
interpreted the Constitution in the Term Limits case, so he sponsored 
Term Limits Amendments. In total, Senator Ashcroft sponsored or 
supported constitutional amendments on no less than eight different 
topics in his six years in the Senate.
  That is a distinctly un-Madisonian record. James Madison told 
posterity that constitutional amendments should be limited to ``certain 
great and extraordinary occasions.'' Madison's wise counsel, like the 
Constitution itself, has stood the test of time: the Constitution has 
only been amended 17 times in the past 200 years. But John Ashcroft 
disagrees with James Madison on the spirit of Article V, the Article 
governing the amendment process. Indeed, he even introduced a proposed 
amendment, supported by no other Senator, to change Article V itself. 
In a Dallas Morning News article dated January 17, 1995, he was quoted 
as saying that he wanted to ``swing wide open the door'' to let the 
States decide on new amendments. His proposed amendment would have done 
so. Even more than the other amendments he supported, Senator 
Ashcroft's amendment to Article V would have severely cut back on the 
constitutional role of Congress, by allowing bare majorities in three-
quarters of the States to amend the Constitution even if a majority of 
Congress disagreed. This radical proposal sits in stark contrast to the 
claim Senator Ashcroft makes today--in his response to my written 
question he says that his efforts to amend the Constitution as a 
Senator ``reflect a fundamental respect for the Constitution and for 
the mechanism that that documents for altering the text.''
  More troublesome is Senator Ashcroft's record of introducing 
unconstitutional legislation, particularly in the area of reproductive 
rights. In both Missouri and in the U.S. Senate, Senator Ashcroft has 
been an unabashed advocate of banning abortion in all circumstances, 
except to save the life of the mother, even though this position runs 
directly counter to the fundamental rights set forth in Roe v. Wade. He 
has also been an unabashed critic of this seminal decision, stating as 
recently as 1998 that, ``[c]learly, the Supreme Court, unguided by any 
constitutional text, has written themselves into a position that is 
legally, medically and morally incoherent.'' (Congressional Record, 
June 5, 1998, at S5697).
  In 1981, when he served as Attorney General of Missouri, he testified 
before the Senate Judiciary Subcommittee on Separation of Powers on a 
bill sponsored by Senator Helms and Representative Hyde. The bill 
stated ``the life of each human being begins at conception,'' and would 
have allowed each state to outlaw and criminalize abortion, without any 
exception for victims of rape or incest or even to save the life of the 
mother. (Hearings on S. 158 Before the Subcomm. on Separation of 
Powers, Senate Comm. on the Judiciary, 97th Cong. 1105-1109 (1981)). 
John Ashcroft made clear his view of both Roe v. Wade and the workings 
of the Supreme Court in his introductory remarks, stating:

       I have devoted considerable time and significant resources 
     to defending the right of the State to limit the dangerous 
     impacts of Roe v. Wade, a case in which a handful of men on 
     the Supreme Court arbitrarily amended the Constitution and 
     overturned the laws of 50 States relating to abortions. 
     (Id.).

  In a chilling reminder of stringent State anti-abortion laws in 
effect before Roe v. Wade, Missouri Attorney General Ashcroft 
reminisced that:

       We had a law which specified that aborting a child 
     subjected a person to a manslaughter charge, but there was a 
     clearly maintained exception for cases in which the mother's 
     life was in danger.

  True to his 1981 testimony, he was actively involved in anti-abortion 
efforts as Missouri's Attorney General. He defended a state statute 
that, among other restrictions, would have required all abortions after 
12 weeks to be performed in a hospital. The Supreme Court recognized 
that such a requirement would effectively increase the cost of such 
abortions dramatically and make them all but impossible to obtain for 
anyone but the wealthy, and therefore ruled that this requirement was 
unconstitutional. Planned Parenthood v. Ashcroft, 462 U.S. 476, 482 
(1983). In a brief he submitted to the U.S. Supreme Court in defense of 
that law, John Ashcroft argued that, in establishing the in-hospital 
requirement, ``Missouri has acted precisely within the parameters of 
Roe v. Wade.'' (Brief for the Cross-Petitioners).
  While defending the constitutionality of a state law is the 
appropriate role of the attorney general, he has also aggressively 
tested the limits of Roe v. Wade as a legislator. In 1986, as Governor 
of Missouri, John Ashcroft signed a sweeping anti-abortion bill that 
stated, among other things, that ``life begins at conception.'' The 
Supreme Court declined to assess the constitutionality of that 
provision, while upholding other parts of the law. Webster v. 
Reproductive Health Services, 492 U.S. 490 (1989).
  His legal success in Webster prompted Governor Ashcroft to appoint a 
state task force to consider additional measures the state could enact 
to restrict reproductive rights. Despite the complexity and volatility 
of this issue, he made no effort to develop a consensus but instead 
indicated that the group should not have ``drawn-out hearings'' and he 
only appointed members who shared his ardent anti-abortion views. This 
was a polarizing action. Indeed, legislative leaders reportedly 
``declined to nominate members to the task force, saying it was going 
to end up stacked anyway in favor of one side of the issue.'' (St. 
Louis Post-Dispatch, August 9, 1989). Harriett Woods confirmed at the 
nomination hearing that ``the leaders of the legislature were so 
outraged that they said they wouldn't participate.'' (1/18/01 Tr., at 
p. 63). Not surprisingly, the preordained conclusions of the Task Force 
on Unborn Life report, issued in January 1990, were that ``the ultimate 
goal of legislation and policy-making in the State of Missouri should 
be . . . the imposing of

[[Page 728]]

legal restrictions to reduce the number of abortions.''
  Shortly after release of that report, Governor Ashcroft announced his 
support for legislation, to become known as Missouri Senate bill 339, 
that would have criminalized abortions performed for eighteen different 
reasons, including ``to prevent multiple births from the same 
pregnancy,'' ``the failure of a method of birth control,'' and ``to 
prevent having a child not deemed to be wanted by the mother or 
father.'' No exception for rape or incest was allowed. To add to the 
burdens on a woman seeking an abortion, this legislation would have 
required a pregnant woman to file an affidavit stating the reasons for 
the abortion, apparently subjecting her to criminal liability for 
perjury if she did not fully disclose in a document to be filed with 
the abortion facility her most personal, confidential reasons for 
exercising her right to choose. Furthermore, the bill would also have 
allowed the spouse or father of the ``unborn child'' and the state 
Attorney General to intervene in court to stop the abortion. This 
extreme legislation failed in the state legislature because it lacked 
an exception for cases of rape and incest. (St. Louis Post-Dispatch, 
March 28, 1991).
  When I consider the moral, ethical and religious dilemma that parents 
face when they learn that a pregnancy is multiple and that the best 
chance for normal, healthy births may be to have selective fetal 
reduction, I shudder at proposed legislation that would make such a 
difficult decision a criminal one.
  More disturbing is Senator Ashcroft's effort, as part of his 
confirmation evolution, to distance himself from this legislation. He 
acknowledges in response to my written questions that Missouri Senate 
Bill 339 might not be constitutional, but asserts that (1) he had ``no 
specific recollection'' of the bill; (2) ``it appears from press 
reports that representatives from my office may have expressed interest 
in seeing the bill passed out of committee''; (3) ``[w]hile I was 
governor, it was my policy to refrain from opining on whether I would 
sign a bill until after a bill actually passed the legislature'' and 
(4) ``this bill did not prevent abortions attributable to rape, incest 
or a ``bona fide, diagnosed health problem''. (Emphasis in original). 
Each of these assertions are belied by the public record.
  First, Senator Ashcroft's failure of recollection about this 
legislation is difficult to credit. In his State of the State Address 
on January 9, 1990, he said: ``within the next week, I will announce my 
support for concepts that would enhance our capacity to protect unborn 
children.'' Shortly thereafter, on January 19, 1990, he issued a 
statement saying, ``Today I am proposing that Missouri ban abortions 
for birth control, sex selection, and racial discrimination. 
Missourians reject multiple, birth control abortions. . . I am grateful 
for these proposals and I would welcome an opportunity to sign their 
protections for unborn children and mothers into law as an alternative 
to the continuation of abortions.'' These specific reasons for banning 
abortion were part of Missouri Senate bill 339. Senator Ashcroft failed 
to provide the Committee with these speeches, but they are documented 
in contemporaneous press reports. (See St. Louis Post-Dispatch, January 
10, 1990 and January 20, 1990).
  Second, Senator Ashcroft is wrong when he says only his 
``representatives . . . expressed interest.'' In addition to the 
speeches cited above, in which he expressly supported the terms of this 
legislation, when the bill was being debated in the Missouri Senate, 
then-Governor Ashcroft reportedly got personally involved in pressuring 
a swing vote. ``Gov. John Ashcroft had telephoned Singleton to urge his 
support for a bill barring virtually all abortions'' [referring to 
Senate Bill 339]. St. Louis Post-Dispatch, March 28, 1991.
  Third, Senator Ashcroft is wrong when he says he refrained from 
opining about signing the bill. Contemporaneous press reports note that 
``[t]he governor's proposal would join two bills that would outlaw most 
abortions in Missouri. Ashcroft said he would sign those measures into 
law `as an alternative to the continuation of abortions.' '' (St. Louis 
Post-Dispatch, January 20, 1990).
  Finally, Senator Ashcroft is wrong when he says the bill did ``not 
prevent abortion attributable to rape, incest''. The bill itself 
provides no such exceptions and, in fact, the bill failed because in 
the view of the ``swing vote'' ``the proposal went too far. . . it 
failed to assure the continued legality of abortions in cases involving 
rape or incest.'' (St. Louis Post-Dispatch, March 28, 1991).
  We are all aware that during his time in the Senate, John Ashcroft 
was among the most avid of anti-abortion legislators. He has 
cosponsored the so-called ``Human Life Act,'' which states that ``the 
life of each human being begins at fertilization.'' This legislation 
would not only ban all abortions, but also have the effect of outlawing 
the most common forms of contraception, including the birth control 
pill and the IUD.
  At the nomination hearing, I asked a panel of witnesses that included 
both supporters and opponents of this nomination, and was composed 
largely of experts on reproductive rights issues, whether anyone 
disagreed that the Human Life Act was patently unconstitutional on its 
face. No one expressed disagreement, or disputed me when I said: ``I'll 
take it by your answers, everybody feels it's unconstitutional.'' (1/
18/01 Tr., at p. 80).
  In response to my written questions, Senator Ashcroft has now 
conceded, as part of his confirmation evolution, that, as introduced, 
the Human Life Act of 1998 was ``not constitutional under Roe and 
Casey,'' thus acknowledging that while sworn to uphold the 
Constitution, he knowingly proposed unconstitutional legislation. His 
explanation--``I thought that [the legislation] had the potential to 
promote a discussion that could have led to the passage of legislation 
that would have been constitutional under Roe and Casey''--is 
inconsistent with his statement on introduction of the bill: ``I 
believe that our proposed Human Life Act is a legitimate exercise of 
Congressional power under Section Five of the Fourteenth Amendment'' 
(Congressional Record. 6/5/98, S5697).
  There is no doubt that John Ashcroft's support for unconstitutional 
legislation limiting reproductive rights stems from his genuine and 
heart-felt antipathy for the woman's right to choose--her right to 
choose not only whether to be pregnant but also the form of 
contraceptive which works best for her. Limiting access to 
contraceptives is, for me, a significantly troubling aspect of John 
Ashcroft's record.
  For example, when he testified before the Senate in 1981, opponents 
of the Helms-Hyde bill at issue made clear that an important 
consequence of a law mandating that life begins at conception would be 
to permit states to ban multiple forms of popular contraceptives. One 
expert physician explained, ``[t]his bill, if enacted into law, will 
prohibit the use of such commonly employed contraceptives as certain 
birth control pills and intrauterine devices because these forms of 
birth control prevent implantation into the uterus of the fertilized 
ovum that has, by legal decree, been made a person.'' (Hearings on S. 
158 Before the Subcomm. on Separation of Powers, Senate Comm. on the 
Judiciary, 97th Cong., supra, at p. 51, testimony of Dr. Leon 
Rosenberg).
  Short of federal legislation, John Ashcroft took other steps to limit 
access to contraceptives at the local level. In 1980, as Missouri's 
Attorney General, he issued a legal opinion designed to undermine the 
state's nursing practices law. He opined that the giving of information 
about and dispensing of condoms, IUDs and oral contraceptives, and 
other basic gynecological services by nurses constituted the criminal 
act of the unauthorized practice of medicine, even though these 
services were at the time routine health practices provided by Missouri 
nurses, including within the State's own county health departments. As 
a result, the State Board of Registration for the Healing Arts 
threatened certain physicians and nurses with a show cause order as to 
why criminal charges should not be brought against them. The attorney 
who represented these

[[Page 729]]

nurses and physicians, Frank Susman, testified at the nomination 
hearing that:

       Implementation of the nominee's Opinion would have 
     eliminated the cost-effective and readily available delivery 
     of these essential services to indigent women, who often 
     utilize county health departments as their primary health 
     care provider, and would have shut and bolted the door to 
     poor women who relied upon these services as their only means 
     to control their fertility. (1/18/01 Tr., at p. 75).

  In a lawsuit designed to resolve this matter, Attorney General 
Ashcroft intervened to block the nurses from providing these family 
planning services, but a unanimous Missouri Supreme Court struck down 
the nominee's interpretation of the Nursing Practice Act. Sermchief v. 
Gonzales, 660 S.W.2d 683 (1983).
  Mr. Susman testified that the nominee has ``at every opportunity . . 
. sought to limit access to and to require parental consent for not 
only abortion, but for contraception as well.'' (1/18/01 Tr., at p. 
76). Indeed, in the Senate, Senator Ashcroft was the sole sponsor of 
legislation that would require parental consent before ``an 
abortifacient'' or ``contraceptive drugs or devices'' are dispensed to 
a minor through federally-subsidized programs. (S. 2380, in 105th 
Congress; S. 3102 in 106th Congress).
  Set against this record, John Ashcroft's testimony that he accept[s] 
Roe and Casey as the settled law of the land and that he will follow 
the law in this area'' seems, at a minimum, implausible. (1/16/01 Tr., 
at p. 91).
  Religious organizations perform wonderful acts of compassion and 
charity and play a critical role in helping those most needy in our 
country and in filling gaps left by government programs. Yet, our 
Constitution obligates us to ensure that church and state remain 
separate, to protect the religious beliefs of all of our citizens from 
government interference, and to protect the rights of those who do not 
believe. This obligation means that any use of religious organizations 
to provide social services must be structured with extraordinary care, 
and that there be separation between proselytizing and charity. John 
Ashcroft has been a leading proponent of the most extreme ``charitable 
choice'' policies, under which religious organizations would not even 
have to avoid religious proselytizing while distributing federal 
benefits.
  His deference to religious groups is such that, as Governor, he even 
opposed laws aimed at ensuring that church-run day care centers met the 
same basic health and safety requirements (e.g., smoke detectors and 
fire exits) that applied to all other day care centers because, as he 
put it in his response to my written questions, of ``the need to 
protect religious institutions from excessive entanglements with 
government.'' Missouri was one of a small group of States that did not 
apply ordinary health and safety requirements to day care centers run 
by religious organizations. (St. Louis Post-Dispatch, June 13, 1985). 
Nevertheless, John Ashcroft threatened to veto bills aiming to apply 
these requirements. (UPI, December 3, 1984). The extremeness of this 
position was demonstrated by the testimony of James Dunn, who recounted 
how a move to apply safety regulations to religiously-run child care 
centers in Texas were opposed by only three out of 600 such centers (1/
19/01 Tr., at p. 73).
  Senator Ashcroft has also not been forthcoming in response to 
straightforward questioning concerning his views of the Supreme Court's 
First Amendment jurisprudence. He told the Christian Coalition in 1998 
that ``a robed elite have taken the wall of separation built to protect 
the church and made it a wall of religious oppression.'' But when I 
asked him in writing to specify which court decisions he was referring 
to, he offered no response. Similarly, I asked him about his attitude 
toward the Supreme Court's 1987 decision in Edwards v. Aguillard, which 
held that States may not forbid the teaching of evolution when 
``creation science'' is not also taught. He would not say whether he 
agreed with the decision or not, and he would not provide any examples 
to support his 1997 claim that ``over the last half century, the 
federal courts have usurped from school boards the power to determine 
what a child can learn.''
  John Ashcroft presents himself as a man of great certitude--we did 
not hear any regret from him during his testimony about his appearance 
at Bob Jones University, his interview with Southern Partisan magazine, 
or his reference to former Reagan Administration press secretary Jim 
Brady as the ``leading enemy'' of responsible gun owners. In his 
written responses to questions from members of the Committee, he 
bypassed further opportunities to reflect on his controversial 
statements and actions. He can be fairly characterized as seeing issues 
as sharp contests between right and wrong, and I am sure that he 
believes he chooses the right. But I am concerned that his certitude 
may make him insensitive to the actual impact of his actions on 
individual American families and citizens. I think in particular of the 
story of Pete Busalacchi, who submitted written testimony to the 
Judiciary Committee.
  Pete Busalacchi is a Missouri man and was one of John Ashcroft's 
constituents. Almost 15 years ago, his teenage daughter, Chris 
Busalacchi, was grievously wounded in a car crash. According to Mr. 
Busalacchi, his daughter's doctors told him that she would remain in a 
persistent vegetative state for the remainder of her life. (Busalacchi 
testimony, p. 1). After more than three years had passed since the 
accident, during which time Chris Busalacchi never recovered from her 
injuries, Mr. Busalacchi sought to move his daughter to Minnesota. He 
planned to seek further medical opinions and consider removing her 
feeding tube if the medical consensus continued to be that she had no 
hope of recovery. (Id. at p. 2). Instead, the Ashcroft Administration 
obtained a restraining order preventing Mr. Busalacchi from removing 
her from the state, launching a two-year battle seeking to prevent Mr. 
Busalacchi from making determinations about his daughter's medical 
treatment. (Id.) Pete Busalacchi testified that John Ashcroft, through 
his administration, injected his ``political and religious views into 
[the Busalacchi] family's tragedy.'' (Id. at p. 1). When informed of 
the way Mr. Busalacchi felt and asked in writing whether his 
administration had shown the proper respect for the Busalacchi family 
in such a difficult time, John Ashcroft simply said, ``Yes.'' He made 
no acknowledgment that this tragedy even presented a difficult case, 
nor did he express compassion for the family.
  President Bush announced that John Ashcroft would be his nominee for 
Attorney General on December 22, 2000. The choice of a controversial 
nominee was his alone. Despite the controversy surrounding this 
nomination, we proceeded expeditiously to schedule nomination hearings, 
as requested by then President-Elect Bush, even before we had received 
the formal nomination, a complete FBI background report or Senator 
Ashcroft's complete response to the standard Committee questionnaire.
  As the Chairman of the Judiciary Committee for the three-week period 
from the beginning of the new 107th Congress until the Inauguration, I 
pledged to conduct the nomination hearing for John Ashcroft in a full, 
fair, and thorough manner. I believe this pledge was amply fulfilled. I 
conferred regularly with Senator Hatch to ensure that every single 
witness from whom the nominee and his supporters wished to hear were 
called as witnesses. I also provided a fair amount of time and 
opportunity for the American people, through their elected 
representatives, to ask the nominee about fundamental issues and the 
direction of federal law enforcement and constitutional policy that 
affect all of our lives.
  At a time of political frustration and division, it is important for 
the Senate to listen. One of the abiding strengths of our democracy is 
that the American people have opportunities to participate in the 
political process, to be heard and to feel that their views are being 
taken into account. Just as when the American people vote, every vote 
is important and should be counted so,

[[Page 730]]

too, when we hold hearings we ought to do our best to take competing 
views into account. Being thorough, and giving a fair hearing to 
supporters and opponents of the nomination, is also what fairness to 
the nominee requires. I and others put tough questions to John Ashcroft 
so that he would have a fair opportunity to respond to our concerns, 
instead of being ambushed on the Senate floor without an opportunity to 
respond, as had happened to Ronnie White.
  Over the last 200 years the confirmation process has evolved. The 
first Congress established the office of the Attorney General in 1789 
but confirmations were handled by the full Senate or special 
committees. It was not until 1816 that the Senate established the 
Judiciary Committee as one of the earliest standing Committees, chaired 
initially by Senator Dudley Chase of Vermont. It was not until 1868 
that the Senate began regularly referring nominations for Attorney 
General to this Committee. In the 26 years that I have been privileged 
to serve in the United States Senate, these confirmation hearings have 
become an increasingly important part of the work of the Committee.
  Of the 15 cabinet nominees not to be confirmed over time, nine were 
rejected by the Senate after a floor vote. Of those, one was a former 
Senator, John Tower, in 1989. Two were nominees to serve as Attorney 
General. One of those rejected Attorney General nominees was Charles 
Warren, an ultraconservative Detroit lawyer and politician nominated by 
President Coolidge who was voted down by a Senate controlled by the 
President's own party due to concern that Warren's prior associations 
raised questions about his suitability to be Attorney General.

       Progressive Republicans, recalling that Warren had aided 
     the sugar trust in extending its monopolistic control over 
     that industry believed this appointment was a further example 
     of the President's policy of turning over government 
     regulatory agencies to individuals sympathetic to the 
     interest they were charged with regulating. . . . [T]he 
     progressive Republicans combined with the Democrats in March 
     1925 to defeat the nomination narrowly. Richard Allen Baker, 
     ``Legislative Power Over Appointments and Confirmations,'' 
     Encyclopedia of the American Legislative System, at p. 1616.

  After the Senate rejected the nomination of Charles Warren, President 
Coolidge nominated John Sargent, a distinguished lawyer from Ludlow, 
Vermont, who was immediately confirmed and was the only Vermonter ever 
to serve as the Attorney General of the United States.
  It has been more than 25 years since a Senator was nominated to be 
Attorney General. Senator William Saxbe of Ohio resigned his Senate 
seat in 1974 to pick up the reins of the Justice Department in the 
aftermath of Watergate, at a time that saw two prior Attorneys General 
indicted toward the end of the Nixon Administration. It has been more 
than 130 years since a President has chosen to nominate a former 
Senator after he lost his bid for reelection to the United States 
Senate to be Attorney General. It is not since President Grant 
nominated George Williams to be Attorney General in 1871 that we have 
had a former Senator nominated to this important post after being 
rejected by the people of his home State.
  The position of Attorney General is of extraordinary importance, and 
the judgment and priorities of the person who serves as Attorney 
General affect the lives of all Americans. The Attorney General is the 
lawyer for all the people and the chief law enforcement officer in the 
country. Thus, the Attorney General not only needs the full confidence 
of the President, he or she needs the confidence and trust of the 
American people. All Americans need to feel that the Attorney General 
is looking out for them and protecting their rights.
  The Attorney General is not just a ceremonial position, and his or 
her duties are not just administrative or mechanical. Rather he or she 
controls a budget of over $20 billion and directs the activities of 
more than 123,000 attorneys, investigators, Border Patrol agents, 
deputy marshals, correctional officers and other employees in over 
2,700 Justice Department facilities around the country and in over 120 
foreign cities. Specifically, the Attorney General supervises the 
selection and actions of the 93 United States Attorneys and their 
assistants and the U.S. Marshals Service and its offices in each State. 
The Attorney General supervises the FBI and its activities in this 
country and around the world, the INS, the DEA, the Bureau of Prisons 
and many other federal law enforcement components.
  The Attorney General evaluates judicial candidates and recommends 
judicial nominees to the President, advises on the constitutionality of 
bills and laws, determines when the Federal Government will sue an 
individual, business or local government, decides what statutes to 
defend in court and what arguments to make to the Supreme Court, other 
federal courts and State courts on behalf of the United States 
Government. The Attorney General exercises broad discretion, largely 
unreviewed by the courts and only sparingly reviewed by Congress, over 
how to allocate that $20 billion budget and how to distribute billions 
of dollars a year in law enforcement assistance to State and local 
government, and coordinates task forces on important law enforcement 
priorities. The Attorney General must also set those priorities, and 
make tough decisions about which cases to compromise or settle. A 
willingness to settle appropriate cases once the public interest has 
been served rather than pursue endless, divisive, and expensive 
appeals, as John Ashcroft did in the Missouri desegregation cases, is a 
critical qualification for the job.
  There is no appointed position within the Federal Government that can 
affect more lives in more ways than the Attorney General, and no 
position in the cabinet more vulnerable to politicization by one who 
puts ideology and politics above the law. We all have a stake in who 
serves in this uniquely powerful position and how that power is 
exercised.
  We all look to the Attorney General to ensure even-handed law 
enforcement; equal justice for all; protection of our basic 
constitutional rights to privacy, including a woman's right to choose, 
to free speech, to freedom from government oppression; and to safeguard 
our marketplace from predatory and monopolistic activities, and 
safeguard our air, water and environment.
  As I said at the confirmation hearings for Edwin Meese to be Attorney 
General, ``[w]hile the Supreme Court has the last word on what our laws 
mean, the Attorney General has often more importantly the first word.''
  In addition, the Attorney General has come to personify fairness and 
justice to people all across the United States. Over the past 50 years, 
Attorneys General like William Rogers and Robert Kennedy helped lead 
the effort against racial discrimination and the fight for equal 
opportunity. The Attorney General has historically been called upon to 
lead the Nation in critical civil rights issues, to unite the Nation in 
the pursuit of justice, and to heal divisions in our society. America 
needs an Attorney General who will fight for equal justice for all and 
win the confidence of all the people, not one with a record of missed 
opportunities to bring people together.
  I do not have the necessary confidence that John Ashcroft can carry 
on this great tradition and fulfill this important role. Therefore, I 
cannot support his nomination.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Bingaman). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. VOINOVICH. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. VOINOVICH. Mr. President, I ask unanimous consent I be permitted 
to speak in morning business for up to 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.




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