S. HRG. 107–196

CONFIRMATION HEARING ON THE

NOMINATION OF JOHN ASHCROFT

TO BE ATTORNEY GENERAL OF THE

UNITED STATES

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

JANUARY 16–19, 2001

Serial No. J–107–1

Printed for the use of the Committee on the Judiciary

(

CONFIRMATION HEARING ON THE NOMINATION OF JOHN ASHCROFT

TO BE ATTORNEY GENERAL OF THE UNITED STATES

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

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76–342 TXT 2002

S. HRG. 107–196

CONFIRMATION HEARING ON THE

NOMINATION OF JOHN ASHCROFT

TO BE ATTORNEY GENERAL OF THE

UNITED STATES

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

JANUARY 16–19, 2001

Serial No. J–107–1

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY

PATRICK J. LEAHY, Vermont, Chairman

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

CHARLES E. SCHUMER, New York

RICHARD J. DURBIN, Illinois

MARIA CANTWELL, Washington

ORRIN G. HATCH, Utah

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JEFF SESSIONS, Alabama

SAM BROWNBACK, Kansas

MITCH MCCONNELL, Kentucky

(III)

C O N T E N T S

TUESDAY, JANUARY 16, 2001

STATEMENTS OF COMMITTEE MEMBERS

Page

Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of Delaware ............. 12

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 34

Cantwell, Hon. Maria, a U.S. Senator from the State of Washington ................ 29

DeWine, Hon. Mike, a U.S. Senator from the State of Ohio ................................ 26

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 27

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 21

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 19

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa ..................... 16

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah ............................ 7

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 11

Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin ....................... 15

Kyl, Hon. Jon, a U.S. Senator from the State of Arizona .................................... 23

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 30

Schumer, Hon. Charles E., a U.S. Senator from the State of New York ............ 24

Smith, Hon. Bob, a U.S. Senator from the State of New Hampshire ................. 32

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 20

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina ........ 14

PRESENTERS

Bond, Hon. Kit, a U.S. Senator from the State of Missouri ................................. 37

Carnahan, Hon. Jean, a U.S. Senator from the State of Missouri ...................... 36

Hutchison, Hon. Kay Bailey, a U.S. Senator from the State of Texas ................ 36

STATEMENT OF THE NOMINEE

Ashcroft, John, former U.S. Senator from the State of Missouri ......................... 43

Questionnaire .................................................................................................... 50

WEDNESDAY, JANUARY 17, 2001

WITNESSES

Collins, Hon. Susan M., a U.S. Senator from the State of Maine ....................... 157

Danforth, John, former U.S. Senator from the State of Missouri ....................... 159

Jackson Lee, Hon. Sheila, a Representative in Congress from the State of

Texas ..................................................................................................................... 230

Waters, Hon. Maxine, a Representative in Congress from the State of California .......................................................................................................................... 229

THURSDAY, JANUARY 18, 2001

WITNESSES

Campbell, Collene Thompson, Member, Memory of Victims Everywhere, San

Juan Capistrano, California ................................................................................ 305

Feldt, Gloria, President, Planned Parenthood Federation of America, New

York, New York .................................................................................................... 290

Greenberger, Marcia, Co-President, National Women’s Law Center, Washington, D.C. ................................................................................................................ 296

Page

IV

Henderson, Wade, Executive Director, Leadership Conference on Civil Rights,

Washington, D.C. ................................................................................................. 373

Hulshof, Hon. Kenny, a Representative in Congress from the State of Missouri ....................................................................................................................... 311

Hunter, Jerry, Esq., former Labor Secretary of Missouri, St. Louis, Missouri .. 272

James, Kay Cole, Heritage Foundation, Washington, D.C. ................................. 416

Mason, Hon. David C., Circuit Judge, St. Louis, Missouri .................................. 371

Michelman, Kate, President, Naral, Washington, D.C. ........................................ 280

Rice, B.T., Pastor, New Horizons Seventh Day Christian Church, St. Louis,

Missouri ................................................................................................................ 379

Robertson, Edward D. Jr., Esq., Attorney, Bartimus, Frickleton, Robertson

& Obetz, St. Louis, Missouri, and former Justice of Missouri Supreme

Court ..................................................................................................................... 265

Susman, Frank, Esq., Attorney, Gallop, Johnson, and Neuman, L.C., St.

Louis, Missouri ..................................................................................................... 277

Taylor, William L., Esq., Attorney, Citizens’ Commission on Civil Rights,

Washington, D.C. ................................................................................................. 386

Watts, Hon. J.C., Jr., a Representative in Congress from the State of Oklahoma ...................................................................................................................... 308

White, Hon. Ronnie, Judge, Missouri Supreme Court, Jefferson City, Missouri ....................................................................................................................... 243

Woods, Harriet, former Lieutenant Governor of Missouri, St. Louis, Missouri . 267

Woodson, Robert L., Sr., President, National Center for Neighborhood Enterprise, Washington, D.C. ....................................................................................... 383

FRIDAY, JANUARY 19, 2001

WITNESSES

Barnes, Michael, President, Handgun Control, Washington, D.C. ...................... 451

Dunn, James M., Visiting Professor of Christianity and Public Policy, Wake

Forest University, Winston-Salem, North Carolina .......................................... 461

QUESTIONS AND ANSWERS

Responses of the Nominee to questions submitted by Senator Biden ................. 487

Response of the Nominee to a question submitted by Senator DeWine ............. 491

Responses of the Nominee to questions submitted by Senator Feingold ............ 491

Responses of the Nominee to questions submitted by Senator Feinstein ........... 498

Responses of the Nominee to questions submitted by Senator Grassley ............ 509

Responses of the Nominee to questions submitted by Senator Kennedy ............ 510

Responses of the Nominee to questions submitted by Senator Kohl ................... 519

Responses of the Nominee to questions submitted by Senator Leahy ................ 525

Responses of the Nominee to questions submitted by Senator Levin ................. 546

Responses of the Nominee to questions submitted by Senator Lincoln .............. 545

Responses of the Nominee to questions submitted by Senator Mikulski ............ 544

Responses of the Nominee to questions submitted by Senators Graham and

Nelson ................................................................................................................... 547

Responses of the Nominee to questions submitted by Senator Schumer ............ 548

SUBMISSIONS FOR THE RECORD

African American Republican Leadership Council, Washington, DC, AlexSt. James, Chairman, statement ........................................................................ 553

Agudath Israel of America, Washington, DC, Abba Cohen, Director and Counsel, statement and attachment ........................................................................... 557

AIDS Action, Washington, DC, Claudia French, Executive Director, letter ....... 561

America Cares, Inc., Silver Spring, MD, Joyce Nalepka, President, letter

and attachments ................................................................................................... 563

American Federation of Labor and Congress of Industrial Organizations,

Washington, DC, John J. Sweeney, President, letter and attachment ............ 581

American Federation of State, County and Municipal Employees, AFL–CIO,

Washington, DC, statement ................................................................................ 592

American Federation of Teachers, AFL–CIO, Washington, DC, Sandra Feldman, President, letter .......................................................................................... 594

Page

V

American Indian Development Associates—New Mexico, Brennan Center for

Justice at NYU School of Law, Children’s Defense Fund, Children’s Law

Center of Massachusetts, Family Watch, Justice Policy Institute, Juvenile

Justice Project of Louisiana, Juvenile Rights Advocacy Project at Boston

College Law School, League of United Latin American Citizens (LULAC),

National Association of Criminal Defense Lawyers, National Association

of School Psychologists, National Center on Institutions and Alternatives,

National Community Education Association, Public Justice Center—Baltimore, Maryland, School Social Work Association of American, and Youth

Law Center, joint letter ....................................................................................... 595

American Insurance Association, Washington, DC, Robert E. Vagley, President, letter ............................................................................................................ 597

American Life League Inc., Stafford, VA, Judie Brown, President, letter .......... 598

American Road & Transportation Builders Association, Washington, DC, T.

Peter Ruane, President & CEO, letter ............................................................... 599

Americans United for Separation of Church and State, Washington, DC,

Barry W. Lynn, Executive Director, statement ................................................. 600

Ancell, D.W., Sheriff of Randolph County, Moberly, MO, letter .......................... 603

Ashcroft, Hon. John, ‘‘On Judicial Despotism’’, transcript of speech delivered

at CPAC Annual Meeting, March 6, 1997 ......................................................... 604

Asian Pacific American Labor Alliance, AFL–CIO; Japanese American Citizens League; National Federation of Filipino American Associations; and

Organization of Chinese Americans, joint statement ....................................... 608

Association of Former Vietnamese Political Prisoners of Washington, DC,

MD & VA, Quyen Cao Nguyen, Chairman, letter ............................................. 614

Baker, John S., Jr., Dale E. Bennett Professor of Law, Paul M. Hebert

Law Center, Louisiana State University, Baton Rouge, LA, letter ................. 615

Baker, Ross K., Professor of Political Science, Rutgers University, New Brunswick, NJ, article ................................................................................................... 617

Bar Association of San Francisco, San Francisco, CA, Douglas R. Young,

President, letter .................................................................................................... 621

Boat People S.O.S., Merrifield, VA, Nguyen Dinh Thang, Executive Director,

letter ...................................................................................................................... 625

Busalacchi, Pete, St. Louis, MO, statement .......................................................... 627

Business Software Alliance, Washington, DC, Robert W. Holleyman, II, President & Chief Executive Officer, letter ................................................................ 631

California Teachers Association, Burlingame, CA, Wayne Johnson, President,

letter ...................................................................................................................... 632

Center for Reproductive Law and Policy, Washington, DC, Janet Benshoof,

President, statement ............................................................................................ 633

Center for Security Policy, Washington, DC, Frank J. Gaffney, Jr., President

and CEO, letter .................................................................................................... 639

Chamber of Commerce of the United States of America, Washington, DC,

Thomas J. Donohue, President and Chief Executive Officer, letter ................ 640

Christian Legal Society, Annandale, VA, Samuel B. Casey, CEO and Executive Director, letter .............................................................................................. 641

Citizens for a Sound Economy, Washington, DC, Paul Beckner, President,

letter ...................................................................................................................... 642

Civic Progress Task Force on Desegregation of the St. Louis Public School

System, St. Louis, MO, report and attachments ............................................... 643

Clay, Hon. Wm. Lacy, a Representative in Congress from the State of Missouri, letter ........................................................................................................... 705

Collett, Teresa S., Professor of Law, South Texas College of Law, Houston,

TX, letter ............................................................................................................... 707

Commercial Internet Exchange Association, Washington, DC, Barbara A.

Dooley, President, letter ...................................................................................... 710

Concerned Christian Citizens, Lynden, WA, Gary Hardaway, Executive Director, letter ............................................................................................................... 711

Cornyn, Hon. John, Attorney General of Texas and Stenberg, Hon. Don,

Attorney General of Nebraska, joint letter ........................................................ 712

Destro, Robert A., Interim Dean, Columbus School of Law, The Catholic

University of America, Washington, DC, statement ......................................... 714

Dinh, Viet D., Professor of Law, Georgetown University Law Center, Washington, DC, letter ................................................................................................. 720

Doerge, Ron, Sheriff, Newton County, Missouri, Neosho, MO, letter ................. 722

Duncan, Richard F., Welpton Professor of Law, College of Law, University

of Nebraska, Lincoln, NE, letter ......................................................................... 726

Page

VI

Earthjustice Legal Defense Fund, Washington, DC, Vawter Parker, Executive

Director, letter ...................................................................................................... 727

Executive Intelligence Review, Washington, DC, Debra H. Freeman, U.S.

Political Editor, statement .................................................................................. 730

Federal Managers Association, United States Marshals Service, Arlington,

VA, Dave Barnes, President, letter .................................................................... 741

Fisher, D. Michael, Attorney General, Commonwealth of Pennsylvania, Harrisburg, PA, letter ................................................................................................ 743

Focus, Metairie, LA, Archbishop Philip M. Hannan, President, letter ............... 744

Forbes, Daniel, The Progressive Review, article ................................................... 745

Ford, Hon. Louis, Representative, Missouri House of Representatives, Jefferson City, MO, letter ............................................................................................. 750

Former Assistant Attorneys General for the State of Missouri, joint letter ....... 751

Fraternal Order of Police, Grand Lodge, Washington, DC, Gilbert G. Gallegos,

National President, letter .................................................................................... 753

Free Congress Foundation, Washington, DC, Thomas L. Jipping, Vice President for Legal Policy and Director, Center for Law and Democracy, article

and attachments ................................................................................................... 754

Friends of the Earth, Washington, DC, Brent Blackwelder, President, letter ... 796

Gaston, Doug, Texas County Prosecuting Attorney, Houston, MO, letter .......... 798

Gephardt, Hon. Richard A., a Representative in Congress from the State

of Missouri and Democratic Leader, letter ........................................................ 799

Gerhardt, Michael J., Professor, William & Mary Law School, Williamsburg,

VA, statement ....................................................................................................... 800

Gey, Steven G., Professor of Law, Florida State University College of Law,

Tallahassee, FL, article ....................................................................................... 811

Grante, Jullian Irving, Senior Partner, J. Irving & Draper, Spotsylvania,

VA, letter and attachments ................................................................................. 816

Hammond, Phillip E., D. Mackenzie Brown Professor, Department of Religious Studies, University of California, Santa Barbara, Santa Barbara,

CA, letter .............................................................................................................. 820

Harshbarger, Scott, President, Common Cause, Washington, DC, and Fred

Wertheimer, President, Democracy 21, Washington, DC, joint letter ............. 825

Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, statement

in response to the testimony of Michael Barnes of Handgun Control ............. 826

Hemenway, Jay, Mercer County Prosecuting Attorney, Princeton, MO, letter .. 828

Henderson, Col. Ronald, Chief of Police, City of St. Louis, St. Louis, MO,

letter ...................................................................................................................... 830

Hispanic Bar Association of the District of Columbia, Washington, DC,

Ignacia S. Moreno, President, letter ................................................................... 831

Hormel, James C., San Francisco, CA, letter and attachment ............................ 835

Human Rights Campaign, Washington, DC, Elizabeth Birch, Executive Director, statement ....................................................................................................... 838

Information Technology Association of America, Arlington, VA, Harris N.

Miller, letter ......................................................................................................... 844

Information Technology Industry Council, Washington, DC, Rhett Dawson,

President, letter .................................................................................................... 845

Interfaith Alliance, Washington, DC, Rev. Dr. C. Welton Gaddy, Executive

Director, statement .............................................................................................. 846

International Association of Chiefs of Police, Alexandria, VA, Bruce D.

Glasscock, President, letter ................................................................................. 852

International Brotherhood of Police Officers, Quincy, MA, Kenneth T. Lyons,

National President, letter .................................................................................... 853

Jenkins, Theron, Sheriff, Taney County, Forsyth, MO, letter ............................. 855

Johnson, Jim, Lincoln County Sheriff, Troy, MO, letter ...................................... 856

Jones, Kenny, Sheriff, Moniteau County, California, MO, letter and attachment ...................................................................................................................... 857

Justice Policy Institute, Washington, DC, Vincent Schiraldi, President and

Jason Ziedenberg, Senior Policy Analyst, letter ................................................ 862

Krause, Michael I., Professor of Law, School of Law, George Mason University, letter ............................................................................................................. 864

Krauthammer, Charles, Washington Post, January 19, 2001, article ................ 865

Lambda Legal Defense and Education Fund, Inc., Kevin M. Cathcart, Esq.,

Executive Director, letter .................................................................................... 866

LAVAS, Houston, TX, Scott K. Bui, Legal Counsel, letter ................................... 872

Law Enforcement Alliance of America, Falls Church, VA, James J. Fotis,

Executive Director, letter .................................................................................... 874

Page

VII

Lawyers’ Committee for Civil Rights Under Law, Washington, DC, Charles

T. Lester, Jr., Co-Chair and John Payton, Co-Chair, letter and attachments 876

Louisiana Lawyers for Life, Metairie, LA, Stephen M. Gere, President, letter . 888

Mandelman, Joel C., Attorney, Arlington, VA, letter ........................................... 890

Martz, George W., Chief of Police, City of Bethany, MO, letter .......................... 891

McConnell, Michael W., Presidential Professor, College of Law, University

of Utah, Salt Lake City, UT, letter ..................................................................... 892

Miller, Geoffrey P., Professor of Law, New York University, letter .................... 894

Milne, Paul, Sheriff, Cooper County, Boonville, MO, letter ................................. 895

Million Mom March, Mary Leigh Blek, President, statement ............................. 896

Missouri Federation of Police Chiefs, St. Louis, MO, Bryan Kunze, Vice President, letter ............................................................................................................ 898

Missouri Legislative Black Caucus, Jefferson City, MO, letter ........................... 899

Missouri Legislature, joint statement by 83 Members ......................................... 900

Missouri State Fraternal Order of Police, Jefferson City, MO, Thomas W.

Mayer, President, letter ....................................................................................... 903

Mitchell, Aleta Grimes, Shallmar, FL, statement ................................................. 904

Mound City Bar Association, St. Louis, MO, Lee Clayton Goodman, President,

letter ...................................................................................................................... 906

Moroz, Hon. Harold Ronald, Judge, Magistrate Court of Camden County,

Woodbine, GA, letter ............................................................................................ 908

National Abortion Federation, Washington, DC, Vicki Saporta, Executive Director, statement .................................................................................................. 909

National Asian Pacific American Bar Association, Washington, DC, Howard

L. Halm, President, letter ................................................................................... 914

National Association for the Advancement of Colored People, Baltimore, MD,

Kweisi Mfume, President and Chief Executive Officer, letter ......................... 915

National Association for the Advancement of Colored People-Saint Paul

Branch, St. Paul, MN, Nathan A. Khaliq, President, letter ............................. 917

National Association of Criminal Defense Lawyers, Washington, DC, Edward

A. Mallett, President, statement ......................................................................... 920

National Association of Korean Americans, Washington, DC, press release

and attachment .................................................................................................... 925

National Association of Wholesaler-Distributors, Washington, DC, Dirk Van

Dongen, President, letter ..................................................................................... 926

National Baptist Convention, USA, Inc., William J. Shaw, President, letter .... 927

National Baptist Convention, U.S.A., Inc., Civil Rights and Equal Justice

Commission, Leonard L.J. Young, Executive Director, letter .......................... 928

National Center for Tobacco-Free Kids, Washington, DC, Matthew Myers,

President, statement ............................................................................................ 930

National Clergy Council, Washington, DC, Rev. Rob Schenck, President, letter .......................................................................................................................... 938

National Coalition of Minority Businesses, Washington, DC, James F. Garrett, Chairman and Melvin E. Clark, Jr., Vice Chairman, letter .................... 940

National Consumers League, Washington, DC, Linda F. Golodner, President,

letter ...................................................................................................................... 941

National Council of Jewish Women, Washington, DC, Jan Schneiderman,

President, statement ............................................................................................ 942

National District Attorneys Association, Alexandria, VA, press release ............ 945

National Family Planning & Reproductive Health Association, Washington,

DC, Judith M. DeSarno, President/CEO, letter ................................................. 946

National Hispanic Leadership Agenda, Washington, DC, Manual Mirabal,

Chair, statement .................................................................................................. 947

National Latino Peace Officers Association, Diamond Bar, CA, Jose Carlos

Miramontes, President, letter ............................................................................. 968

National Organization for Women, Inc., Washington, DC, Patricia Ireland,

President, statement ............................................................................................ 969

National Organization for Women Legal Defense and Education Fund, Washington, DC, Kathy Rodgers, President and Patricia Blau Reuss, Vice President, Government Relations, letter .................................................................... 972

National Sheriffs’ Association, Alexandria, VA, Jerry ‘‘Peanuts’’ Gaines, President, letter ............................................................................................................ 974

National Sheriffs’ Association, Alexandria, VA, Patrick J. Sullivan, Jr., Chairman, Congressional Affairs Committee, letter .................................................. 975

National Taxpayers Union, Alexandria, VA, John Berthoud, President, letter . 976

National Troopers Coalition, Albany, NY, Johnny L. Hughes, Director, Government Relations and James J. Doyle, III, Counsel, statement ..................... 977

Page

VIII

National Voting Rights Institute, Boston, MA, John C. Bonifaz, Executive

Director, letter ...................................................................................................... 985

Noel, Edwin L., Attorney, St. Louis, MO, letter and attachment ........................ 990

Nortel Networks, Washington, DC, Frank Carlucci, Chairman, letter ............... 1001

Orthodox Union, New York, NY, Harvey Blitz, President, Rabbi Raphael

Butler, Executive Vice President, Richard Stone, Chair, Public Affairs, and

Nathan J. Diament, Director, Public Affairs, letter .......................................... 1002

Paulsen, Michael Stokes, Briggs & Morgan Professor of Law, University of

Minnesota Law School, Minneapolis, MN, letter .............................................. 1003

People Advancing Christian Education, Washington, DC, John K. Hutcheson,

Sr., Executive Director, letter ............................................................................. 1005

People For the American Way, Washington, DC, Ralph G. Neas, President

and Tracy Hahn-Burkett, Acting Director of Public Policy, letter and attachments ..................................................................................................................... 1006

Petree, Leo, Chief of Police, Tipton, MO, letter .................................................... 1076

Pierce, W.J., Sheriff of Jasper County, Carthage, MO, letter .............................. 1077

Plunkett, Larry W., Sr., Sheriff, Wayne County, Greenville, MO, letter ............ 1078

Polish American Congress, Chicago, IL, Edward J. Moskal, President, letter ... 1079

Prudential Securities, James Lucier, article in Washington World .................... 1081

Public Campaign, Washington, DC, Nicholas Nyhart, Executive Director, letter .......................................................................................................................... 1088

Religious Coalition for Reproductive Choice, Donna R. Gary, Co-Chair, Board

of Directors, letter and attachment .................................................................... 1092

Republican National Committee, David Israelite, Director, Political and Governmental Affairs, letter and attachments ........................................................ 1095

Ross, William G., Professor of Law, Cumberland School of Law, Samford

University, Birmingham, AL, statement ............................................................ 1106

Rotunda, Ronald D., Albert E. Jenner, Jr. Professor of Law, College of Law,

University of Illinois, Champaign, IL, letter ..................................................... 1116

Ryan, Jim, Attorney General, State of Illinois, Springfield, IL, letter ................ 1117

St. Louis Black Leadership Roundtable, St. Louis, MO, Shelia Stix, Chair,

letter and attachment .......................................................................................... 1118

St. Louis Globe-Democrat:

February 17, 1981, article ................................................................................ 1120

August 6, 1982, article ..................................................................................... 1121

St. Louis Post-Dispatch, Inc.:

December 24, 2000, editorial ........................................................................... 1122

January 14, 2001, editorial .............................................................................. 1123

January 18, 2001, editorial .............................................................................. 1126

Scrivner, Hon. Roger M., Circuit Judge (Ret.), Belleville, IL, letter ................... 1128

Seneker, Doug, Sheriff, Lawrence County, Mt. Vernon, MO, letter .................... 1130

Shurtleff, Mark L., Attorney General, State of Utah, Salt Lake City, UT,

letter ...................................................................................................................... 1131

Sierra Club, Washington, DC, Daniel J. Weiss, Political Director, statement

and attachments ................................................................................................... 1132

60 Plus Association, Arlington, VA, James L. Martin, President, statement

and attachments ................................................................................................... 1142

Southern Partisan, Second Quarter, 1998, interview with Senator Ashcroft ..... 1147

Stovall, Carla J., Attorney General, State of Kansas, letter ................................ 1151

Sunstein, Cass R., Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School and Department of Political Science, University of

Chicago Law School, Chicago, IL, letter ............................................................. 1152

Taylor, Stuart, Jr., National Journal, January 13, 2001, article ......................... 1156

Texas Legislative Black Caucus, Austin, TX, letter ............................................. 1158

Thurmond, Hon. Strom, a U.S. Senator from the State of South Carolina,

letter ...................................................................................................................... 15

Troy, Tevi, Washington Diarist, January 18, 2001, article .................................. 1160

United Methodist Church, Women’s Division, Washington, DC, Susie Johnson, Executive Secretary for Public Policy, letter .............................................. 1163

USAction, Washington, DC, William McNary, President and Jeff Blum, Executive Director, letter ............................................................................................ 1165

United States District Court, Eastern District of Missouri, Eastern Division,

July 11, 1984, Memorandum Opinion, and Appeal affirming the decision

of the District Court ............................................................................................. 1167

Vermeersch, James L., Executive Director, Missouri Sheriffs’ Association, Jefferson City, MO, letter and attachment ............................................................. 1189

Page

IX

Victims Rights Political Action Committee, Washington, DC, Charles G.

Brown, Director, letter ......................................................................................... 1196

Vietnamese Community of Houston and Vicinity, Inc., Houston, TX, Khiet

Nguyen, President, letter .................................................................................... 1197

Violence Policy Center, Washington, DC, statement ............................................ 1199

Walsh, John, Host, America’s Most Wanted, letter .............................................. 1210

Weeks, Ron, Chief of Police, City of Pevely, Pevely, MO, letter .......................... 1211

Winograd, Anna-Beth, Amherst, MA, letter .......................................................... 1212

Wisconsin Legislative Black & Hispanic Caucus, Madison, WI, letter ............... 1213

Women’s International League for Peace and Freedom, St. Louis Branch,

Mary Jane Schutzius, President, public hearing transcript ............................. 1216

Youth Law Center, Washington, DC, Mark I. Soler, President, letter ............... 1243

Zywicki, Todd J., Associate Professor of Law, School of Law, George Mason

University, letter .................................................................................................. 1245

(1)

NOMINATION OF JOHN ASHCROFT TO BE

ATTORNEY GENERAL OF THE UNITED STATES

TUESDAY, JANUARY 16, 2001

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Committee met, pursuant to notice, at 1:34 p.m., in room

SH–216, Hart Senate Office Building, Hon. Patrick J. Leahy,

Chairman of the Committee, presiding.

Present: Senators Leahy, Kennedy, Kohl, Feinstein, Feingold,

Schumer, Durbin, Hatch, Thurmond, Grassley, Specter, Kyl,

DeWine, Sessions, Smith, and Brownback.

Senator HATCH. If we can have order? Can we have order,

please?

Mr. Chairman, it is with a great deal of honor and privilege that

I present you as our new Chairman with this very important gavel

to be able to keep order during these hearings and hearings thereafter.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S.

SENATOR FROM THE STATE OF VERMONT

Chairman LEAHY. Thank you, Mr. Chairman. I will protect the

gavel carefully in the few hours, the very few hours I get to do it.

I have a feeling I will be presenting you with one next week. For

the public to know, this gavel was actually made by my son, Kevin,

in seventh grade, which shows you how long it has been since I

have been Chairman of anything.

It is a privilege to call these hearings to order, and I welcome

my friend, Orrin Hatch, and all the continuing members on both

sides of the aisle. We are being rejoined this year by Senator Durbin of Illinois. Senator Durbin was a very valuable member of this

Committee when he served here before leaving to go to a different

Committee. Dick, we are delighted to have you back.

We are also joined by Senator Brownback, who has been in the

Senate for some time, but this is his first service here. Sam and

I have worked together on a number of significant pieces of legislation. Sam, I am delighted to have you in the Committee.

Senator BROWNBACK. I am happy to join you.

Chairman LEAHY. I understand my neighbor from New Hampshire who is sitting in on these hearings and will be leaving. I am

sorry to have that happen because Senator Smith and I have also

worked together on matters. And we do have the ability to check

with each other on what the weather is along the Connecticut

River.

2

Senator Cantwell of Washington State will be joining us, but she

and Senator Biden are at the memorial service for our former colleague Alan Cranston in California. Senator Cantwell first came to

Washington as a staff member of Senator Cranston. Senator Biden

and I along with several others here served with him. They would

be here if not for that. And, of course, we have the nominee, Senator Ashcroft, his wife, Janet, and others whom we will get to in

a few minutes. I welcome Senator Ashcroft, who certainly is no

stranger to this Committee room, along with his family here.

I have said many times, as most of us have, that the position of

Attorney General is of extraordinary importance. The Attorney

General is the lawyer for all the people. He is the chief law enforcement officer in the country. That is why the Attorney General not

only needs the full confidence of the President; he or she also needs

the confidence and the trust of the American people.

We all look to the Attorney General to ensure even-handed law

enforcement and protection of our basic constitutional rights, including the freedom of speech, the right to privacy, a woman’s right

to choose, freedom from government oppression, and equal protection of all our laws.

The Attorney General plays a critical role in bringing the country

together, bridging racial divisions, and inspiring people’s confidence

in their government. Senator Ashcroft has often taken aggressively

activist positions on a number of issues that deeply divide the

American people. While he had a right to take these activist positions, we also have a duty to evaluate how these positions would

affect his conduct as Attorney General.

On many of these issues, and on battles over executive branch

or judicial nominees, Senator Ashcroft was not just in the minority

in the U.S. Senate, but in the minority among Republicans in the

Senate. Now, we have to ask if somebody who has been that

unyielding on a policy outlook can unite all Americans. That is an

important question for the Senate.

The hearing is not about whether we like Senator John Ashcroft

or call him a friend. All of us like him and know him. It is not

about whether we agree or disagree with him on every issue. Many

of us have worked productively with him on selected matters, and

we have disagreed with him on others.

Let me be very clear about one thing. This is not about whether

Senator Ashcroft is racist, anti-Catholic, anti-Mormon, or anti-anything else. Those of us who have worked with him in the Senate

do not make that charge.

At the same time, I know that all Senators and the nominee

agree that no one nominated to be Attorney General should be

given special treatment just because he or she once served in the

Senate.

Fundamentally, the question before us is whether Senator

Ashcroft is the right person at this time for the critical position of

Attorney General of the United States. The Appointments Clause

of the Constitution gives the Senate the duty and responsibility of

providing both its advice and its consent.

Among the areas we will explore with Senator Ashcroft is how

he fulfilled his constitutional duty as a Senator in exercising his

own advise and consent authority in connection with executive and

3

judicial nominations. We will explore the standards he would use

in making recommendations to the President on executive and judicial appointments if he is confirmed as Attorney General.

President Kennedy observed that ‘‘to govern is to choose.’’ What

choices the next Attorney General makes about resources and priorities will have a dramatic impact on almost every aspect of the

society in which we live. The American people will want to know

not just whether this nominee will commit to enforce the laws on

the books, but what his priorities will be, what choices he is likely

to make, and what changes he will seek in the law.

Most importantly, we will want to know what changes he will

seek in the constitutional rights that all Americans currently enjoy.

These include what positions he will urge upon the Supreme Court

and, in particular, whether he will ask the Supreme Court to overturn Roe v. Wade or to impose more burdensome restrictions on a

woman’s ability to secure safe and legal contraceptives.

We are proceeding expeditiously with these hearings, as requested by President-elect Bush, and as I told him I would. But I

have also said from the outset that these hearings have to be thorough and fair, and they will be.

[The prepared statement of Chairman Leahy follows:]

STATEMENT OF HON. PATRICK LEAHY, CHAIRMAN, U.S. SENATOR FROM THE STATE OF

VERMONT

It is a privilege to call these important hearings to order. I welcome Senator

Hatch and all our continuing Members on both sides of the aisle. We are being rejoined this year by Senator Durbin, and joined by Senator McConnell, Senator

Brownback and Senator Cantwell. I look forward to working together with all of

you. On behalf of the Committee, I also welcome Senator Ashcroft and his family

here today as we begin hearings on his nomination to be Attorney General of the

United States.

THE IMPORTANCE OF THE POSITION OF ATTORNEY GENERAL

The position of Attorney General is of extraordinary importance, and the judgment of the person who serves as Attorney General affects the lives of all Americans. The Attorney General is the lawyer for all the people and the chief law enforcement officer in the country. Thus, the Attorney General not only needs the full

confidence of the President, he or she needs the confidence and trust of the American people. All Americans need to feel that the Attorney General is looking out for

them and protecting their rights.

The Attorney General is not just a ceremonial position. Rather he or she controls

a budget of over $20 billion and directs the activities of more than 123,000 attorneys, investigators, Border Patrol agents, deputy marshals, correctional officers and

other employees in over 2,700 Justice Department facilities around the country and

in over 120 foreign cities. Specifically, the Attorney General supervises the selection

and actions of the 93 United States Attorneys and their assistants and the U.S.

Marshals Service and its offices in each State. The Attorney General supervises the

FBI and its activities in this country and around the world, the INS, the DEA, the

Bureau of Prisons and many other federal law enforcement components.

The Attorney General evaluates judicial candidates and recommends judicial

nominees to the President, advises on the constitutionality of bills and laws, determines when the Federal Government will sue an individual, business or local government, decides what statutes to defend in court and what argument to make to

the Supreme Court, other federal courts and State courts on behalf of the United

States Government. The Attorney General distributes billions of dollars a year in

law enforcement assistance to State and local government and coordinates task

forces on important law enforcement priorities. There is no appointed position within the Federal Government that can affect more lives in more ways than the Attorney General. We all have a stake in who serves in this uniquely powerful position

and how that power is exercised.

4

We all look to the Attorney General to ensure even-handed law enforcement;

equal justice for all; protection of our basic constitutional rights to privacy, including

a woman’s right to choose, to free speech, to freedom from government oppression;

and to safeguard our marketplace from predatory and monopolistic activities, and

safeguard our air, water and environment.

As I said at the confirmation hearings for Edwin Meese to be Attorney General, ‘‘[w]hile the Supreme Court has the last word on what our laws mean, the Attorney

General has often more importantly the first word.’’ Our current Attorney General, Janet Reno, has helped us all make unprecedented

strides in combating violent crime, protecting women’s rights, protecting crime victims rights and reducing violence against women. The nation’s serious crime rate

has declined for an unprecedented eight straight years. Murder rates have fallen to

their lowest levels in three decades and since 1994 violent crimes by juveniles and

the juvenile arrest rates for serious crimes have also declined. Our outgoing Attorney General must be commended for greatly improving the effectiveness of our law

enforcement coordination efforts, federal law enforcement assistance efforts and for

extending the reach of those efforts into rural areas. Her success shows what can

be achieved and reemphasizes how important the position of Attorney General is to

all Americans.

In addition, the Attorney General has come to personify fairness and justice to

people all across the United States. Over the past 50 years, Attorneys General like

William Rogers and Robert Kennedy helped lead the effort against racial discrimination and the fight for equal opportunity. In terms of addressing the issues that

have divided our country, bringing our people together and inspiring people’s confidence in our government, the Attorney General plays a critical role.

This hearing is not about whether we like Senator John Ashcroft or call him a

friend, which many of us do; not about whether we agree or disagree with him on

every issue, since many of us have worked productively with him on selected matters and disagreed with him on others; and certainly not about whether Senator

Ashcroft is racist, anti-Catholic or anti-Mormon—those of us who have worked with

him in the Senate do not make that charge.

What is an important question for the Senate is whether a nominee who has

taken aggressively activist positions on a number of issues on which the American

people feel strongly and on which they are deeply divided can unite all Americans

and have their full trust and confidence. In the days following the announcement

of the President-elect’s intention to nominate John Ashcroft, many people from different communities and points of view have expressed their concerns with or support for this selection for Attorney General. The President-elect says that his choice

is based on finding someone who will enforce the law, but all must concede that this

is a highly controversial choice.

The recent presidential election, the margin of victory and the way in which the

vote counting in Florida was ordered to stop through the intervention of the United

States Supreme Court remain a source of public concern. Deep divisions within our

country have infected the body politic over the last several years as matters became

increasingly partisan. This Committee and the way it conducts itself can help heal

those wounds and help begin to restore confidence in our government.

These hearings provide the nominee with the opportunity to make his case why

he should be approved by the Senate as the Attorney General of the United States,

to convince the great number of Americans who view this selection with skepticism

that they should have confidence in him and trust him, and to respond to his critics.

I have met with Senator Hatch and strived to work with him to ensure that these

hearings will be full, fair and informative. They provide an important opportunity

for the American people, through their elected representatives, to ask the nominee

about fundamental issues and the direction of federal law enforcement and constitutional policy that affect all of our lives. They provide an opportunity for members

of the public to speak directly to us about their concerns and their support for this

nomination. At a time of political frustration and division, it is important for the

Senate to listen. One of the abiding strengths of our democracy is that the American

people have opportunities to participate in the political process, to be heard and to

feel that their views are being taken into account. Just as when the American people vote, every vote is important and should be counted so, too, when we hold hearings we ought to do our best to take competing views into account.

THIS IS AN HISTORIC TIME

We live in an historic time. During the last few years the country and the Congress have experienced events without precedent or without precedent for over 100

years. We saw the House of Representatives impeach a popularly-elected President

5

for the first time in our history. The Senate conducted an impeachment trial for only

the second time in history and a bipartisan majority voted not to convict and not

to remove the President from office.

We have witnessed the closest presidential election in the last 130 years and possibly in our history. For the first time, a candidate who received half a million fewer

popular votes was declared the victor of the presidential election based on electoral

votes.

The Senate, for the first time in our history, is made up of 50 Democrats and 50

Republicans and this Committee, for the first time in its history, will be composed

of equal numbers of Democrats and Republicans. On Saturday, Senator Hatch will

again become Chairman of this Committee. Accordingly, the Committee begins its

consideration of this nomination under a Democratic Chairman and will conclude

it under a Republican Chairman.

Over the last 200 years the confirmation process has evolved. The first Congress

established the office of the Attorney General in 1789 but confirmations were handled by the full Senate or special committees. It was not until 1816 that the Senate

established the Judiciary Committee as one of the earliest standing Committees,

chaired initially by Senator Dudley Chase of Vermont.

It was not until 1868 that the Senate began regularly referring nominations for

Attorney General to this Committee. In the 26 years that I have been privileged to

serve in the United States Senate, these confirmation hearings have become an increasingly important part of the work of the Committee.

Of the 15 cabinet nominees not to be confirmed over time, nine were rejected by

the Senate after a floor vote. Of those, one was a former Senator, John Tower, in

1989. Two were nominees to serve as Attorney General. One of those rejected Attorney General nominees was Charles Warren, an ultraconservative Detroit lawyer and

politician nominated by President Coolidge who was voted down by a Senate controlled by the President’s own party due to concern that Warren’s prior associations

raised questions about his suitability to be Attorney General.

‘‘Progressive Republicans, recalling that Warren had aided the sugar trust in extending its monopolistic control over that industry believed this appointment

was a further example of the President’s policy of turning over government regulatory agencies to individuals sympathetic to the interest they were charged

with regulating . . . . [T]he progressive Republicans combined with the Democrats in March 1925 to defeat the nomination narrowly . . . . The President

then nominated an obscure Vermont lawyer, whom the Senate immediately confirmed.’’ Richard Allen Baker, ‘‘Legislative Power Over Appointments and Confirmations,’’ Encyclopedia of the American Legislative System, at p.1616.

After the Senate rejected the nomination of Charles Warren, President Coolidge

nominated John Sargent, a distinguished lawyer from Ludlow, and the only Vermonter ever to serve as the Attorney General of the United States.

Of the nine Senators who have previously been Attorneys General, seven were

serving in the Senate and resigned in order to become the nation’s top law enforcement officer. Indeed, it has been more than 30 years since a Senator was nominated

to be Attorney General. Senator William Saxbe of Ohio resigned his Senate seat in

1974 to pick up the reins of the Justice Department in the aftermath of Watergate,

at a time that saw two prior Attorneys General indicted toward the end of the Nixon

Administration.

There was a time, of course, when ‘‘senatorial courtesy’’ meant that Senators nominated to important government positions did not appear before Committees for

hearings. I am sure all Senators and the nominee agree that no one nominated to

be Attorney General should be treated specially just because he once served in the

Senate. I am confident that, as a former member of this Committee, the nominee

understands that our constitutional duty rather than any friendship for him must

guide us in the course of these proceedings. I expect this Committee and the Senate

to be courteous to all nominees and, for that matter, all witnesses and all people.

The fact that many of us served with Senator Ashcroft and know Senator Ashcroft

and like John Ashcroft does not mean that the Committee and the Senate will not

faithfully carry out its constitutional responsibility with regard to this nomination.

THE TASK AT HAND

Fundamentally, the question before us is whether Senator Ashcroft is the right

person for the critical position of Attorney General of the United States at this time.

The Appointments Clause of the Constitution gives the Senate the duty and responsibility of providing its advise and consent. The Constitution is silent on the standard that Senators should use in exercising this responsibility. This leaves to each

Senator the task of figuring out what standard to apply and, most significantly,

6

leaves to the American people the ultimate decision whether they approve of how

a Senator has fulfilled this constitutional duty.

Many of us believe that the President has a right to appoint to executive branch

positions those men and women whom he believes will help carry out his agenda

and policies. Yet, the President is not the sole voice in selecting and appointing officers of the United States. The Senate has an important role in this process. It is

advise and consent, not advise and rubberstamp. As we begin a new Administration,

the extensive authority and important role of the Attorney General, the need for the

Attorney General to have the trust and confidence of all the people, and the controversial positions taken by the President-elect’s nominee, require us to consider

whether this nominee is the right person for the critical position of Attorney General of the United States at this time in our history.

Over the last several years, Republican have made much of the Senate’s ‘‘advice

and consent’’ power and used objections, secret holds and narrow ideological considerations in blocking and voting against presidential nominees. Among the areas we

will explore with Senator Ashcroft is how he fulfilled his constitutional duty as a

Senator in exercising his advise and consent authority in connection with executive

and judicial nominations. We will explore the standards he would use in making

recommendations to the President on executive and judicial appointments if confirmed as Attorney General.

We will also want him to explain any differences he sees in the role of the Attorney General and positions he has previously held and how that different role will

affect his actions, policies, priorities, and positions. And we will explore how Senator

Ashcroft would exercise the awesome power of the Attorney General and administer

the programs and laws that Congress has enacted.

While urging rigorous senatorial scrutiny of cabinet nominations, scholars explain:

‘‘A lack of interest by an administrator or overt hostility to a legislative program

can eviscerate the policies that Congress has taken pains to announce as national goals. Administrators so disposed can shatter agency morale and create

uncertainty for career personnel, who may not know whether they are supposed

to implement or sabotage the statutory objectives.’’ William G. Ross, The Senate’s Constitutional Role In Confirming Cabinet Nominees and Other Executive

Offices, 48 Syracuse Law Review 1123, 1150 (1998).

I have been a prosecutor and I know what it means to exercise prosecutorial discretion, with the result that some laws get enforced more aggressively than others,

some missions receive priority attention and some do not. No prosecutor’s office—

unless you are an independent counsel—has the resources to investigate every lead

and prosecute every infraction. A prosecutor may choose to enforce those laws that

promote a narrow agenda or ones that protect people’s lives and neighborhoods. An

inquiry into Senator Ashcroft’s actions as a State Attorney General, Governor and

as a Senator may provide a window on how he might choose to exercise his prosecutorial discretion.

The American people will want to know not just whether he will enforce the laws

on the books today, but also what changes he will seek and what positions he will

take before the Supreme Court in defining the constitutional rights that all Americans currently enjoy. In particular, the American people will want to know whether

he will urge the Supreme Court to overturn Roe v. Wade or impose more burdensome restrictions on a woman’s exercise of her right to choose or ability to secure

legal, safe contraceptives.

Moreover, the Attorney General plays an important role in selecting a President’s

nominees to the federal judiciary. The President-elect has said he will not use a litmus test on abortion for his judicial appointments, but will the Attorney General

only recommend to him those candidates who share Senator Ashcroft’s opposition

to abortion, even in cases of incest and rape?

The Committee will want to know what changes he will seek in the laws in this

country, both at the federal level and at the state level, through federal mandates.

For example, during the debate on the Hatch-Leahy juvenile justice bill in May

1999, Senator Ashcroft offered an amendment to require states, before they would

be eligible for federal juvenile grant funds, to prosecute as adults juveniles older

than 13 years who used or possessed a gun in the commission of certain violent

crimes. That amendment was voted down when it became clear that almost fortyeight states would lose their eligibility for federal grant funds.

We are proceeding expeditiously with these hearings, as requested by PresidentElect Bush, with bipartisan agreement to do so even before we have received a complete FBI background report or Senator Ashcroft’s complete response to the Committee questionnaire for this nomination. We will not and should not move forward to

consider this important nomination until we have received these documents and

7

have had a reasonable opportunity to review them. Indeed, should any questions be

prompted by review of those documents, we may decide that further hearing is necessary before we report the nomination—and I will be glad to confer with the next

Chairman of this Committee about that eventuality should it arise.

I have said from the outset that these hearings must be thorough and fair. The

President-Elect and his nominee have said that they expect tough questioning and

that the nominee is prepared to answer. We would ill serve the American people

if, as has happened on occasion, we became distracted with what has be to be called

the politics of personal destruction. On the other hand, we would be neglecting our

sworn duties to the American people if we did not ask questions to determine what

kind of Attorney General the nominee would likely be.

I would like to review some housekeeping matters and outline the procedures I

intend to follow through the hearing. We will try to be balanced and fair with respect to time. We will start by according each Senator an opportunity for brief opening remarks. Thereafter, we will turn to the nominee for any opening remarks that

he would like to make. Following the opening statement of Senator Ashcroft, Senators will have the opportunity to question the nominee for 15 minutes each. After

the completion of the first round of questions we will continue with a second, shorter round and so on until we have concluded the initial questioning of the nominee.

We will then turn to other witnesses for statements and their responses to questions

from Members of the Committee. With the cooperation of Senator Hatch, I expect

that we will be able to provide a final witness list shortly. Throughout the process

we will try to keep the nominee, witnesses and the public advised of the schedule.

Chairman LEAHY. Senator Hatch?

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM

THE STATE OF UTAH

Senator HATCH. Thank you, Mr. Chairman. I am glad to welcome

the members of the Ashcroft family and you, Senator Ashcroft, and

the witnesses here today, including Senator Ashcroft’s highly accomplished wife, Janet, who has been a professor of business law

here in Washington, D.C, at Howard University for the past 5

years. I want to take a moment to let the Ashcroft family know

how much we appreciate their sacrifices while John has served in

public office.

John Ashcroft is no stranger to the Senate Judiciary Committee.

He served on our Committee with distinction over the past 4 years,

working closely with members on both sides of the aisle on a variety of issues ranging from privacy rights to racial profiling. As a

member of the Committee, he proved himself a leader in many

areas, including the fight against drugs and violence, the assessment of the proper role of the Justice Department, and the protection of victims rights.

John has an impressive record with almost 30 years of public

service: 8 years as Missouri State Attorney General during which

time he was elected by his 50 State attorney general peers to head

the National Association of Attorneys General; 8 years as Governor

of the great State of Missouri, during which time he was elected

by the 50 Governors to serve as the head of the National Governors

Association; 6 years in the U.S. Senate, 4 of which he has served

here with us on the Senate Judiciary Committee.

Of the 67 Attorneys General in the history of this country, only

a handful come even close to having even some of the qualifications

that John Ashcroft brings in assuming the position of chief law enforcement officer of this great Nation.

The Department of Justice, of course, encompasses broad jurisdiction. It includes the executive administration of organizations

ranging from the Drug Enforcement Administration, the ImmigraVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 C:\HEARINGS\76342A.001 SJUD4 PsN: SJUD4
8

tion and Naturalization Service, the U.S. Marshals Service, the

Federal Bureau of Investigation, all of the United States Attorneys

throughout the country, and the Bureau of Prisons. This department also includes, among other things, enforcement of the law in

the areas of antitrust, terrorism, fraud, money laundering, organized crime, drugs, and immigration, just to mention a few.

To effectively prevent and manage crises in these important

areas, one thing is certain: We need a no-nonsense person with the

background and experience of John Ashcroft at the helm. Those

charged with enforcing the law of the Nation must demonstrate

both the proper understanding of the law and a determination to

uphold its letter and spirit. This is the standard I have applied to

nominees in the past, and this is the standard that I am applying

to John Ashcroft.

During John Ashcroft’s 30-year service for the public, he has

worked to establish a number of things to keep Americans safe and

free from criminal activities: tougher sentencing laws for serious

crimes, keeping drugs out of the hands of children, improving our

Nation’s immigration laws, protecting citizens from fraud, and protecting competition in business. He has supported funding increases for law enforcement. He held the first hearings ever on the

issue of racial profiling. He has been a leader for victims rights in

courts of law and helped to enact the Violence Against Women bill,

provisions making violence at abortion clinic fines non-dischargeable in bankruptcy, authored anti-stalking laws, fought to allow

women accused of homicide to have the privilege of presenting battered spouse syndrome evidence in the courts of law. As Governor,

he commuted the sentences of two women who did not have that

privilege. He signed Missouri’s hate crimes bill into law.

I could go on and on. His record is distinguished.

Senator Ashcroft, during these hearings we are eager to hear,

and the American people are eager to hear your plans for making

America a safer place to live. A great number of people have said

to me that they are tired of living in fear. They want to go to sleep

at night without worrying about the safety of their children or

about becoming victims of crime themselves.

I know you, and I am familiar with your distinguished 30-year

record of enforcing and upholding the law. And I feel a great sense

of comfort and a new-found security in your nomination to be our

Nation’s chief law enforcement officer.

Mr. Chairman, I have one request of my colleagues as we proceed. In keeping with our promise to work in a bipartisan fashion,

I ask that we begin with a rejection of the politics of division. If

we want to encourage the most qualified citizens to serve in government, we must do everything we can to stop what has been

termed the ‘‘politics of personal destruction.’’ This is not to say that

we should put an end to an open and candid debate on policy

issues. Quite the contrary, our system of government is designed

to promote the expression of these differences and our Constitution

protects it. But the fact is that all of us, both Democrats and Republicans, know the difference between legitimate policy debate

and unwarranted personal attacks promoted and sometimes urged

by narrow special interest groups.

9

John Ashcroft, like many of us, is a man of strongly held views.

I have every confidence based on his distinguished record that as

Attorney General he will vigorously work to enforce the law whether or not the law happens to be consistent with his personal views.

Finally, Mr. Chairman, you know that I would have preferred a

format similar to that followed for President Clinton’s nominees

and prior nominees for the last four Attorney General nominees: no

more than a 2-day hearing, with outside interest groups submitting

their testimony in writing. But I am sure that you will endeavor

to be fair as we proceed with this hearing. I have confidence in

that, and I look forward to these proceedings and look forward to

participating in them.

Thank you, Mr. Chairman.

[The prepared statement of Senator Hatch follows:]

STATEMENT OF HON. ORRIN HATCH, A U.S. SENATOR FROM THE STATE OF UTAH

Mr. Chairman, let me begin by acknowledging you as the Chairman of the Committee as we begin this new session. I wish you the best in your first confirmation

hearing.

I see members of Senator Ashcroft’s family here with him today, including his

highly accomplished wife who has been a professor of business law, here in the District, at Howard University for the past five years. I want to take a moment to let

the Ashcroft family know that we appreciate their many sacrifices while John has

served the public.

John Ashcroft is no stranger to the Senate Judiciary Committee. He served on our

Committee with distinction over the past four years—working closely with members

on both sides of the aisle on a variety of issues ranging from privacy rights to racial

profiling. As a member of the Committee, he proved himself a leader in many areas,

including the fight against drugs and violence, the assessment of the proper role of

the Justice Department, and the protection of victims rights.

John has an impressive almost 30-year record of public service:

(1) 8 years as Missouri State Attorney General during which time he was elected

by his attorney general peers across the nation to head the National Association

of Attorneys General.

(2) 8 years as Governor of the State of Missouri during which time he was elected

by the SO governors to serve as head of the National Governors’ Association.

(3) 6 years in the U.S. Senate, 4 of which he has served with distinction on the Judiciary Committee.

Of the 67 Attorneys General in the history of this country, only a handful come

close to even having some of the qualifications that John Ashcroft brings in assuming the position of chief law enforcement officer of this great nation.

The Department of Justice, of course, encompasses broad jurisdiction. It includes

the executive administration of organizations ranging from the Drug Enforcement

Administration, the Immigration and Naturalization Service, the U.S. Marshall

Service, the Federal Bureau of Investigations, all of the United States Attorneys,

to the Bureau of Prisons. It includes, among other things, enforcement of the law

in areas including antitrust, terrorism, fraud, money laundering, organized crime,

drugs, and immigration, just to mention a few. To effectively prevent and manage

crises in these important areas, one thing is certain: we need at the helm a no-nonsense person with the background and experience of John Ashcroft. Those charged

with enforcing the law of the nation must demonstrate both a proper understanding

of that law and a determination to uphold its letter and its spirit. This is the standard I have applied to nominees in the past, and this is the standard I am applying

to John Ashcroft here.

During John Ashcroft’s 30-year career in public service, he has worked to establish a number of things to keep Americans safe and free from criminal activities:

(1) Tougher sentencing laws for serious crimes.

(2) Keeping drugs out of the hands of children.

(3) Worked to improve our nation’s immigration laws.

(4) Protected citizens from fraud.

(5) Protected competition in business.

(6) He has supported funding increases for law enforcement.

(7) He held the first hearings ever on racial profiling.

10

(8) He has been a leader for victims’ rights in the courts of law and otherwise.

(9) He helped to enact the Violence Against Women Bill.

(10) He supported provisions making violence at abortion clinic fines non dischargeable in bankruptcy.

(11) He authored anti-stalking laws.

(12) He has fought to allow women accused of homicide to have the privilege of presenting battered spouse syndrome evidence in the courts of law. As governor,

he commuted the sentences of two women who did not have the privilege of presenting battered spouse syndrome in their case.

(13) He signed Missouri’s hate crimes bill into law.

I could go on and on. His record is distinguished.

Senator Ashcroft, during these hearings, we are eager to hear—and the American

people are eager to hear—your plans for making America a safer place to live. I

can’t begin to tell you the number of people who have said to me that they are tired

of living in fear. They want to go to sleep at night without worrying about the safety

of their children or about becoming victims of crime themselves. As someone who

knows you as a person and who is familiar with your distinguished 30-year record

of enforcing and upholding the law, I can tell you that I feel a great sense of comfort

and a new-found security in your nomination to be our nation’s chief law enforcement officer.

Mr. Chairman, we have served with John Ashcroft, and we know that he is a man

of integrity, committed to the rule of law and the Constitution. We know that he

is a man of compassion, of faith, and of devotion to family. We know that he is a

man of impeccable credentials and many accomplishments. Abraham Foxman, National Director of the AntiDefamation League, last week praised Senator Ashcroft

as a ‘‘fair’’ and ‘‘just’’ man. Sometimes in life, though, the measure of a person is

best seen in times of adversity. So it is with John Ashcroft who, after a difficult

battle for something that meant a great deal to him—re-election the Senate—resisted calls to challenge the outcome of that election. His own words during this difficult time say it best: ‘‘Some things are more important than politics, and I believe

doing what’s right is the most important thing we can do. I think as public officials

we have the opportunity to model values for our culture—responsibility, dignity, decency, integrity, and respect. And if we can only model those when it’s politically

expedient to do so, we’ve never modeled the values, we’ve only modeled political expediency.’’ Contrary to what a few special interest groups with a narrow political

agenda would have us believe, these are not the words of a divisive ideologue, they

are the words of a uniter who is willing to do the right thing, even when it means

putting himself last.

Mr. Chairman, I have one request of my colleagues as we proceed. In keeping

with our promise to work in a bipartisan fashion, I ask that we begin with a rejection of the politics of division. If we want to encourage the most qualified citizens

to serve in government, we must do everything we can to stop what has been

termed the ‘‘politics of personal destruction.’’ This is not to say that we should put

an end to an open and candid debate on policy issues. Quite the contrary: our system of government is designed to promote the expression of these differences and

our Constitution protects it. But the fact is that all of us—both Democrats and Republicans know the difference between legitimate policy debate and unwarranted personal attacks promoted—and sometimes urged—by narrow interest groups.

I was saddened to read in the New York Times on Saturday that ‘‘the leader of

a major liberal group opposing Mr. Ashcroft’s nomination expressed disappointment

that the comments were not much different from those many politicians offer in religious settings.’’ They quoted this ‘‘leader’’ as saying ‘[t]his, clearly, will not do it,’

this person said of hopes that the speech might help defeat the nomination.’’ I ask

my colleagues to be especially cognizant in this context of the enormous harm that

will come to our Nation and our democracy if we fall into the traps of the narrow

special interest and allow the politics of personal destruction to continue for the

benefit of a narrow few but to the detriment of a greater many.

John Ashcroft, like many of us, is a man of strongly held views. I have every confidence, based on his distinguished record, that as Attorney General, he will vigorously work to enforce the law—whether or not the law happens to be consistent

with his personal views. I know that some of my colleagues will want to question

the nominee on that point in particular, and I look forward to those exchanges.

Finally, Mr. Chairman, you know that I would have preferred a format similar

to that followed for President Clinton’s nominees for Attorney General: a two-day

hearing with outside interest groups submitting their testimony in writing. But I’m

sure that you will endeavor to be fair as we proceed with this hearing. Thank you.

11

Chairman LEAHY. Thank you, Senator Hatch, and I can assure

you the hearings will be fair. There are 280 million Americans who

have views on who should be Attorney General. There will be interest groups of the left or the right who may have suggestions. Ultimately, there are only 100 Americans who will get to vote on that

issue, and those are the 100 Members of the Senate. The whole

tone of the debate and the final outcome will be decided by us.

Just so we can understand how we will do this, we will give each

Senator an opportunity for brief opening remarks. I would ask that

they keep it to 3 or 4 minutes. We will then turn to the nominee

both for the introductions and opening remarks. And then we will

have the opportunity to question the nominee for 15 minutes each

the first go-round and then shorter ones if we need to continue

questions after that.

What I would like to do, once we have all finished our opening

statements, is to take a very short break so that those who are

going to introduce him and all other witnesses will know what is

going to happen. But with that, I would turn to the distinguished

senior Senator from Massachusetts, also former Chairman of this

Committee, Senator Kennedy.

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR

FROM THE STATE OF MASSACHUSETTS

Senator KENNEDY. Thank you.

Mr. Chairman, thank you for holding these hearings. They may

well be the most important hearings that our Committee will have

this year. The power and reach of the Department of Justice is

vast, and the person at its head must have the ability and the commitment to enforce the laws vigorously. The reality and perception

of fairness must be without question.

During Senator Ashcroft’s quarter-century in public service, he

has taken strong positions on a range of important issues in the

jurisdiction of the Justice Department. Unfortunately and often, he

has used the power of his high office to advance his personal views

in spite of the law of the land.

The vast majority of Americans support vigorous enforcement of

our civil rights laws, and those laws and the Constitution demand

it. Senator Ashcroft, however, spent significant parts of his term as

Attorney General of Missouri and his term as Governor strongly

opposing school desegregation and voter registration in St. Louis.

The vast majority of Americans believe in access to contraception

and a woman’s right to choose, and our laws and Constitution demand it. Senator Ashcroft does not, and his intense efforts have

made him one of the principal architects of the ongoing right-wing

strategy to dismantle Roe v. Wade and abolish a woman’s right to

choose.

Deep concerns have been raised about his record on gun control.

He has called James Brady ‘‘the leading enemy of responsible gun

owners.’’ Senator Ashcroft is so far out of the mainstream that he

has said citizens need to be armed in order to protect themselves

against a tyrannical government. Our government? Tyrannical? In

fact, he relies on an extreme reading of the right to bear arms

under the Second Amendment to the Constitution to oppose virtually all gun control laws.

12

He doesn’t show the same respect for the right of free speech

under the First Amendment. In 1978, as Attorney General of Missouri, he tried to use the antitrust laws to undermine the right to

free speech of the National Organization for Women and prevent

a boycott of Missouri by the organization over the State’s refusal

to ratify the Equal Rights Amendment.

As these few examples demonstrate, the clear question before the

Senate is whether, if confirmed as Attorney General, Senator

Ashcroft will be capable of fully and fairly enforcing the Nation’s

laws to benefit all Americans, even though he profoundly disagrees

with many of the most important of those laws. His past actions

strongly suggest that he will not.

Senator Ashcroft’s record in Missouri and in the Senate is extremely troubling on this basic question. Many of us, probably all

of us, who have served with Senator Ashcroft respect his ability on

the issues and his intense commitment to the principles he believes

in, even though we disagree profoundly with some of those principles. We know that while serving in high office he has time and

again aggressively used litigation and legislation in creative and

inappropriate ways to advance his political and ideological goals.

How can we have any confidence at all that he won’t do the same

thing with the vast new powers he will have at his disposal as Attorney General of the United States?

President-elect Bush has asked us to look in Senator Ashcroft’s

heart to evaluate his ability and commitment to enforce the laws

of our country. But actions speak louder than words, and based on

his repeated actions over many years, it is clear that Senator

Ashcroft’s heart is not in some of the most important of the Nation’s laws.

The person who serves as Attorney General must inspire the

trust and respect of all Americans. Inscribed in stone over the center entrance to the Department of Justice is this phrase: ‘‘The place

of justice is a hallowed place.’’ All Americans deserve to have confidence that when the next Attorney General walks through the

doors of Justice and into that hallowed place, he will be serving

them, too.

Thank you, Mr. Chairman. I look forward to the hearings.

Chairman LEAHY. Thank you, Senator Kennedy.

We will put Senator Biden’s statement in the record.

[The prepared statement of Senator Biden follows:]

STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE STATE OF

DELAWARE

Dear Mr. Chairman:

I very much regret not being able to be here today for the start of these hearings,

but I am in California representing the Foreign Relations Committee and the Senate at the memorial service for our late colleague and friend, Alan Cranston.

Let me also preface my remarks by welcoming John Ashcroft, our former colleague and Judiciary Committee member.

‘‘You are . . . to become the people’s lawyer more than you are to be the President’s

lawyer. Consequently, the question relating to your nomination is not merely

whether or not you possess the intellectual capabilities and the legal skills to

perform the task of Attorney General, and not merely whether you are a man

of good character and free of conflict of interest that might compromise your

ability to faithfully and responsibly and objectively perform your duties as Attorney General, but whether you are willing to vigorously enforce all the laws

and the Constitution even though you might have philosophical disagreement

13

with them, and whether you possess the standing and temperament that will

permit the vast majority . . . of the American people to believe that you can

and will protect and enforce their individual rights.’’

That is what I said in my opening statement at the confirmation hearings for Attorney General in 1984, and that is still the standard that has to be met today. Permit me to elaborate why I believe so much is at stake in these hearings for the

American people.

For me, one of the most memorable things about the unforgettable presidential

election recently concluded was Joe Lieberman’s frequent comment, ‘‘Only in America.’’ .

That seemingly off-the-cuff remark resonated deeply with many Americans because, in a simple way, it speaks to the notion that the United States has unique

qualities and values:

It’s true that other countries value democracy, but most of them are not places

where unlimited opportunity abounds for every citizen ...where merit and ability

trump inheritance ...where individual potential is not constrained by class, by religion, or by race.

‘‘ONLY IN AMERICA’’

To this very day, at the beginning of this new century, millions of people from

every corner of the globe still want to come to America, because they believe we

stand for equality, justice and opportunity.

Those of us living comfortable lives in this great country sometimes forget that

these ideas are not abstractions for the vast multitude of people less fortunate.

Millions of American citizens and their ancestors took the words on the Statue

of Liberty quite literally: .

Give me your tired, your poor, your huddled masses yearning to breathe free. . .

the wretched refuse of your teeming shore. Send these, the homeless, tempesttossed to me.

Many of us learned our family narratives at the feet of people like my grandfather

Ambrose Finnegan, whose mother Dolly came to this generous country, yearning to

breathe free.

But not every narrative ends with a grateful grandson who knows that whatever

measure of success I’ve had is due to the values I learned at home.

The sad truth is that in this country there are many for whom the dream has

not been realized, who still confront indignities, prejudice and worse.

We are a great nation not because we are perfect, but because we hold out the

promise—the guarantee—that those stymied by unfair practices and policies have

an address where they can go to demand justice. That address is the courthouse,

and the United States Department of Justice.

And the nation’s chief law enforcement officer, the Attorney General, is the embodiment of that guarantee that justice will not be delayed, that it will not be denied, that it will not be compromised. . . that it must, and will, be served.

It is not enough for a servant of the court, and especially for an attorney general,

to simply acknowledge that we have laws that ought to be enforced.

We have made significant progress in my lifetime, but given the reality of race

relations in this country, which remain unresolved, I believe an attorney general

must demonstrate real leadership in this area. I want someone in that position who

will make vigorous enforcement of civil rights a very high priority.

The single most important issue that pushed me to run for public office was civil

rights. My first job as a lawyer in 1968 was as a public defender in the city of Wilmington.

I ended up representing a lot of the guys I lifeguarded as a teenager. . .guys who

grew up in the public housing area over on the city’s east side known as ‘‘The Bucket.’’ As the name implies, it was a rough area.

And there weren’t a whole lot of cops on the Wilmington police force with the

same color skin as the guys I was defending.

In 1968, when I graduated law school and became a public defender, Wilmington,

like lots of cities, was racially divided. There were national guard troops on the

streets.

I knew I couldn’t change the world, or even what was happening in ‘‘The Bucket,’’

but I thought I could make a difference, and I hope I have.

But when I look out my Senate office in Wilmington, I look out past downtown

and see ‘‘The Bucket,’’ and I know we have a lot of unfinished business.

So, Mr. Chairman, thank you for the opportunity to share with this committee

my views about what I believe is at stake in these hearings.

14

I will want to ask specific questions regarding how Senator Ashcroft views the

role of Attorney General in the context of leading the fight to ensure that civil rights

laws are vigorously enforced. We have come too far as a nation to ignore these

issues.

In closing, let me add one final comment in reply to those who suggest it is inappropriate to raise substantive issues, or to discuss philosophical views during the

judiciary committee’s scrutiny of this nominee.

John Ashcroft has devoted himself for the past quarter century to public service.

I assume his motivation to run for office was the same as mine ...he wanted to make

a difference.

I know he is proud of his record, and so, evidently, is the president-elect. Let us

not pretend the nomination of John Ashcroft to be the next Attorney General is for

any other reason than because he has strongly held views—one might even say he

has a clearly defined political ideology—that would govern his actions in that highly

sensitive office.

I believe it is disingenuous to suggest John’s record ought not be reviewed, discussed and debated. I’m pretty certain John is prepared for that discussion, and I

look forward to hearing his views.

Again, Mr. Chairman, thank you very much.

Chairman LEAHY. We will turn to my good friend from South

Carolina, Senator Thurmond.

STATEMENT OF HON. STROM THURMOND, A U.S. SENATOR

FROM THE STATE OF SOUTH CAROLINA

Senator THURMOND. Thank you.

Mr. Chairman, I am very pleased that President-elect Bush has

chosen John Ashcroft to serve as his Attorney General.

Senator Ashcroft is one of the most qualified people selected for

this position in many years. He served two terms as Attorney General of Missouri, rising to become the leader of the National Association of Attorneys General. He was then elected Governor of Missouri, also serving for two terms, and rising to chair the National

Governors’ Association. I would also note that he has a fine wife

and family.

Most recently, Senator Ashcroft has been an effective leader in

the Senate with a record of legislative accomplishments. For example, he was instrumental in passing a methamphetamine bill to

help keep drugs out of the hands of children. Also, he worked in

a bipartisan manner with Democrats to support COPS program

funding for law enforcement.

In the Senate, his job was to make the laws, but as Attorney

General, his job will be to enforce the laws. It is clear that he understands that people in different positions have different roles because he has expressed concerns about Federal judges who do not

understand the separation of powers. I am confident that as Attorney General he will enforce all the laws to the best of his ability,

whether he helped enact them or not.

I hope that these hearings will not be about whether the nominee agrees with each Senator on every issue. After all, he is the

President’s choice, and the President makes the ultimate policy decisions. The question should be whether he is qualified and will enforce the laws. The answer is clearly yes.

Twenty years ago, I recommended him to be Attorney General

for President Ronald Reagan and would like to place that letter

into the record.

Chairman LEAHY. Without objection.

15

Senator THURMOND. And I would like for that to appear at the

end of my statement.

Chairman LEAHY. Without objection.

Senator THURMOND. I recognized his abilities then and in the

passing years while he has served as Governor and Senator has always reinforced my belief he would have made a fine Attorney

General in 1981. He will make an outstanding Attorney General in

2001.

Thank you, Mr. Chairman.

[Senator Thurmond’s letter follows:]

HON. STROM THURMOND

WASHINGTON, D.C. 20510

November 17, 1980

Mr. Edwin Meese III

Office of the President-Elect

1726 M Street, NW

Washington, D.C. 20036

Dear Ed:

Among the more important appointments that President-Elect Reagan soon will

make is that of Attorney General of the United States. In this regard, I want to

bring to your attention The Honorable John Ashcroft, presently Attorney General

of the State of Missouri.

John Ashcroft was elected the 38th Attorney General of Missouri in 1976. He was

just reelected to another term in that office, demonstrating the trust that the people

of Missouri have in this very bright, very dedicated young man.

I first met John Ascroft in 1976. At that time, I was immediately impressed with

him. More recently, as I traveled around the country speaking on behalf of Governor

Reagan, I had the pleasure of seeing John again. In fact, he introduced me on one

such visit to Missouri to attend a Reagan-Bush rally.

I consider John Ashcroft to be one of our more promising young Republican leaders and believe that he represents the kind of young but experienced talent that

could be used well in the Reagan Administration in the post of Attorney General.

I am submitting a packet of informational materials on John. I hope that you will

review them carefully and that you will conclude, as I have, that John deserves to

be at the top of your list of nominees for the post of Attorney General.

If I can provide other, additional materials of assistance to you in this regard,

please let me know.

With kindest personal regards and best wishes,

Sincerely,

STROM THURMOND

Chairman LEAHY. Thank you, Senator Thurmond. We will put

into the record a statement by Senator Biden, who, as I said, is at

Senator Cranston’s funeral, and we will turn to the distinguished

Senator from Wisconsin, Senator Kohl.

STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM

THE STATE OF WISCONSIN

Senator KOHL. Thank you, Mr. Chairman.

Senator Ashcroft, welcome back to this Committee. Based upon

what I know of your record thus far, I could not vote for you to be

a Supreme Court Justice, but this is different. As I have said to

previous nominees for Attorney General, when considering Cabinet

nominations, I approach the process prepared to give deference to

the President’s choice. The President is entitled to surround himself with the people he trusts.

This deference, however, does not rise to the level of blind acceptance, and so, Senator Ashcroft, you have a responsibility to convince this panel and the American people that your views will not

16

interfere with the administration of justice. Laws are administered

and interpreted by people. You have strong convictions. You often

wear them on your sleeve, and you take great pride in your convictions. You certainly are not to be faulted for this.

But it is not credible to say that you or anyone can just administer the law like a robot as if the law is not subject to feelings or

strong convictions. It is up to you to explain to us why your convictions will not permeate or dominate or even overwhelm the Department of Justice.

Remember, the Attorney General must be a role model and not

a lightning rod for certain causes. You have been passionate about

many issues, civil rights, abortion, gun safety, and the environment, to cite just a few, but there must be no doubt in the minds

of Americans that you will fairly enforce the law. The Attorney

General must vigorously advocate for all Americans and, most particularly, protect those who cannot defend themselves.

Your many years as a politician make some people wonder

whether you are prepared to dispassionately administer the law.

Surely, you understand that many of the positions you have taken

are unpopular with some members of this Committee. You

shouldn’t be condemned for disagreeing with people, but, rather,

you must convince the American people that you will enforce the

laws of the land in a way that will make us proud and will make

us feel that it is justice that is certainly being done.

I have enjoyed working with you as a colleague, and I look forward to this hearing and your answers to our questions.

Thank you.

Chairman LEAHY. Thank you.

I turn to the distinguished senior Senator from Iowa, Senator

Grassley.

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR

FROM THE STATE OF IOWA

Senator GRASSLEY. Thank you, Mr. Chairman. I am pleased to

welcome Senator John Ashcroft back to the Committee today. I

know him from working with him to be a man of integrity and also

a person who loves America.

I have been privileged to serve with John here in the Senate and

on the Judiciary Committee for the past 6 years. During this time,

I have come to respect John’s legal abilities and his keen insight

into public policy.

John shares my concern about crime and has worked hard in the

war against drugs. He has helped to increase funding for local law

enforcement and pushed for tougher sentences for criminals. John

is also extremely concerned about the victims of crimes, having

signed into law Missouri’s Victims Bill of Rights when he was Governor of that State.

John also co-sponsored the Violence Against Women’s Act when

he was here in the Senate.

Now, John and I come from States where agricultural issues are

very important, and we have had a number of discussions about

how to address the myriad of problems that are facing family farmers today. He is concerned about ensuring competitive markets and

a level playing field for farmers and independent producers. Based

17

on my experience with Senator Ashcroft’s work here in the Senate,

I know that he is committed to doing what is right for the family

farmer.

John Ashcroft is a man of the law. He is eminently qualified to

serve as this Nation’s Attorney General. His background as Governor and Attorney General of Missouri are some of the strongest

qualifications that I have seen for this job. I believe that he will

vigorously enforce all of our Nation’s laws. I believe that Senator

Ashcroft will uphold the rule of law for all Americans which will

be a refreshing change from the way things were done in the

present administration where the Justice Department was more of

a defense counsel for the President than the Nation’s chief law enforcer. John Ashcroft’s integrity, then, will be a breath of fresh air.

I do want to make a comment about the mob of extremists who

have hit the air waves and are trying to intimidate Members of the

Senate into voting against Senator Ashcroft. I hope that my colleagues have the intestinal fortitude to stand up to these extremist

accusations. It is remarkable that accusations of bias and racism

have increased to a roaring crescendo now that John Ashcroft has

come up for confirmation because, if John Ashcroft is so bad, then

why did the people of Missouri elect him Missouri Attorney General, Governor, and Senator? Would the majority of Missouri citizens support such a biased and extreme man to serve and represent them for well over two decades? I don’t think so. Would the

National Association of Attorneys General and the National Governors’ Association, two national associations representing both Republican and Democratic Attorneys General and Governors, name

such a biased man to lead their organization? I don’t think so, but

the smear goes on.

I, for one, will make my decision based on facts, not innuendo

and rumor and spin. I will not let special interest groups with an

agenda far out of the mainstream hijack the Judiciary Committee.

John Ashcroft is a man of great character, integrity, and trust, all

values which are absolutely necessary for public service.

He is an excellent lawyer, committed to enforcing all the laws.

Above all, I know that John Ashcroft to be a man concerned about

the well-being of our country and committed to doing what is right

for all Americans. I believe John Ashcroft will be an excellent Attorney General, and at this point, I see absolutely no legitimate

reason why he should not be confirmed.

I yield.

Chairman LEAHY. I thank the Senator.

I should just note for the record, Senator Hatch had expressed

a wish that we would follow a procedure in which we would only

hear from the nominee, or the hearing would take at most 2 days.

Our Committee hearing has been a little bit more varied than that.

I would note that when a Democratic President nominated Griffin Bell in a Democratic-controlled Senate, we had a hearing for 7

days and we heard from 26 witnesses.

When President Reagan nominated Ed Meese and there was a

Republican-controlled Senate, the hearings were in two parts. The

first was 4 days with 31 witnesses. The second part was 3 days

with 17 witnesses.

18

With President Clinton, the hearing for his first nominee, Ms.

Baird, was for 2 days. There were going to be a number of outside

witnesses, but, of course, the nomination was withdrawn.

Having said that, as I have told the distinguished Senator, my

good friend from Utah, that if he has witnesses that he wants

heard, of course, they will be heard. There will be no unnecessary

delays.

I would turn now to the distinguished— Senator HATCH. If the Senator would yield for just one comment

on that?

Chairman LEAHY. Of course.

Senator HATCH. In the last four Attorneys General, we had one

day for Richard Thornburgh, we had 2 days for Attorney General

William Barr, we had 2 days for Janet Reno, and I might mention

she was the sole witness, Barr was his sole witness, other than the

introducers, and I think Dick Thornburgh was his sole witness.

I might add that I can remember when Janet Reno came up, and

I had every special interest group on the right wanting to oppose

her. I refused to allow that, and we took their statements and paid

attention to it, but I didn’t do what we are doing here today.

Now, you have the right to make this decision. All I am saying

is that I want to point out that the last three or four didn’t go more

than 2 days.

Chairman LEAHY. Well, I notice among our— Senator HATCH. And they were the sole witnesses.

Chairman LEAHY [continuing]. List of left-wing witnesses, Heritage Foundation and a few like that, I suspect— Senator HATCH. Well, for Meese, two conservatives, that is true,

way back when.

Chairman LEAHY. I suspect, Senator Hatch, that you are going

to have all the witnesses you want, but I would also note, as I said,

when the Democrats were in control of the Senate with a Democratic President, it did take us 7 days and 26 witnesses. These are

my seminal hearings, you see, Senator Hatch. It is the influence of

your party in taking 4 days, 31 witnesses.

Anyway, moving along—

Senator HATCH. Just one more point.

Chairman LEAHY [continuing]. Can we hear from the distinguished Senator— Senator HATCH. Mr. Chairman, just one more point of privilege.

Chairman LEAHY. I am trying to speed this thing up.

Senator HATCH. Well, we know that J.C. Watts asked to testify,

and he is not on the Members one, and we would like to have Hon.

Kenneth Hulshof testify on the same panel as Hon. Ronnie White

because he can—

Chairman LEAHY. He is on the Members panel.

Senator HATCH. He was the prosecutor and one of the cases—

Chairman LEAHY. He is on a Members panel.

Senator HATCH [continuing]. And we would like him to be on

that panel because then it would be fair because then he can explain what happened.

Chairman LEAHY. Well, Orrin, let’s go on with the— Senator HATCH. Well, I hope you will give consideration to that

because it would be highly unfair if you don’t.

19

Chairman LEAHY. Well, the difficult thing is, as you know, we

sent you over our list of witnesses and then we waited and waited

and waited for days to hear back from you.

Senator HATCH. I always waited for yours as well.

Chairman LEAHY. The distinguished and highly competent senior

Senator from California.

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR

FROM THE STATE OF CALIFORNIA

Senator FEINSTEIN. Thank you very much, Mr. Chairman.

Mr. Chairman, I believe that the people of this Nation deserve

an Attorney General who will be honest, strong, and fair, whose integrity is beyond question and who will vigorously protect the

rights of every American under law.

In my meeting with Senator Ashcroft, I assured him that I would

keep an open mind and do everything I possibly could to see to it

that he got a full and fair hearing, and I believe he is going to get

just that. So I have not yet taken a position on whether I would

or would not support his nomination to be Attorney General of the

United States.

But Mr. Ashcroft’s past positions on civil rights, on human

rights, on segregation, on affirmative action, on a woman’s right to

choose, on gun laws are very different from my own.

All of the above areas are today covered by law. For civil rights,

we have the Civil Rights Act and Title VII. For a woman’s right

to choose, the United States Supreme Court has adjudicated Roe v.

Wade. For gun control, the ban on assault weapons which I had

something to do with, the National Firearms Act and the Brady bill

are all laws of our land.

We all know Senator Ashcroft as an independent thinker, as a

strong advocate for his beliefs. Many of us on this Committee have

worked with him on various pieces of legislation, I, for one, on

methamphetamine, and he has been gracious, true to his word, and

a very good person with whom to work.

For the past 6 years as Senator and before that as Governor,

John Ashcroft served as a representative of the people of Missouri.

This advocacy was both appropriate and strong-minded, but the Attorney General of the United States must be prepared to use the

full force and authority of that position to vigorously enforce all

laws, regardless of personal belief.

It is not enough, for example, for an Attorney General to say he

will enforce the laws and then appoint a Solicitor General whose

goal will be to undercut them, and all of this raises in my mind

serious questions.

Can we expect, for example, an unabashed and vocal opponent

of reproductive rights for women to vigorously enforce laws that

protect a woman’s right to choose? Will Senator Ashcroft continue

to vigorously enforce the Freedom of Access to Clinic Entrances Act

and retain the National Task Force on Violence Against Health

Care Providers? Would justice under his leadership provide a vigorous defense of Roe v. Wade? Will he fully enforce and support the

ban on assault weapons and large-capacity ammunition clips and

the Brady law? Would he be steadfast in opposition to allowing violent felons to obtain guns simply by applying for this right to be

20

restored? Would he unwaveringly and vigorously use the Office of

Attorney General to protect Americans from violent hate crimes

and other civil rights violations? Would he ensure that no citizen’s

right to vote is compromised by an illegal act? These are questions

that don’t relate to character or integrity, but they are also questions that must be answered.

Today, we begin the process of ensuring that our system of laws

will be enforced with moral authority and fair effectiveness. So I

look forward to asking some tough questions, hopefully receiving

some good answers, and giving Senator Ashcroft the full and fair

hearing.

Thank you very much, Mr. Chairman.

Chairman LEAHY. Thank you.

I turn now to the distinguished senior Senator from Pennsylvania, Senator Specter.

STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM

THE STATE OF PENNSYLVANIA

Senator SPECTER. Thank you, Mr. Chairman.

From the opening statements, it is perfectly apparent that the

battle lines are pretty well drawn. It is pretty hard to even agree

on a schedule. Fortunately, the conference room, hearing room

table is set in advance, so there is no dispute about that, and for

a Senate which has talked so much about bipartisanship, we have

not gotten off to a very good start on the first issue which we are

confronting.

It would be disingenuous for any of us to say that we don’t have

views about former Senator John Ashcroft. Having worked with

him for 6 years, including extensive work on this Committee, I had

thought that I knew John Ashcroft pretty well until I started to

read about him in the papers and listen to the electronic media seriously.

We know about his strong ideological views, and the critical factor, obviously, is whether John Ashcroft has the ability and the

willingness and the temperament to separate his own personal

views from law enforcement, and there is a big difference.

On a lesser scale, I served as a prosecuting attorney, D.A. of

Philadelphia. So I know what it is like to enforce laws that I don’t

particularly agree with, and I think it is fair and this Committee

has a constitutional responsibility to find out from John Ashcroft

that he will give assurances to the American people on critical

issues.

Now, the matter has already been raised about the right to

choose and access to abortion clinics, and I think it is significant

that Senator Ashcroft voted on a bankruptcy issue counter to those

who would try to stop abortions. The issue was whether somebody

who had a judgment in a civil case would be discharged in bankruptcy, which is the general rule, without getting too deeply involved. John Ashcroft voted that they should not be discharged in

bankruptcy if the judgment came from blocking an abortion clinic.

There are legitimate concerns about the First Amendment as to

Attorney General John Ashcroft’s views if he is confirmed enforcing

the separation of church and State.

21

There is no doubt about the latitude for a President’s Cabinet for,

in effect, the President’s lawyer, although the Attorney General is

the lawyer of the American people as well, and there is also no

doubt about the enormous difference between a Federal judgeship,

say a Supreme Court judgeship where ideology would play a very

different role than would the Nation’s chief law enforcement officer.

We are under a microscope, as we all know, ladies and gentlemen, and I hope that we can put partisanship aside. There is no

doubt that if it becomes a partisan issue that this nomination can

be blocked by a refusal to cutoff debate, and feelings are running

very, very high, lots of calls on both sides, great intensity. I have

not seen this much intensity for more than a decade, not that we

haven’t had it in this room, but not for more than a decade, and

if the passions run high enough and partisanship takes over, it will

not be in the interest of the American people.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you, Senator.

The distinguished Senator from Wisconsin, Senator Feingold.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR

FROM THE STATE OF WISCONSIN

Senator FEINGOLD. Thank you, Mr. Chairman.

Let me begin by touching on two general principles to guide our

consideration of Cabinet nominations.

The first principle is that the Constitution imposes the duty on

the President to faithfully execute the laws, and he is expected to

propose new laws. To carry out these duties, the President needs

advisors and policymakers in the Cabinet to advance the President’s program. Over the history of such nominations, the Senate,

with rare exceptions, has given the President broad leeway in

choosing subordinates.

The second principle that I think should govern nominations is

what we might call the political golden rule. We, as Democrats,

should, if at all possible, do unto the Republicans as we would have

the Republicans do unto us. A Democratic President ought to be

able to appoint to the Cabinet principled people of strong, progressive, or even liberal ideology, and, therefore, a Republican President ought to be able to appoint people of strong conservative ideology.

Now, whether doing so is good politics or, more importantly, is

wise in light of a promise to unify the Nation after a very close

election is a very important issue for a sustained national debate,

but that is not at the core of our responsibility in this body to advise and consent on Cabinet nominations.

As to the case of former Senator John Ashcroft for Attorney General, I think John Ashcroft is highly qualified from the points of

view of competence and experience. During the past 6 years, I have

had the opportunity to get to know John Ashcroft as a colleague.

I have had little contact with him outside the Senate floor or the

Committee rooms.

In one of those very few encounters, I and Senator Paul

Wellstone were walking outside the Capitol, and John Ashcroft offered us a short ride to our homes. Let me tell you on the record,

it should give at least some comfort that he was not nominated for

22

Secretary of Transportation. It was a kind gesture, but a wild,

somewhat hair-raising, ride.

Advice and consent, however, is not about who is a nice guy or

collegiality, and in all seriousness, this is a very painful nomination for many Americans in light of John Ashcroft’s views and votes

on many issues, ranging from the right to choose, to gay and lesbian rights, to affirmative action, the environment, to others. And

I am also alarmed by some of these views.

Yet, my own direct experience with John Ashcroft has been positive in the sense that he has been much more open to my strong

feelings on issues such as the outrageous practice of racial profiling

than almost all of his Republican colleagues on this Committee and

in the Senate as a whole. He and his staff not only permitted, but

assisted in a significant and powerful hearing on racial profiling in

the Constitution Subcommittee which John Ashcroft and I led at

the time.

Nonetheless, although that experience is certainly relevant to my

consideration, I want the individuals in groups that have raised

concerns about the nominations to know this. I understand and

agree that that experience should be one, and only one, of many

other more important factors to be considered in judging the fitness

of this nominee as Attorney General.

In fact, as I consider the merits of this nomination, I can’t help

but take this moment to express my concern about the attitude and

approach that the former and then future Republican majority in

the Senate has taken since 1996 in considering executive appointments and judicial appointments.

The previous majority—and, yes, sometimes led by John

Ashcroft—seemed never to accept the legitimacy of President Clinton’s 1996 victory. Instead, in my view, they unfairly blocked many

legitimate qualified appointees such as Bill Lann Lee, Ronnie

White, and James Hormel. I think this is wrong, and even Chief

Justice Rehnquist blamed the understaffing of the Federal judiciary on this questionable approach. This is the very partisanship

with which the American people have grown so frustrated and dismayed.

So it is not easy for me to tell those who have fought so hard

for Clinton and then for Gore that we should follow the golden rule,

do the right thing, and not use a similar approach during the next

4 years. That is my inclination, but I openly wonder at what point

do we have to draw the line, given the previous majority’s refusal

to accord the Democrats the very deference that they, the Republicans, now seek.

Let me also commend the individuals and groups, with whom I

agree on virtually all of the key issues, for promoting a significant

national discussion on this nomination. Despite criticism, you are

right to intensely scrutinize this nomination. Regardless of the outcome, this process will reap long-term benefits as these legitimate

and heartfelt concerns are heard by all Senators and the American

people.

But, in the end, Mr. Chairman, let me also repeat my conviction

as this hearing begins that voting records and conservative ideology are not a sufficient basis to reject a Cabinet nominee, even for

Attorney General. I say this as a progressive Democrat from WisVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00036 Fmt 6633 Sfmt 6602 C:\HEARINGS\76342A.001 SJUD4 PsN: SJUD4
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consin who hopes that the William O. Douglasses and Ramsey

Clarks of the future will be appointed to executive positions and

Cabinets and not be rejected on that basis along. In other words,

Mr. Chairman, being in the middle of the road is not a requirement

for a Cabinet position.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you.

I will turn to the distinguished Senator from Arizona, Senator

Kyl.

STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE

STATE OF ARIZONA

Senator KYL. Thank you, Mr. Chairman.

I think it is appropriate, first, that we welcome our colleague

back to this Committee, and I do that with great fondness, and also

his wife, Janet, who is here.

Second, that we focus a little bit on the standard for judging

nominees of the President to Cabinet positions, and both Senators

Feinstein and Feingold have, I think, spoken eloquently to that

point here and I would like to in a moment as well.

The last Cabinet Secretary we had a chance to vote on was the

Treasury Secretary, Larry Summers, and I remember at the time,

he had spoken out very strongly against tax cuts, and I am very

much for tax cuts.

I thought some of the things he said were relatively outrageous

in that regard, but I voted to confirm him as did, I think, every

one of my colleagues because of the standard which I think has historically been applied.

I would like to quote an eloquent statement of that standard by

a member of this Committee in connection with another nominee

a few years ago. Our colleague at that time said, ‘‘The Senate has

a responsibility to advise and consent on Department of Justice

and other executive branch nominees, and we must always take

our advice and consent responsibilities seriously because they are

among the most sacred, but I think most Senators will agree that

the standard we apply in the case of executive branch appointments is not as stringent as that for judicial nominees. The President should get to pick his own team. Unless the nominee isn’t

competent or some other major ethical or investigative problem

arises in the course of our carrying out our duties, then the President gets the benefit of the doubt. There is no doubt about this

nominee’s qualifications or integrity. This is not a lifetime appointment to the judicial branch of Government. President Clinton

should be given latitude in naming executive branch appointees,

people to whom he will turn for advice,’’ and our colleague went on

to say with respect to this particular nominee, ‘‘Yes, he has advised

and spoken out about high-profile constitutional issues of the day.

I would hope that an accomplished legal scholar would not shrink

away from public positions on controversial issues as it appears his

opponents would prefer. One can question Professor Dellinger’s positions and beliefs, but not his competence and legal abilities.’’ The

eloquence, of course, is easily recognized as that of the Chairman,

Senator Leahy of Vermont, speaking on behalf of Walter Dellinger

24

who was confirmed for Assistant Attorney General for the Office of

Legal Counsel in which he acquitted himself admirably.

I think that is the standard, and when applying it to John

Ashcroft, there can be no doubt that he should be confirmed.

Others have spoken of his qualifications. Perhaps it would be of

interest to note that he is the first Attorney General nominee in

the history of the United States that has served as State Attorney

General, Governor, and U.S. Senator. Only 6 of the 67 former U.S.

Attorneys General had even some of Senator Ashcroft’s experience.

He led the National Association of Attorneys General. He was

Chairman of the National Governors’ Association, as well as Chairman of the Education Commission of the States, and as all of my

colleagues know, he served on this Committee and chaired the Subcommittee on the Constitution.

He has the intelligence, a degree from Yale and a prestigious law

degree from the University of Chicago, and, of course, I think no

one has questioned his integrity.

Now, there have been questions raised. I think if my colleagues

have an open mind, as both Senator Feinstein and Senator Feingold noted, Senator Ashcroft can answer many of these questions.

I would just note, for example, that with respect to the charge that

he opposes virtually any gun control, you can be assured that that

is simply incorrect, and he will make that clear.

I think at the end of the day, one thing is very clear. There have

been two interesting assertions made with respect to Senator

Ashcroft by opponents. The first is that he has very strong convictions, faith, and belief in God. Indeed, he does.

The second is that he may not enforce the law and the Constitution. Well, the second assertion is at odds with the first. You can

be assured that when John Ashcroft places his hand on the Bible

and swears to uphold the laws and the Constitution that he will

do that on behalf of the people of the United States of America.

Chairman LEAHY. I would note, as my friend from Arizona has

quoted me, just so people understand the setting for that vote on

Walter Dellinger, this was a matter that had been delayed by secret holds on the Republican side for months, and I was arguing

we should vote him up or vote him down. He was not the Attorney

General. He would take orders from the Attorney General, something that makes a big difference, but what I wanted was a vote

up or down, and when the secret holds were released, he was confirmed.

I would turn to the distinguished senior Senator from New York.

STATEMENT OF HON. CHARLES E. SHUMER, A U.S. SENATOR

FROM THE STATE OF NEW YORK

Senator SCHUMER. Thank you, Mr. Chairman, and welcome, Senator Ashcroft.

I know we have our differences, but I want to thank you for

being open and honest with us in this process and making yourself

available to all of our questions. In return, let me be straight with

you. As you know, I have misgivings about your nomination to be

Attorney General. I haven’t come to this conclusion easily. Unquestionably, you deserve a full and fair hearing and a real chance to

tell your side of the story.

25

Moreover, I believe we owe a significant level of deference to the

President in his choices for Cabinet. The President does not have

carte blanche, but usually the presumption at least begins in favor

of his nominees. I will support the vast majority of the President’s—the President-elect’s nominees even though I don’t agree

with them on many issues.

I know that a number of my Democratic colleagues initially

voiced some support for your nomination because of this presumption, but I think now that the record has been more closely reviewed, the burden of proof has shifted back to you.

When we met privately last week, I asked Senator Ashcroft what

role ideology should play in our confirmation process. I meant that

question sincerely. It is a difficult issue that many of us are wrestling with.

A few years ago, Senator Ashcroft opposed the nomination of Bill

Lan Lee to be the Assistant Attorney General for the Civil Rights

Division at DOJ. At the time, this is what he said about Lee, ‘‘He

has obviously the incredibly strong capacities to be an advocate,

but I think his pursuit of specific objectives that are important to

him limit his capacity to have a balanced view of making judgments that will be necessary for the person who runs that division.’’ Looking back now, I think Senator Ashcroft was correct, at

least when it comes to evaluating nominees who have an ideological bent that is significantly outside the mainstream.

In other words, the issue should be whether a nominee’s fervent

beliefs and views are so one-sided that we lose faith, that the

American people lose faith in that person’s ability to carefully

evaluate, abide by, and control the law, the law as it is, not as he

might like it to be.

This is even more the case for an Attorney General nominee because the position requires the utmost in balanced judgment, clarity of thought, sound use of discretion, and cautious decisionmaking.

The question I hope these hearings will help us to answer is

whether John Ashcroft’s passionate advocacy of his deeply held beliefs over the past 25 years will limit his capacity to have the balanced world view necessary for an Attorney General. This is a man

who has dedicated his career to eliminating a woman’s right to

choose. He believes that abortion is murder, that it is wrong, and

that it must be stopped. He has led the charge to enact new hurdles and restrictions against choice.

Senator, you have told me you will enforce the law, but your saying so isn’t enough. When your Solicitor General gets the chance

to tell the Supreme Court to follow Roe v. Wade, will you demur?

When the HHS Secretary calls you for an analysis of new regulations restricting the right to choose, will your analysis be based

solely on the current state of law? When you allocate the billions

of dollars that DOJ receives, how much will go to protecting the

clinics where you think murder is being committed?

Senator Ashcroft, as much as I respect you as a person and your

faith, your past causes me grave concern on these issues, and like

Bill Lann Lee, when you became the Attorney General of Missouri,

you did not advocate, you did not relinquish your role as a passionate advocate. You sued nurses who dispensed contraception and

26

continued litigating against them for years, despite being told by

every court you came before that you were wrong. You sued the

National Organization of Women under the antitrust laws to muzzle their attempt to pass the Equal Rights Amendment. Will you

now use as United States Attorney General that office to continue

crusading against those you passionately and fervently disagree

with?

Senator Ashcroft, the issue boils down to this. When you have

been such a zealous and impassioned advocate for so long, how do

you just turn it off? This may be an impossible task.

I would say to my friend from Wisconsin, this goes beyond ideology. It goes directly to and is unique to the Cabinet position of Attorney General, the chief law enforcement officer of the land.

Senator Ashcroft has been a leading advocate against gun control. He has fought to kill legislation that would have made it easier to catch illegal gunrunners. He has vociferously opposed even

child safety locks and the assault weapons ban. When the U.S. Attorney from New York or Wisconsin calls him and pleads for more

resources to prosecute gunrunners, will this be a priority?

For many years in Missouri, Senator Ashcroft was a leading advocate against desegregation. He has been on the forefront of arguing against gay rights and for lowering barriers between church

and State.

In short, John Ashcroft has for decades now been knee-deep in

many of the most significant, yet divisive issues in our country.

What this hearing must get at is whether he can now step outside

this ideological fray, set his advocacy to one side, and become the

balanced decisionmaker with an unclouded vision of the law that

this country deserves as its Attorney General.

Thank you, Mr. Chairman.

Chairman LEAHY. The distinguished Senator from Ohio, Senator

DeWine.

STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM

THE STATE OF OHIO

Senator DEWINE. Mr. Chairman, thank you very much.

We are now at a place in our Nation’s history where sometimes

it seems as if there is a direct relationship between the qualifications, the experience, the length of service of a particular nominee,

and how contentious and how difficult the nomination process is.

Today, we have a nominee who has extensive experience, who is

extremely well qualified, Assistant Attorney General of Missouri, 8

years as Attorney General, 8 years as Governor, 6 years as U.S.

Senator, a member of this Judiciary Committee. Therefore, I guess

it should come as no surprise that he has taken positions, that he

has taken positions on many, many issues. He has cast thousands

of votes, and he has a long track record.

Nor, frankly, should it come as a surprise that a record of a quarter of a century would generate criticism. I think we would worry

if he hadn’t taken tough positions. I think we would worry if after

a quarter of a century, there wasn’t something controversial about

what he had said or what he had done.

27

I intend during this hearing to listen. My personal experience

with John Ashcroft over the last 6 years convinces me that he is

a man of integrity, he is a man of honor, he is a man of courage.

The position of Attorney General is unique, as my colleagues

have already pointed out, among members of the United States

Cabinet. His is in many respects the most difficult job because he

is the person who must by statute give advice to the President of

the United States, but he is also, in essence, the chief law enforcement officer of the country.

Ultimately, the tenure of John Ashcroft as Attorney General or

the tenure of any Attorney General will be judged not on any one

particular decision that he will make, not on any one particular

policy that he will take. Ultimately, this Attorney General and any

Attorney General will be judged on how he is perceived, how he is

perceived by the public on much more essential issues and much

more essential questions. The question of whether or not he was

a man of integrity, whether or not he was a man of honesty, whether or not he had the courage to tell the President yes when it was

right to tell him yes and also to tell him no if that was what he

needed to tell him.

I am going to listen, but I am convinced, based upon what I have

heard so far and what I know about John Ashcroft, that after he

has been Attorney General, the people will look up and say, ‘‘Yes,

this was a man of integrity. We did not always agree with him. We

may have disagreed with him on some issues. Maybe he wasn’t always right, but he gained the respect of the American people and

he brought honor and integrity to the office.’’

Chairman LEAHY. Thank you, Senator.

Just to let people know where we are, we have four more Senators to speak, and we have been trying to stay within the 3 to 4

minutes each. What I will do at the end of these four, we will take,

as I have told Senator Ashcroft and Senator Bond and Senator

Hutchison and others, a short break just so we can recoup and then

come back and have the introductions and the opening statements.

The distinguished Senator from Illinois, Senator Durbin.

STATE OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM

THE STATE OF ILLINOIS

Senator DURBIN. Thank you, Mr. Chairman.

It is good to be back on the Committee, and it is interesting that

this would be the kickoff for my return to the Committee, a hearing

of this consequence.

Chairman LEAHY. We like you senior Senators over here.

Senator DURBIN. Yes. Well, thank you.

I agree wholeheartedly with the statement made by Senator

Hatch relative to the nature of this hearing and this investigation.

John Ashcroft, this should have nothing to do with your personal

life or family life. As some have said, the politics of personal destruction should come to an end, and I don’t believe this hearing

will engage in any questions relative to that, nor should it, for good

reason. You have a fine family that you are very proud of, and we

have plenty to concern ourselves with relative to the issues before

us.

28

Some have suggested, though, that we are off to a rocky start

here in this evenly divided Senate by having such a contentious

hearing. Well, this hearing was not the idea of any Democrat. It

happened to be the idea of the Founding Fathers in Article II, section 2, when they said it would be the responsibility of the Senate

to give advice and consent to the President of the United States in

his nominations. I don’t think that that was a casual reference or

surplus verbiage. I think, in fact, they decided very carefully that

they would restrain the power of the President and make certain

that the chosen leader of our Nation would be subject to review in

these decisions by another branch of Government.

Senator Ashcroft, on the day of December 22nd, when Presidentelect George Bush nominated you to be Attorney General, you

made a statement, a brief statement, which many of us have seen,

and said at one point, and I quote, ‘‘President-elect Bush, you have

my word that I will administer the Department of Justice with integrity. I will advise your administration with integrity, and I will

enforce the laws of the United States of America with integrity.’’ ‘‘Integrity,’’ by a common definition, is an unwavering commitment to a set of values. There is no quarrel that your public life

shows a commitment to a set of values. There is no doubt that your

service as Attorney General will be guided by a set of values. The

question before this Committee is what will those values be. Will

they be the values embodied in the laws of the land, many of which

you have publicly opposed, a woman’s right to choose, sensible gun

control, civil rights laws, human rights protections? Will they be

the values of President-elect Bush and Vice President-elect Cheney,

many of which differ from your own public record? Will they be

your values, the values in your heart which have guided you

throughout your public life?

The role of the Attorney General is described in the definition of

the Department of Justice, first, to enforce the law, and that is fairly obvious, and in conclusion, it says to ensure ‘‘the fair and impartial administration of justice for all Americans.’’ Can you guarantee

fair and impartial administration of justice if you believe some

Americans are undeserving or engaged in conduct which you find

morally objectionable?

As sound as America’s principles may be, we must concede we

are not a perfect people. We have struggled throughout our history

with issues of equality for women, African Americans, Hispanics,

new Americans, the disabled, people of diverse religious belief, people with different sexual orientation.

This last election has left America divided, and I know that the

new President has suggested that he wants to unite this great Nation, and I sincerely hope that he can. He knows that his biggest

challenge will be to reach out and win the confidence of many who

opposed him, families and women and minorities and new Americans and those concerned that his views are outside the mainstream of American values, and no office has a more direct impact

on the lives and fortunes of these groups, and all Americans for

that matter, than the Office of Attorney General.

If minority voters feel disenfranchised by backward election technology and politically biased oversight, it is the Attorney General

who must protect their rights.

29

If women feel their reproductive choices, including the right to

choose the best family planning for them, is threatened by violent

demonstrators, it is the Attorney General who must protect them.

If those with different sexual orientation feel the pain of discrimination and threat of bodily harm, it is Attorney General and

the Department of Justice who must protect them.

Senator Ashcroft, several weeks ago, you and I were on an airplane together, you with your wife and I went alone to the funeral

of former Missouri Governor Mel Carnahan. It was a wonderful

gesture on your part to be there, considering the fact that you were

in the midst of a campaign. It was a funeral service that I will long

remember.

At the end of that service as I was leaving, someone pointed to

me and said, ‘‘Senator Durbin, this group over here is the Missouri

Supreme Court,’’ and I said, ‘‘Is Justice Ronnie White among

them?’’ They said, ‘‘Yes. He is the gentleman standing over here.’’

I went over and met him for the first time and introduced myself.

I said, ‘‘I am Senator Dick Durbin of Illinois, and you are Justice

Ronnie White, are you not?’’ He said, ‘‘Yes.’’

Senator Ashcroft, I said to him, ‘‘I want to apologize to you for

what happened on the floor of the U.S. Senate. That never should

have happened.’’ He faced an embarrassment and a humiliation on

the floor of the Senate which did not have to happen.

If there was a heartfelt belief by the Senators from Missouri that

he should not have been a Federal district court judge, it should

never have reached that point in time, and it rarely ever does in

the history of the U.S. Senate.

I have said to you personally, and I will say to you at this hearing, I am going to be asking you a number of questions about that

decision and about the process and the way this man was treated.

I think that is going to tell me a great deal about your conduct if

you become Attorney General.

During the course of this hearing, Senator Ashcroft will be given

a chance to explain his vision of the office, to reconcile clear conflicts between his public record and the new responsibilities he

seeks, and to give us and America a chance to look into his heart.

This open, fair hearing is an opportunity which was often denied

to many who sought the approval of this Committee, but it is an

opportunity which you will have.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you, Senator, and we will put Senator

Cantwell’s statement also in the record. As I said, she is at our

former colleague Senator Cranston’s funeral.

[The prepared statement of Senator Cantwell follows:]

STATEMENT OF HON. MARIA CANTWELL, A U.S. SENATOR FROM THE STATE OF

WASHINGTON

Senator Ashcroft, I join with my colleagues in welcoming you to the Judiciary

Committee, a committee on which you have served and which I am just joining. I

am honored that my first appearance on this committee involves the consideration

of an extremely important nomination, that of the Attorney General of the United

States.

I share my colleagues’ belief that the president has historically been deferred to

in his choice of nominees for the Cabinet. Nonetheless, the Constitution entrusts the

Senate with providing advice and consent on those nominees and we must take that

duty extremely seriously. As members of the Judiciary Committee and the United

30

States Senate, we must ensure that our deference is tempered by consideration of

the qualifications of the nominee and his or her willingness to abide by and uphold

the laws of the land.

On the first point, Senator Ashcroft, it appears that your background would indicate that you have the credentials for this position. You have devoted many years

to public service, including serving as Attorney General of the State of Missouri, as

well as Governor and Senator from that state. I am sure that I speak for all of us

on the Judiciary Committee when I say that there are no doubts that you have extensive and appropriate experience to fill the position of Attorney General of the

United States of America.

My questions will focus on the second point: whether you will faithfully and zealously enforce the laws of our land in the areas of women’s reproductive rights, including the prevention and prosecution of clinic violence. I will have questions on

your record on enforcing and upholding the civil rights of all Americans. And, as

a new Senator from the Pacific Northwest, I hope to determine your intentions on

enforcing and upholding laws that protect our clean air and water, our natural resources, and the environment—all issues that are critically important to my constituents and all Americans.

Along with my colleagues, I believe that each American citizen should feel assured

that our Justice Department will defend his or her constitutionally protected rights.

During the hearing, I will be interested in learning whether and to what extent you

would enforce our laws and protect those rights despite your strong opposition to

some of the laws you would be in charge of enforcing.

I look forward to my first hearing as a member of the Judiciary Committee and

listening to your answers to our questions.

Thank you.

Chairman LEAHY. I would recognize the distinguished Senator

from Alabama, Senator Sessions.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM

THE STATE OF ALABAMA

Senator SESSIONS. I thank the Chairman.

John, welcome to the pit. Those were the words of Alan Simpson,

I believe, when Justice Scalia appeared here, and it is not a pleasant place to be. There are effective organized groups. One of the

members said there is a seasoned coalition, there is a seasoned

group that knows how to tarnish individuals who come before a

Committee when they want to. And as Senator DeWine noted, you

indeed have a long and distinguished career that includes a lot of

litigation and a lot of positions that you have taken that you believed was right, and there is somebody that can complain about

a lot of that. And I hope the burden of proof has not shifted. That

wouldn’t be appropriate. But it would be consistent with what Senator Simpson said in this Committee once, that people are more

like—we are more like prosecutor and accused than a confirmation

hearing.

Well, I love the Department of Justice. I spent 15 years in the

Department as an Assistant United States Attorney, 12 years as

United States Attorney, served five different Attorneys General. I

believe in that Department. It is a great Department. It is the Department of Justice. And, frankly, we may have had an Attorney

General who was right on some of our colleagues’ ideological issues,

but I don’t think the Department has run well. I think there are

some problems there. I think it needs new, vigorous, positive leadership, and as people have described your background, I think you

are perfect for that. And I am honored to support you. I don’t expect anything to come out that would change my mind. Certainly

the things that have come out that I have seen and studied are inVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00044 Fmt 6633 Sfmt 6602 C:\HEARINGS\76342A.001 SJUD4 PsN: SJUD4
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significant differences of opinion that we might have that should

not change our view about your qualifications.

The Attorney General is a law enforcer. There is a big difference

between a politician and a Senator where we vote on policy and

executing policy. To me, I haven’t had much difficulty making the

switch from prosecutor, professional career, Attorney General in

Alabama, to the—actually, I may have had more problem than you

are going to have going back.

[Laughter.]

Senator SESSIONS. But there is a difference, and it is pretty clear

in our minds. And I think as an 8-year Attorney General you will

not have any problem going back and enforcing the law as written.

I would say this: I was surprised, Senator Specter, that John

supported Chuck Schumer’s bankruptcy bill. I tried my best to stop

that amendment, and didn’t know you had voted the other way on

that. But it was— Chairman LEAHY. You are going to have plenty of time to let him

know what you think about that.

Senator SESSIONS. But I don’t think the Attorney General is particularly unique in setting policy. HHS people, they set policy about

all kinds of contraceptives, very sensitive issues and health issues.

There are sensitive issues in labor that the Labor Secretary gets

to set. I am not sure the Attorney General gets to set many issues

at all, basically just has to carry out the laws that are set.

I do think bipartisanship is important. I support President

Bush’s commitment to bipartisanship. I am going to try to do better

this time. I supported Trent Lott in trying to reach an agreement

that we wouldn’t be fighting here in the beginning of this session,

even though some felt maybe it had gone too far.

We need to work together, and I think this hearing is a bit of

a test. The independent groups, hard left that they are, have ever

right to speak and advocate and raise questions. But I think this

body needs to evaluate it and give John Ashcroft a fair hearing in

terms of what was known to him, what were the circumstances

when he made these decisions, and not take them out of context

and give it a spin that is unfair to him.

All of us have done things that have been taken out of context

and twisted about. It could be an honest statement but be a misrepresentation of what is happening.

John has not been an obstructionist here. I have looked at the

numbers. He has voted for 95 percent of President Clinton’s judicial nominees. He voted for 26 of 17 African American. The only

one that was raised, Ronnie White, is the only one he has opposed.

And he had a personal and good reason for that, in my view.

He is going to be a champion of prosecution of gun laws. Under

this administration, prosecutions have dropped. I have talked to

John about it, and he has committed to me that he is going to work

to increase the number of people that are prosecuted for violation

of gun laws in America, and in my view, that can be done dramatically with no new resources, frankly.

And on Bill Lann Lee, this Committee split on that vote, and

Chairman Hatch—if you would like to read a brilliant address on

it, read his speech on the floor about why he opposed Bill Lann

Lee. That was not a racial thing. It was a serious discussion about

32

his views about whether or not he would actually follow the

Adarand Supreme Court decision. The Adarand case he said he

would support, but the way he defined it in our view was not an

accurate definition of it. So then he would not be enforcing

Adarand if he didn’t properly understand Adarand. So that was

the basis of our opposition there.

So I would just say this: I believe that John Ashcroft has all the

gifts and graces to make a great Attorney General. I believe he will

be a great Attorney General. I believe he will serve this country

with distinction. I believe this Department will flourish under his

leadership. I know he will be responsive to us if we have problems.

I know and he knows who the captain of the ship is, and that is

the President, at whose pleasure he serves.

I believe in John. I think all of us do. I ask each member of this

Committee, listen to the complaints but think about the context,

the values he held. Ask yourself if he abused his office or did wrong

on any significant matter. I don’t think you will find that to have

occurred, and I would like to see a very strong vote for John

Ashcroft for Attorney General.

Thank you.

Chairman LEAHY. I thank the Senator from Alabama and will

yield now to my neighbor from New Hampshire, Senator Smith.

STATEMENT OF HON. BOB SMITH, A U.S. SENATOR FROM THE

STATE OF NEW HAMPSHIRE

Senator SMITH. Thank you very much, Mr. Chairman and, Senator Ashcroft and Janet, welcome, I think.

Thomas Paine once said, ‘‘These are the times that try men’s

souls,’’ and then he spoke of the sunshine patriots. And you are not

a sunshine patriot. You are willing to stand here and take it. You

don’t deserve some of the things that have been said about you and

will be said about you. And I know it is tough, but there are a lot

of us, I think, frankly, on both sides of the debate that appreciate

the fact that you are willing to do just that.

It is not pleasant for me as a personal friend of yours—and I will

admit that publicly—to hear terms such as ‘‘racism’’ applied to you,

my friend. That is unworthy, those who make the charges, and it

is certainly not in the best interest of the political debate in this

country.

Senator Kohl, I believe, a few moments ago said that the Attorney General of the United States should be a role model. If I could

pick a role model for my two sons, I would pick John Ashcroft, and

I wouldn’t hesitate one moment to do just that. Throughout his career, his entire career I politics, in his own words, he has sought

to bring America to its highest and best. He loves his country. He

loves Missouri. He loves his family. He loves the law. And he loves

the Constitution, and, yes, he loves his God. That is not a disqualifier. That is a qualifier. That is not a divider. That is a uniter.

There is a lot of cynicism in this town, and people think there

is too much politics in politics. We have heard some of it in the

public debate leading up to this hearing. We will hear some of it.

We have already heard some of it in the hearing. But John

Ashcroft is a guy who is always looking to do what is right.

33

I am reminded—and I think Senator Durbin alluded to it—of

John Ashcroft coming in to the Republican conference after the

sudden and tragic death of Governor Mel Carnahan, his opponent,

emotionally talking about that in the confines of that room with

only his colleagues there, announcing to all of us that he would

suspend his campaign immediately, for at least the next 10 days.

While that happened, the other side geared up to defeat him. But

John did the right thing. That is the kind of man he is. That is

the kind of man he is, so when you hear the criticisms, be reminded of the kind of person that he really is.

I have never known him to look at a poll or a focus group to

make a decision. He looks to the law. He looks to the Constitution.

He looks to the Founding Fathers. America does not need an Attorney General who is concerned about public opinion. Americans

want an Attorney General who is concerned about the law and the

Constitution, an Attorney General who will not only enforce it but

be an aggressive and vociferous advocate for it and the Constitution.

President-elect Bush could have picked another person for Attorney General, but he couldn’t have picked a better person for Attorney General. There will be witnesses who are going to say that

because John Ashcroft is a man of religious faith that he won’t enforce the law. On the contrary, I would say that knowing the importance Senator Ashcroft places in his faith, I can’t think of anyone else I would place more confident in to support the law.

Senator Feingold mentioned a few moments ago that some of the

decisions or some of the views that Senator Ashcroft has taken are

painful to some on his side. I might also say some of the views that

the current Attorney General has taken have been painful on our

side. But when he puts his hand on the Bible, as Senator Kyl said,

and swears to enforce the law, he means it. He will do it.

We are not going to hear much today, except on this side of the

table, about the qualifications of Senator John Ashcroft. They have

been mentioned a thousand times, and I want to say them again:

two-term Missouri Attorney General, head of the National Association of Attorneys General, receiving a commendation for that, twoterm Missouri Governor, head of the National Association of Governors, U.S. Senator and former member of this Judiciary Committee. We won’t hear a lot about that from the other side because

that is not the issue to them.

As a matter of fact, John Ashcroft may be the most qualified candidate ever nominated for Attorney General. And, again, we are not

going to be focusing on those qualifications from the other side.

In 1993, Janet Reno said, ‘‘The only reason for the death penalty

is vengeance. What I want is to put the bad people away and keep

them away.’’ A strong statement from the Attorney General, opposed to the death penalty. But Janet Reno applied the law of the

land, which is the death penalty. There is no fear here.

In conclusion, President-elect George Bush has chosen a likeminded conservative to serve as his U.S. Attorney General. We

should respect that choice, as has been said here. Just as Republicans by a vote of 98–0 confirmed Janet Reno—and I will say to

my colleagues, if it is painful, if I can vote for Janet Reno, you can

vote for John Ashcroft.

34

[Laughter.]

Senator SMITH. Again, Mr. Chairman, let us set aside the mudslinging, set aside the rhetoric. This is a decent, honorable man.

Let’s focus on the qualifications of John Ashcroft to be the next

U.S. Attorney General.

My friend, they are going to put you down a bumpy road. There

is no question about it. But you have got good shock absorbers, and

you are bigger than the politics of self-destruction. Handle it well,

as I know you will, and the American people, once they know who

you are, once they get to know you, they will be with you.

Thank you.

Chairman LEAHY. I thank the Senator from New Hampshire, and

I do wonder if he is feeling badly about voting for Attorney General

Reno. At least he has the satisfaction of knowing that while the national crime rate went up for the 12 years before she came there,

it went down for the 8 years she was there. So that will give you

a chance to point to a very good accomplishment.

Having said that—

Senator SESSIONS. It didn’t go down all those years. Just a few.

Chairman LEAHY. It didn’t go down any before.

Senator SESSIONS. Yes, it did.

Senator HATCH. Enough said.

Senator SESSIONS. I will show you the numbers. I was there.

Chairman LEAHY. Well, maybe it went down when you were U.S.

Attorney.

Senator HATCH. It is going to go down a heck of lot more under

Attorney General Ashcroft, I guarantee you that.

[Laughter.]

Chairman LEAHY. I wish you would stop delaying this, Senator

Hatch. We have got to get going with this.

Now I welcome again the distinguished Senator from Kansas,

who is a friend to all of us in this body, and we are delighted to

have him here in the Committee. Please go ahead.

STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR

FROM THE STATE OF KANSAS

Senator BROWNBACK. Thank you, Mr. Chairman. And it is a

pleasure to join this Committee. I look forward to serving on it on

the important issues that come here before this Committee, and

this is one of them.

John, welcome, and, Janet, delighted to have you folks here. I am

looking forward to your confirmation as Attorney General and your

serving with distinction in that capacity as you have every place

else you have served in your long public career that you have had

thus far.

As a personal note, you know, they say a true friend is somebody

who give you the shirt of their back. My apartment complex I was

in in town was in a fire this last year, and I was standing out in

the streets with not much else that I got out with. And the

Ashcrofts came over and gave me a roof over my head for several

days and took me in, and unlike Senator Feingold’s experience

driving, I would put you as Secretary of HUD in a moment.

[Laughter.]

35

Senator BROWNBACK. The housing was excellent, wonderful accommodations, and they were very kind. And I would dare say they

would do that for anybody in this room, not just me. That is the

kind of people that John and Janet Ashcroft are. And I had a personal experience, and I deeply appreciate that kindness you showed

me then and you have all along.

Our States share a common border. We have served on two committees together, the Commerce and Foreign Relations Committees. Our offices are just down the hall from each other. So we have

had a chance to work on a lot of things together. But, really, much

more important than either geography or committee assignments,

John has shared with me through his life, through the things that

he has done, through what I have observed, what I have seen, what

I have talked with him about, his honesty, his integrity, his devotion to his family and to his Creator, his principled character, and

his steadfast belief that each of us is put here on Earth to help our

fellow man and to leave this world a better place for all of our children, for those here now and those yet to be.

And contrary to the assertions of those who make a living exacerbating the tensions that divide us as a Nation, I know John

Ashcroft is committed to our Nation’s promise of equal justice for

all, no matter what their stage of life. He has been an outstanding

public servant, an example of public service that many of us on this

dais would be proud to have.

Now, in the Constitution, Article II, Section 3 provides that the

President ‘‘shall take care that the laws be faithfully executed.’’ I

am certain John has already read that provision many, many

times.

John, when President-elect Bush nominated you to head the Department of Justice, he stated that he believed in your ‘‘commitment to fair and firm and impartial administration of justice.’’ When you accepted President-elect Bush’s nomination, you reaffirmed for the world to hear your commitment to equal justice

under the law, something you have served your entire life with distinction and will continue to do so.

Mr. Chairman, let me close my brief statement by saying to our

guests at the witness table that, John, you are missed here in the

Senate. You really are. But I look forward to voting for your confirmation and to working with you as Attorney General of the

United States, and you are going to do an outstanding job.

Thanks.

Chairman LEAHY. Thank you.

I see no other Senators have statements to make. We will take

a 10-minute break, and before everybody leaves, a lot of people

want to come in. If there is anybody who is—I say this without a

great deal of expectation, but if there are those who wish to leave

and give their seats to others, there are those available to take the

seats. And I mention this because we will have closed-circuit TV

in Dirksen 226 with chairs and so forth.

With that we will stand in recess.

[Recess from 3 p.m. to 3:22 p.m.]

Chairman LEAHY. If everyone could get seated? So we can understand where we stand, before we go to Senator Ashcroft’s testimony, we will first have three distinguished Senators who are here

36

who wish to introduce him, and following tradition, as he is from

Missouri, we will first to the senior Senator from Missouri, Senator

Bond.

Senator BOND. Mr. Chairman, if you don’t mind, I might defer

to the other members of the panel for their first introductions, and

I would be happy to relinquish my spot and follow as the third of

the introducers.

Chairman LEAHY. The Senator, of course, has that right. I thank

him for his courtesy, and then we will go to Senator Carnahan, the

other Senator from Missouri.

PRESENTATION OF THE NOMINEE BY HON. JEAN CARNAHAN,

A U.S. SENATOR FROM THE STATE OF MISSOURI

Senator CARNAHAN. Thank you, Mr. Chairman, Senator Hatch.

Three months ago this very day, I could not possibly have imagined that I would be here. And I suspect that Senator Ashcroft

could say the same. During the time that John Ashcroft served the

State of Missouri, my late husband, Mel Carnahan, also served in

public life, as State treasurer, Lieutenant Governor, and Governor.

So I have an appreciation for the many burdens that Senator

Ashcroft and Janet and his family have had to bear in order to

serve.

Now a new burden rests upon his shoulders and upon each Member of the U.S. Senate. We are considering the nomination of Mr.

Ashcroft to be the Attorney General of the United States, one of the

most powerful and sensitive offices in the Nation.

I urge you to show him fairness but not favoritism, to welcome

all the facts without fear, and to base your decision on principle

and not partisanship. I ask you to look beyond any history of

friendship or disputes and to look beyond the bonds or divisions of

party and to look beyond the urging of interest groups expressing

either support or opposition to this nomination. Instead, let us base

our decision on the facts as they are determined by a full and fair

hearing. I believe that is how we can best serve the interests of the

people of America.

Mr. Chairman, Senator Hatch, as a proud resident of the ‘‘Show

Me’’ State and a member of this esteemed body, I come here today

to introduce to you my fellow Missourian, John David Ashcroft.

Thank you.

Chairman LEAHY. Thank you very much, Senator.

Senator Hutchison, along our original procedure, we will go to

you. Senator Kay Bailey Hutchison of Texas.

PRESENTATION OF THE NOMINEE BY HON. KAY BAILEY

HUTCHISON, A U.S. SENATOR FROM THE STATE OF TEXAS

Senator HUTCHISON. Thank you, Chairman Leahy, Chairman

Hatch, and other members of the Committee.

I am pleased to be here in support of my good friend, former Senator John Ashcroft, whom I have known for many years before he

became my colleague. In fact, I was in Kansas City with him and

Janet when he had his first press conference after suspending his

campaign for the U.S. Senate for 10 days out of respect for his deceased opponent.

37

The people of America saw the true heart of John Ashcroft in the

way he handled the tragic death of Mel Carnahan. He showed magnanimity in his defeat. He put the people of Missouri before his

own self-interest.

Mr. Chairman, I think he will do the same for the people of

America as Attorney General of the United States.

John and I have served together for 6 years. He brings an impressive background, which all of you have heard several times

today. I also think it is worth mentioning because I think it adds

to the integrity of this family to mention his wonderful wife, Janet,

who has spent the last 5 years showing her commitment to education and diversity by teaching at one of our great historically

black colleges, Howard University.

Senator Ashcroft and I have worked together on many issues,

and I want to mention a few of those here because he was a leader.

He was leader in cosponsoring my legislation to eliminate the marriage tax penalty, which has the effect of taxing many women at

higher rates when they enter the workplace. Last year, he and I

worked together to reauthorize the Violence Against Women Act.

He and I both introduced legislation to amend the current stalking

laws to make it a crime to stalk someone via electronic means,

such as the Internet. This new criminal law is now in place.

John led the effort to allow hourly wage earners, particularly

working mothers, the ability to craft flexible work schedules to better meet the demands of both job and family. While in the Senate,

John Ashcroft voted to prohibit people convicted of domestic violence from owning a firearm. John also took a very important issue,

increasing the rights of victims. While he was Governor, he enacted

a victims rights law in Missouri and has been a staunch cosponsor

with Senator Kyl on the victims rights constitutional amendment,

along with Senator Feinstein. Also while Governor, he appointed

the first women to the Missouri Supreme Court.

So I would say to this Committee, maybe you might not agree

with John Ashcroft on every issue. I think there will be legitimate

philosophical differences between Congress and the executive

branch. But as I have heard all of the opening statements today,

there has been no question whatsoever of John Ashcroft’s qualifications, his experience for this job, and his absolute, total integrity.

On the question of enforcing the law, I don’t think there is any

question that John Ashcroft will uphold and enforce all the laws of

our country and do it vigorously. So in nominating John Ashcroft,

President-elect Bush has made his choice, and I believe the Congress should respect the new President’s decision.

I am pleased to be here, and I thank you, Mr. Chairman, for giving me the opportunity to say a few words on behalf of my former

colleague, a person for whom I have great respect.

Chairman LEAHY. Thank you, Senator Hutchison, and I appreciate your taking the time to be here.

Senator Bond, we will go now to you, please.

PRESENTATION OF THE NOMINEE BY HON. KIT BOND, A U.S.

SENATOR FROM THE STATE OF MISSOURI

Senator BOND. Mr. Chairman, Ranking Minority Member, temporarily, Senator Hatch—

38

Chairman LEAHY. He wants you to emphasize, he wants you to

repeat ‘‘temporarily.’’

[Laughter.]

Senator BOND. Temporarily, Senator Hatch. If I may submit my

full statement for the record, I will try to summarize it because I

have a good bit to say about the man I am honored to present

today, President-elect Bush’s nominee for Attorney General.

It is a proud day for me, for the State of Missouri, and for this

body. As a well-respected former member of this body, John

Ashcroft doesn’t need to be introduced to you.

I go back to 1973. I had the responsibility to appoint a State

auditor from Missouri, and based upon what I saw as promise in

John Ashcroft, his character, intelligence, and commitment to public service, I selected him. For 28 years, I have watched him work

every day in the best and highest traditions of this country. Those

of you who worked with him in the Senate have had an opportunity

to see that.

If you were to ask me one word to describe John Ashcroft, it

would be integrity, and integrity means a steadfast adherence to a

strict moral or ethical code. I would say to my colleagues on the

Committee that code subsumes within it adherence to the Constitution and laws.

Throughout John Ashcroft’s career as Attorney General and Governor, he has done that. But in this new position I can think of no

one better to be the chief law enforcement agent of this country.

He believes in strong and fair law enforcement. He has a consistently strong record on law enforcement, and it is supported by

those on the front lines of law enforcement.

If you would permit me, Mr. Chairman, I wish to recognize Mary

Ann Viverette, chief of police for Gaithersburg, Maryland, who is

here today on behalf of the International Association of Chiefs of

Police, 18,000 members strong, who know firsthand how crucial it

is to have the support of someone like John Ashcroft in the Attorney General’s office. They are behind John, and I thank you very

much, Chief.

Mr. Chairman, in recent weeks we have seen self-described proponents of various activist groups try to convince Senators that

there is a different John Ashcroft than the man we know personally. Like a sidewalk con artist, these groups are asking Senators,

‘‘Who are you going to believe, me or your own lying eyes?’’ Well,

they are asking members of this body to embrace a caricature of

John Ashcroft over Senators’ own close knowledge of the man’s fine

record, built on this Committee and on the Senate floor.

I have been disappointed in some of the things that I have heard

said about John Ashcroft. Slash and attack methods are something

we have seen far too often in Washington, and I believe the American people are sick and tired of it.

Nevertheless, there are legitimate questions that can and should

be raised, and several members of the Committee have raised the

reasonable question of whether John Ashcroft can be trusted to enforce the laws with which he personally disagrees. Well, I am here

to tell you that I have observed him, and I can give you the Missouri ‘‘show me’’ test. He will enforce the laws.

39

We can assume that most, if not all, United States Attorneys

General have disagreed with some of the laws they were charge

with enforcing. But why is it now that John Ashcroft, a conservative and committed Christian, is charged by some extreme groups

of special interest that he would somehow be unable to enforce the

laws because of his beliefs? I see some elements of religious bigotry

in that.

John Ashcroft has stated and repeated firmly that he believes his

religion teaches him that he should not impose his religious beliefs

on anybody else. He has, however, sought, as we all have, to

change the law where he deeply believes it was inadequate or

wrong.

Undoubtedly, every member of this Committee can find votes

cast or positions taken by John Ashcroft with which we disagree.

I certainly can. Obviously, some of you find many issues on which

you disagree legislatively with John Ashcroft. But that is not the

point.

When you look at the record, you will see that John Ashcroft believes in enforcing the law as it stands. As Missouri’s Attorney

General, he was my lawyer when I was Governor. In 1982, despite

his opposition to abortion, he issued an opinion in which he ruled

that the Missouri Division of Health could not release to the public

information on the number of abortions performed by particular

hospitals.

Despite his personal view that life begins at conception, he

issued an opinion that Missouri law did not require a certificate of

death if the fetus was 20 weeks old or less.

Despite his own personal commitment to the distribution of Bibles and other religious materials, he issued an Attorney General’s

opinion in 1979 that a Board of Education has no legal authority

to grant permission to any organization to distribute religious material to any or all the study body on school property.

And although he stated his opposition to racial set-asides, he

issued an opinion in 1980 that allowed the Missouri Clean Water

Commission to award a 15 percent State grant to the Metropolitan

St. Louis Sewer District to establish a minority business enterprise

program.

The John Ashcroft you and I know will be a good Attorney General. I can think of no nominee who is better qualified, Senator Kyl,

and many of you have already spoken about the qualifications. I

must say in deep regret that the characterization of John Ashcroft’s

record by my distinguished colleague from Massachusetts is flat

simply wrong. That is not the person that we in Missouri know and

respect.

John Ashcroft will and can continue to serve this Nation with

distinction. He knows the legislators’ job is to write the laws and

the Attorney General’s job is to enforce it.

The American people have a right to expect something better

than an Attorney General who bends the law to serve a President’s

political needs and personal views. I know John Ashcroft would

never engage in such behavior. He will faithfully, fairly, and effectively administer the laws of this great land. He is not one to bend

the laws to his personal beliefs.

40

I come before this Committee to respectfully ask that John

Ashcroft’s nomination to be Attorney General be judged on the

basis of the content of his character and the charges against him

which are personal and insubstantial be dismissed and that this

Committee and the full body confirm him as United States Attorney General.

[The prepared statement of Senator Bond follows:]

STATEMENT OF HON. KIT BOND, A U.S. SENATOR FROM THE STATE OF MISSOURI

Mr. Chairman. Ranking Minority Member Hatch.

Members of the Committee and colleagues.

I am honored to come before you today to present President-elect Bush’s nominee

for Attorney General. It is a proud day for me. It is a proud day for Missouri. And

it should be a proud day for the United States Senate.

As a well-respected former member of this body, John Ashcroft needs no introduction to you.

Each of you knows him as I do: A good and honest man who has spent his life

in the service of the good people of Missouri and the nation. John Ashcroft is a man

whose personal beliefs animate his lifetime of selfless service to Missouri and the

nation.

In 1973, I had the responsibility to appoint a State Auditor for Missouri and

based upon what I saw to be the promise in John Ashcroft—his character, intelligence and commitment to public service—I selected him. For 28 years, I have

watched him work every day in the best and highest tradition of this country. Many

of you have also seen that during the last six years, when John served with distinction on this very committee.

I know this man. Each of you know this man. And he is a good man whose service

reflects well on his friends, his family, Missouri and on this great body.

If asked by the Judiciary Committee to use only one word to describe John

Ashcroft, I would be forced by the weight of facts and my own personal experience

to select the word ‘‘INTEGRITY.’’

I can think of very few of our colleagues—regardless of party—who better personifies that virtue.

And in this day and age, what exactly does that mean? INTEGRITY.

It means a ‘‘steadfast adherence to a strict moral or ethical code.’’

Throughout John Ashcroft’s career, as Missouri’s Attorney General, as Missouri

Governor for two terms, as United States Senator, he has demonstrated above all

else a ‘‘steadfast adherence to a strict moral and ethical code.’’

I can think of no better man to be the nation’s chief law enforcement officer. Everything about John Ashcroft’s record of public service—and personal character—

tells us that he will be faithful to the law. A ‘‘steadfast adherence to a strict moral

or ethical code’’ is precisely the virtue that must be held by the person entrusted

with enforcing the laws of the land.

John Ashcroft has built a record during his service of strong support for law enforcement. It is not new. It goes back to when he served as our state’s Attorney General and as Governor. Everything about John’s career tells us that he understands

one thing above all else: the promise contained in this nation of laws can only be

realized when all the laws are properly enforced.

Strong law enforcement is good for all Americans. What higher responsibility is

there for a government than to provide the safety and security citizens require to

pursue their full potential? An unsafe street or neighborhood infringes upon the

freedom of law-abiding citizens. It is no mistake that the goal of establishing Justice

and ensuring domestic tranquility reside in the very first sentence of our Constitution.

John Ashcroft’s consistently strong record on law enforcement is supported by

those on the front lines.

Mr. Chairman, permit me to recognize Mary Ann Viverette, Chief of Police for

Gaithersburg, Maryland, who is here today on behalf of the International Association of Chiefs of Police—an 18,000 member organization of the top law enforcement

leaders in their communities. They know first-hand what crime does to neighborhoods and people. And they know how crucial the support of people like John

Ashcroft is to their efforts. They are behind John Ashcroft all the way. Thank you,

Mary Ann.

Mr. Chairman, in recent weeks, we have seen self-described spokesman of various

activist groups try and convince Senators that there is a different John Ashcroft

41

than the man they know personally. Like a sidewalk con artist, these activist groups

ask Senators: ‘‘who are you going to believe, me or your own lying eyes?’’ They are

asking members of this body to embrace a caricature of John Ashcroft over Senators’ own close knowledge of this man’s fine record, built on this Committee—and on the

Senate floor.

That is just plain wrong.

A well-respected former member of this body deserves better than that.

John Ashcroft deserves better than that. Our new President and the American

people deserve better than that.

I must tell you, what I have seen in the weeks following John Ashcroft’s nomination has deeply disappointed me.

I have seen activist groups band together to wage an attack campaign against

John Ashcroft. The irony is clear to all of us who are familiar with how Washington

really works—this attack campaign really has nothing to do with John Ashcroft’s ability to be a great Attorney General on behalf of the American people.

It is all about advancing the activist attackers’ agendas. By targeting and setting

out systematically to smear John Ashcroft, they seek to rally their own troops, raise

money and secure publicity.

These slash-and-attack methods against John Ashcroft are something we have

seen far too often in Washington in recent years. Something the American people

are just plain sick and tired of seeing.

Let’s be perfectly clear about what they are doing: they are trying advance their

own interests by engaging in the politics of personal destruction. They are trying

to build themselves up by tearing John Ashcroft down. That is just plain wrong. It

is a tactic we must reject.

One of the false charges thrown against John Ashcroft is that he cannot be trusted to enforce laws with which he personally disagrees. We can assume that most

if not all United States Attorneys General have disagreed with some of the laws

they were charged with enforcing. Why is it now that in John Ashcroft, a conservative and committed Christian, that doubts are aired—and given credence—about

his ability to enforce the law?

Some activists who claim to embrace and promote religious diversity and tolerance seem unable to extend their beliefs to a conservative Christian. I thought we

broke that barrier when John F. Kennedy became President and we saw that he

did not put his Catholic beliefs above the law of the land. And what of our colleague

Joe Lieberman, whose candidacy for Vice President and his public religious utterances tore down even more barriers? Should religious diversity and tolerance be extended only to some religions and not others? What we see in the campaign against

John Ashcroft is nothing less than religious bigotry.

John Ashcroft has stated and firmly believes that his religion teaches him that

he should not impose his religious beliefs on anybody else. He has a deep and abiding faith, but he also understands the preeminence of temporal law in the United

States Constitution and the laws of this land. He has sought, as we all have, to

change the law where he deeply believed it was inadequate or wrong.

Undoubtedly, every Member of this Committee can find votes cast or positions

taken by John Ashcroft with which we disagree. I certainly can. Obviously, some

of you find many issues on which you disagree legislatively with John. But that is

not the point.

When you look at the record you will see that John Ashcroft believes in enforcing

the law as it stands. As Missouri Attorney General, he was my lawyer when I was

Governor. In 1981, despite his opposition to abortion, he issued an Opinion (Attorney General Opinion No. 5, October 22, 1981 [1981 WL 154492]), in which he ruled

that the Missouri Division of Health could not release to the public information on

the number of abortions performed by particular hospitals. He also ruled that in

order to protect the patient-physician privilege, access to health data maintained by

the Division of Health was subject to review only by Public Health officers.

Despite his personal view that life begins at conception, he issued an Opinion (Attorney General Opinion No. 175, September 23, 1980 [1980 WL 115450]), that Missouri law did not require any type of death certificate if the fetus was 20 weeks old

or less.

Despite his own personal commitment to the distribution of bibles and other religious materials to assist people in developing a spiritual understanding of their relationship with God, he issued an Attorney General opinion in 1979 (Attorney General Opinion No. 8, February 8, 1979 [1979 WL 37969]) that a Board of Education

has no legal authority to grant permission to any organization to distribute religious

material to any or all the student body on school property.

Although he has stated his opposition to racial set-asides, he issued an Attorney

General Opinion in 1980 (Attorney General Opinion No. 59, April 9, 1980 [1980 WL

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115410]) that allowed the Missouri Clean Water Commission to award a 15 percent

state grant to the Metropolitan St. Louis Sewer District to establish a minority business enterprise program.

The John Ashcroft you and I both know will be a good attorney general. As a matter of fact, I can think of no nominee who has had more experience and better preparation for the office of Attorney General of the United States. He served with distinction as Attorney General in my State of Missouri and he was selected by his

fellow Attorneys General to lead their national association.

He served with distinction as a two-term Governor, winning with huge margins

in a state where Democrats have traditionally out-polled Republicans. That tells you

all you need to know about John Ashcroft’s politics and values: they are the same

advocated by the great majority of Americans. And it tells you how out of touch with

America some of these activist opposition groups are.

John has served a term in the United States Senate and served on this very committee where he dealt with many of the issues that are before the Department of

Justice.

John Ashcroft will continue to serve this nation with distinction. He knows that

the legislators’ job is to write the laws and that Attorneys General enforce those

laws.

The American people have the right to expect something better than an Attorney

General who bends the law to serve a President’s political needs and personal views

and I know John Ashcroft would never engage in such behavior. He will faithfully,

fairly and effectively administer the laws of this great land.

I come before this committee and ask that John Ashcroft’s nomination to be Attorney General be based on the content of his character. And that this committee— and the United States Senate—reject the slime campaign against this fine man.

Failure to support this nominee would not only be a disservice to John Ashcroft,

it would also tarnish the reputation of this institution.

We must not let that happen.

Thank you.

Chairman LEAHY. I thank the Senator.

Senator KENNEDY. Mr. Chairman, I appreciate what Senator

Bond has mentioned. I will come back during the question period,

and we will have an opportunity to have an exchange with the

nominee.

Chairman LEAHY. Whatever the Senator wants. It is somewhat

extraordinary for somebody introducing somebody to take issue

with an opening statement of a Senator on the panel, and I would

give opportunity for you to respond now if you want.

Senator BOND. I would be happy to.

Senator KENNEDY. We will wait until the question period.

Chairman LEAHY. Why don’t we do this? I thank all three of the

introducers, and why don’t I let you leave, and maybe the staff can

move this around a little bit so that Senator Ashcroft could sit in

the center, move the name tags around and the rest.

I thank Senator Hutchison, Senator Carnahan, and Senator

Bond. I thank you for being here.

Chairman LEAHY. Senator Ashcroft, would you please stand to be

sworn? Do you swear or affirm that the testimony you are about

to give before the Committee will be the truth, the whole truth,

and nothing but the truth?

Senator ASHCROFT. I do.

Chairman LEAHY. Please be seated. Senator Ashcroft, before you

begin your statement, it has been mentioned several times that you

have family and friends here. Would you like, following our normal

procedure at these things, to point out family members or others

you may wish to in the audience?

Senator ASHCROFT. Mr. Chairman, if it pleases the Committee,

I would make that a part of my opening remarks.

Chairman LEAHY. It is totally your choice. Go ahead.

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STATEMENT OF THE NOMINEE, JOHN ASHCROFT, OF MISSOURI, TO BE ATTORNEY GENERAL OF THE UNITED STATES

Senator ASHCROFT. Mr. Chairman, Senator Leahy, Senator

Hatch, members of the Committee— Senator THURMOND. Would you speak in your loud speaker?

Senator ASHCROFT. Yes, Senator Thurmond, I will. Thank you

very much.

Senator SESSIONS. You should know that by now, John.

[Laughter.]

Senator ASHCROFT. It is a case of how soon we forget. What

struck me most is that I came here and I had a distinct and clear

signal that being out of the Senate is different, because each other

Member of the Senate was designated as ‘‘honorable,’’ and I’m just

designated as ‘‘Senator,’’ and I’m trying to figure out what the difference is between being honorable and being a Senator.

Chairman LEAHY. Be careful. You may lose some votes over here.

[Laughter.]

Senator HATCH. I don’t think so.

Senator ASHCROFT. Thank you. It is a high honor for me to appear before you today for consideration as the Attorney General of

the United States of America. I first want to extend my appreciation to the Senators from my home State of Missouri, Senators

Bond and Carnahan, for the courtesy and kindness of participating

in an introduction for me at this Committee today. And, of course,

it is most pleasing that Senator Kay Bailey Hutchison of Texas

would join them by adding introductory remarks on my behalf. I

extend to her my sincere appreciation as well.

For 4 years I had the privilege of sitting with you on this Committee. During that time I never thought of it simply as the Judiciary Committee. Instead, I thought of it being the ‘‘Justice’’ Committee, for this distinguished body is the ultimate legislative voice on

America justice. It was an honor to serve with you in that noble

endeavor.

Today I am here in a far different capacity. President-elect

George W. Bush has designated me to lead the ‘‘Justice’’ Department—the principal executive voice on American justice and what

must be, should be, and continue to be the role model for justice

the world over.

It is not only with honor, therefore, that I sit before you today;

it is with an awesome sense of responsibility. For I know that, if

confirmed on my shoulders will rest the responsibility of upholding

American justice, a tradition that strives to bring protection to the

weak, freedom to the restrained—I wasn’t going to introduce my

grandson, Jimmy, at this point.

[Laughter.]

Chairman LEAHY. Jimmy, what you got going for you, there are

a lot of grandparents on this panel.

Senator ASHCROFT. Thank you, Jimmy. He upstages me around

the house, too. I’m not what I used to be.

Our tradition in the Justice Department that strives to bring

protection to the weak and freedom to the restrained, liberty to the

oppressed, and security to every citizen.

Mine will be the same mantle carried by my predecessors: by Edmond Randolph, President George Washington’s choice to be AmerVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00057 Fmt 6633 Sfmt 6602 C:\HEARINGS\76342A.001 SJUD4 PsN: SJUD4
44

ica’s first Attorney General; by Robert Kennedy, who found within

himself the courage to surmount America’s historic racial intolerance and to lend powerful assistance to the burgeoning civil rights

movement.

I understand the responsibility of the Attorney General’s office,

I revere it, I am humbled by it. And if I am fortunate enough to

be confirmed as the Attorney General, I will spend ever waking

moment—and probably some sleeping moments as well—dedicated

to ensuring that the Justice Department lives up to its heritage—

not only enforcing the rule of law, but guaranteeing rights for the

advancement of all Americans.

The Attorney General must recognize this: The language of justice is not the reality of justice for all Americans. My wife has

helped me with anecdotes of her from her experience to understand

that there are millions of Americans who wonder if justice means

hostility aimed at ‘‘just us.’’ From racial profiling to news of unwarranted strip searches, the list of injustice in America today is still

long. Injustice in America against any individual must not stand.

This is the special charge of the U.S. Department of Justice.

No American should be turned away from a polling place because

of the color of her skin or the sound of his name.

No American should be denied access to public accommodations

or a job as a result of a disability.

No American family should be prevented from realizing the

dream of home ownership in the neighborhood of their choice just

because of skin color.

No American should have the door to employment or educational

opportunity slammed shut because of gender or race.

No American should fear being stopped by police just because of

skin color.

And no woman should fear being threatened or coerced in seeking constitutionally protected health services.

I pledge to you that if I am confirmed as Attorney General, the

Justice Department will meet its special charge. Injustice against

individuals will not stand. No ifs, ands, or buts. Period.

The Attorney General is charged with the solemn responsibility

of serving as the attorney for the United States of America. The Attorney General is the people’s counsel. The Attorney General must

lead a professional, non-partisan Justice Department that is uncompromisingly fair, defined by integrity, and dedicated to upholding the rule of law. I pledge to you that if I am confirmed as Attorney General, I will serve as the Attorney General of all the people.

Today, I would like to spend a few minutes telling you a bit

about myself and my family and my beliefs.

I am the grandson of immigrants. My father was a pastor and

a college president. I was raised in Springfield, Missouri, in a home

where all of God’s children were welcome. In fact, my parents gave

up their bed so many times that I thought that they actually knew

all of God’s children who came to visit. That lesson of hospitality

and generosity was just one of many my parents urged on me.

I went to Yale University where I dreamed of playing quarterback. When I got there, I discovered that either I was slow or everybody else was really fast. So I studied hard, and I was fortunate

45

enough to graduate and then attend the University of Chicago Law

School.

For me, the law was about the promise of justice, the promise

that under law, all men, all women, all people are equal. While in

Chicago, however, I did find one person I thought a little more

equal than all the others, a woman of grace and charm and intellect and not insignificantly to me as a young man, a woman that

I thought was the most beautiful I had ever seen. The only thing

better than her, I thought, would be two of them.

[Laughter.]

Senator ASHCROFT. After rebuffing me several times, my persistence overcame her better judgment. She has stuck with me for 33

years, and members of the Committee, her name is Janet Ashcroft.

I am privileged to have her with me today.

I am also pleased to tell you that she is an accomplished legal

author and has spent the last 5 years teaching law in the Business

Department of Howard University here in Washington, D.C.

I am also pleased as well to welcome her identical twin sister— they are not as identical as they used to be, but I could always tell

them apart—Anne Giddings, to the hearing today.

Senator THURMOND. Tell her to raise her hand.

[Laughter.]

Senator ASHCROFT. Yes. Will the real Janet Ashcroft please

stand up?

[Applause.]

Senator ASHCROFT. And, Anne, would you stand up with your

sister, please? Thank you.

I wanted also to introduce my daughter, Martha Grace Patterson

who is an attorney form Kansas City, attorney and mother, my

grandson, Jimmy Patterson, who has already made his presence

known to you. I regret that my eldest son, John Robert Ashcroft,

whose faculty responsibilities at Forest Park Community College in

St. Louis required his presence with students and cannot be with

us today. Additionally, I regret that active-duty responsibilities of

my son, Andrew David Ashcroft, in the United States Navy make

impossible his attendance at this hearing. I am grateful for my

family. They are wonderful people. They are not wonderful because

of me. They are wonderful in spite of me. They are a wonderful

support and help to me. I thank God for them.

Upon graduating from law school, I returned to Missouri where

I taught business law at Southwest Missouri State University, and

after 5 years of teaching, I embarked on a quarter-century career

in public service serving the people of Missouri. In 1973, the thenGovernor Kit Bond appointed me as State auditor. Two years later,

then-Attorney General Jack Danforth appointed me Assistant Attorney General. I could not have had two more accomplished and

distinguished mentors in public life than Jack and Kit. Beginning

in 1976, I was elected to the two terms as Attorney General, then

two terms as Governor, and unfortunately—well, pardon me. Just

one term as the United States Senator.

In the course of the six statewide election campaigns, I came to

know the people of Missouri very well. Missouri is representative

of the rich diversity of the American people. The people of the

Show Me State respond to the plainspoken honesty and tolerance

46

of men like Jack and Kit and, of course, Harry Truman. I am

pleased they elected me to statewide office five times.

Eighteen years of my service in elective office have been focussed

on enforcing the law, 6 years enacting the law. I know the difference between enactment and enforcement, and my record shows

that.

I am here today as the Attorney General designate. I know what

the office requires. I have been an Attorney General before. I understand that being Attorney General means enforcing the laws as

they are written, not enforcing my own personal preference. It

means advancing the national interest, not advocating my personal

interest.

For example, in 1979, I issued an Attorney General’s opinion

stating that under the State constitution and law of Missouri, a

local school board of education had no legal authority to grant permission for the distribution of religious publications to the student

body on public school grounds.

On another occasion, contrary to the demands of pro-life advocates, I directed State government, the State government of Missouri, to maintain the confidentiality of abortion records because a

fair reading of the law required it. Throughout my tenure, I did my

level best to enforce fully and faithfully the laws as they were written and to protect the legal interests of the State of Missouri when

it was attacked and when the institutions of the State were attacked. I did this without regard to any personal policy preferences,

and when I left the Attorney General’s office, Missouri was a State

more committed to fairness and justice.

From my experience, I also understand that the citizen’s paramount civil right is safety. Americans have the right to be secure

in their persons, in their homes, and in their communities. Gun violence, violence against women, drug crime, sexual predators, they

all threaten to deny this most fundamental of rights to be secure

in the person, property, and community of individuals. It is a core

responsibility that Government, led by the Attorney General and

the Department of Justice, cooperating with local law enforcement

officials, will secure this right.

Children don’t learn in schools overrun by neighborhood violence.

Jobs will not be found in communities where criminals own the

streets. No American who now feels threatened should have to

move in order to live in a safer neighborhood.

My record on these issues is clear and unmistakable, and my determination is unwavering. I will continue to work to deter and

punish violent criminals who use guns. I will vigorously force Federal domestic violence laws and utilize the Violence Against

Women Act to assist States in this effort. Likewise, we will put

new vigor into the fight against the illegal drug organizations and

redouble our vigilance against terrorists.

During my service as both State Attorney General and Governor,

we increased the number of full-time law enforcement officers by

over 60 percent. We also lengthened prison sentences for criminals

and significantly increased juvenile prosecutions for serious crimes.

During my tenure as Governor, we won passage for a Missouri Victim’s Bill of Rights. We secured $100 million in increased funding

to combat violence against women. We also increased funding for

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anti-drug programs by almost 40 percent, and three-quarters of

that went for education, prevention, and for treatment.

As a Senator, I voted to deny the right to bear arms to those convicted of domestic violence. I supported increased funding for victims and helped enact legislation combatting telemarketing scams

against seniors. I supported mandatory background checks for gun

show sales and increased Federal funds for law enforcement at the

local level. I have always been pleased by my support from law enforcement officers, those how are here today for whom I am grateful and those who in past times have endorsed me most recently

in my campaign for the Senate by the Missouri Federation of Police

Chiefs and the St. Louis Police Officers Association. On the

strength of this record and my commitment to the personal security

and safety of the people of the United States of America, I pledge

my commitment to secure the rights of all Americans to safety and

security in their daily lives.

I also know from my service that a successful Attorney General

must be able to listen and find common ground with leaders of diversely held viewpoints. Few organizations reflect the diversity and

strongly held views as much as the bipartisan National Association

of Attorneys General. I was honored when my fellow State Attorneys General elected me president of that association. I was humbled when they recognized me for outstanding service and presented me with the distinguished Wyman Award. I was similarly

honored when the bipartisan National Governors’ Association elected me to serve as their Chairman.

I know something about the role of an Attorney General. As I

said earlier, the Justice Department has a special charge to protect

the most vulnerable in our society from injustice. I take pride in

my record of having vigorously enforced the civil rights laws as Attorney General and Governor. Not only did I enforce the law, I took

proactive steps to expand opportunity. I signed Missouri’s first hate

crime statute. By executive order, I made Missouri one of the first

States to recognize Martin Luther King Day. I led the fight to save

Lincoln University, the Missouri university founded by AfricanAmerican Civil War veterans.

I took special care to expand racial and gender diversity in Missouri’s courts. I appointed more African-American judges to the

bench than any Governor in Missouri history, including appointing

the first African American on the Western District Court of Appeals and the first African-American woman to the St. Louis County Circuit Court. It was my honor to appoint the first two women

to the Missouri Courts of Appeals and the first woman to the Missouri State Supreme Court, the only woman ever to have been appointed to that court.

No part of the Department of Justice is more important than the

Civil Rights Division. I look forward to the President’s appointment

with your advice and consent of a talented and dedicated leader of

that division. It is essential that such strong leadership pursue fair

treatment for all Americans.

Before leaving the topic of civil rights, I want to address an issue

that has been raised in the weeks since President Bush nominated

me to this post. Some have suggested that my opposition to the appointment of Judge Ronnie White, an African-American Missouri

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Supreme Court judge, to a lifetime term on the Federal bench was

based on something other than my own honest assessment of his

qualifications for the post.

During my 8 years as Governor, I was the appointing authority

for judges. As I have just noted, I exercised the power with special

care to promote racial diversity on the Missouri State court bench.

Because of my experience as Governor, when I became Senator, I

approached the judicial confirmation process with both the appropriate deference due an executive and also a personal commitment

to ensuring diversity on the bench. Of the approximately 1,686

Clinton Presidential nominees, both judicial and non-judicial, voted

on by the Senate, I voted to confirm all but 15. I voted to approve

every Cabinet nomination made by the President of the United

States. Of President Clinton’s 230 judicial nominees, I voted to confirm 218 of them. Perhaps it is needless to say, but I had philosophic disagreements with many, if not most, of those judicial

nominees. But I think the record of votes stands for itself.

On the floor of this body, I voted to confirm 26 out of 27 AfricanAmerican judicial nominees. My opposition to Judge Ronnie White

was well founded. Studying his judicial record, considering the implications of his decisions, and hearing the widespread objections to

his appointment from a large body of my constituents, I simply

came to the overwhelming conclusion that Judge White should not

be given lifetime tenure as a U.S. District Court judge. My legal

review revealed a troubling pattern of his willingness to modify settled law in criminal cases. Fifty-three of my colleagues reached the

same conclusion. While I will not take time during my brief opening statement to discuss particular matters in Judge White’s record

that compelled me to my decision, I welcome the opportunity to discuss those matters later.

Another issue merits specific mention in these opening remarks,

and that is the issue that we would identify with the case of Roe

v. Wade which established a woman’s constitutional right to an

abortion.

As is well known, consistent with Republican United States Attorneys General before me, I believe Roe v. Wade, as an original

matter, was wrongly decided. I am personally opposed to abortion,

but as I have explained this afternoon, I well understand that the

role of Attorney General is to enforce the law as it is, not as I

would have it. I accept Roe and Casey as the settled law of the

land. If confirmed as Attorney General, I will follow the law in this

area and in all other areas. The Supreme Court’s decisions on this

have been multiple, they have been recent, and they have been emphatic.

I have been entrusted with public service for more than 25 years.

It is a responsibility I have honored and a trust that I believe I

have kept. During those years, I have not thought of myself as a

public servant of some of the people, but a keeper of the public

trust for all the people. If I become United States Attorney General, I again commit to enforcing the law, all of the law, for all of

the people.

I appear here today as a man of faith, a man of common-sense

conservative beliefs, a man resolutely committed to the American

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ideal. On occasion, some of you have disagreed with my views. You

have done so respectfully, and I thank you.

In turn, I hope that my disagreements with you have reciprocated your respect, but whether we are conservatives or liberals,

religious or secular, Republicans or Democrats, what we have in

common is far greater and more important than what divides us.

As Americans, we live under a Constitution uniting us under a rule

of law, a Constitution that allows us to live side by side, in harmony, working for the mutual interest of all Americans and our

communities. It is, indeed, adherence to the rule of law that is the

basis of our democracy.

Never in the history of the world has any country so thoroughly

dedicated itself to respecting laws, for it is in respecting laws that

we respect the individual dignity and freedom of people. Nowhere

in Government is thorough obedience to the rule of law more powerfully evident and more urgently necessary than at the Department of Justice.

If I am fortunate enough to be confirmed by the U.S. Senate and

to become the next United States Attorney General, I pledge to you

that strict enforcement of the rule of law will be the cornerstone

of justice.

As a man of faith, I take my word and my integrity seriously.

So, when I swear to uphold the law, I will keep my oath, so help

me God.

[The biographical information of Senator Ashcroft follows:]

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Chairman LEAHY. Thank you, Senator.

What we will do now, we will have in the first round of

questioning—

[Audience disturbance.]

Chairman LEAHY. The Committee will be in order. The Committee will stand in recess until the police can restore order. Officer,

restore order. The police will restore order.

[Pause.]

Senator THURMOND. Put them out and keep them out.

Chairman LEAHY. The Committee will also stay in order.

It will be the policy of the Chairman to not allow any demonstrations for or against the nominee. You are all guests of the U.S. Senate. The hundred Senators have a duty to vote for or against this

nominee. We will make up our mind based on the testimony within

this room, and the testimony of the nominee. We will not allow

demonstrations of any sort. Everybody has a chance to write or call

their individual Senators for or against Senator Ashcroft.

I thank the Capitol Police for restoring order.

Now, as I said before, it will be the intent of the Committee to

have 15-minute rounds for each Senator, doing the usual alternating on the first round. If there are further questions, we will have

shorter rounds after that.

I have told the nominee that if at any time he wants a break,

of course, we will take one, again, following normal time.

So I will start the questioning, and then we will turn to Senator

Hatch.

Senator HATCH. Senator Ashcroft, while you served in the Senate, you did not have an opportunity to vote on a nomination for

Attorney General, and, in fact, this is your first hearing that you

have attended in any capacity in the Senate for Attorney General.

But from 1995 to last year, as you pointed out, you voted for a

number of President Clinton’s nominees. You also chose to oppose

and vote against a number of President Clinton’s nominees to the

executive branch, in both cases exercising the right any Senator

has.

But I wanted to explore with you what appears to be, for want

of a better term, the Ashcroft standard that you used when you reviewed Presidential nominations. I will start with that of Bill Lann

Lee. You opposed the nomination of Bill Lann Lee to head the Civil

Rights Division of the Department of Justice. In November 1997,

you said, ‘‘This is what I have been sent to Washington to do, to

evaluate whether or not an individual be the kind of administrator

in an agency that people are entitled to have.’’ You opposed Mr.

Lee because, as a civil rights lawyer, you thought, and I quote you

again, ‘‘His pursuit of specific objectives that are important to him

limit his capacity to have the balanced view of making the judgments that would be necessary for the person who runs that division.’’ You also said, ‘‘We don’t need an individual who is trying to

go against the Constitution as recently interpreted by the Supreme

Court. We need someone who is going to say, ‘I am here to provide

the administration’ ’’—and that is an actual quote—‘‘I am not here

to amend the Constitution. I am here to defend the Constitution.

That is what we need.’’

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Now, Senator, using this Ashcroft standard, do you adhere to

those views as setting the proper standard by which Senators

should evaluate Presidential nominations?

Senator ASHCROFT. Well, I am pleased, first of all, Mr. Chairman, to thank you for the question. It is an important question. I

thank you also for the way you are conducting this hearing. I appreciate your willingness to make sure that we have an opportunity to make these discussions in a setting which is conducive to

understanding.

I think the ability to enforce the law as it is written and as it

has been defined by the United States Supreme Court is very important, and when I have evaluated individuals, that is a very important criterion, especially for someone in an administrative or enforcement role and not in an enactment role. Obviously, in the Senate, we take a variety of positions because we—I say advisedly ‘‘we.’’ I am no longer a Senator, and I don’t mean to be presumptive, but because in the debate and in the exchange, we arrive at

what the law will be.

I joined with eight other Republicans on the Senate Judiciary

Committee in opposing Bill Lee’s nomination to be Assistant Attorney General because I had serious concerns about his willingness

to enforce the Adarand decision which was a recent decision of the

United States Supreme Court. He was an excellent litigant, but I

had concerns that he viewed the Adarand decision as an obstacle,

rather than as a way in which the law was defined.

Adarand held that Government programs that established racial

preferences based on race are subject to strict scrutiny. That is the

highest level of scrutiny under the Supreme Court’s Equal Protection Clause. Adarand was a landmark decision. It was substantial.

It was important.

Chairman LEAHY. But, Senator— Senator ASHCROFT. Mr. Lee did not indicate a clear willingness

to enforce the law based on that decision, in my judgment.

Chairman LEAHY. Well, Senator Ashcroft, if I could disagree with

you on that. Mr. Lee testified on a number of occasions; in fact, testified under oath, including, incidently directly in answer to your

questions that he would enforce the law as declared in Adarand.

He also said in direct answer to questions of this Committee that

he considered the Adarand decision of the Supreme Court as the

controlling legal authority of the land, that he would seek to enforce it, he would give it full effect, but you say that he would not

accept that decision and apply it fairly. Was Bill Lann Lee lying

under oath to this Committee?

Senator ASHCROFT. I certainly don’t want to say that. I would

simply want to say that when asked what the standard was, he did

not repeat the strict scrutiny standard of narrowly tailored and directly related. He—

Chairman LEAHY. But how could he be more strict—

Senator ASHCROFT [continuing]. Stated another standard, and

when asked whether the standard which he applied would affect

programs, he basically said wouldn’t have any effect on the programs of the Federal Government. Now, in my judgment— Chairman LEAHY. But he said he would uphold it. I mean, what

more could he say?

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Senator ASHCROFT. He said he would—well, frankly, he could

have said that when applying a test, he would use the same test

that the Supreme Court of the United States said should be used

in strict scrutiny cases, but—and if he had, I believe that people

would have been more likely to give credence when Chairman

Hatch—of course, he made an eloquent floor statement about this

in speaking on this matter, but when Chairman Hatch delivered

his remarks on this matter, I think he made clear what the rest

of us felt, that while he said he considered the Adarand decision

the law of the land, when he discussed the way in which it was

implemented, it was clear that it would not be applied in the way

that the Supreme Court would require its application.

Chairman LEAHY. OK. Then I understand, as I said, the Ashcroft

standard on that, but let’s go, then, further. Let’s take another

step.

Like Bill Lann Lee, you have a long history of pursuing specific

objectives that are important to you, but I would assume, like he,

within the law. Throughout your public life as Attorney General

and Governor of Missouri and as a U.S. Senator, you have opposed

a woman’s constitutionally protected right to reproductive freedom

and choice, even in cases of rape and incest. You have fought voluntary school desegregation, affirmative action, and gay rights.

When you were running for President in 1998, you were quoted

as saying, ‘‘There are voices in the Republican Party today who

preach pragmatism, who champion conciliation who counsel compromise. I stand here today to reject those deceptions,’’ again, your

words.

Now, given that history—and you can understand why some

might be troubled by it—what assurances can you give us that you

would serve as the chief enforcement officer of this country with

the kind of balanced view that you acknowledge is necessary for

top officials in the Department of Justice, the balanced view that

you said others must have before you would vote for their confirmation?

Senator ASHCROFT. Mr. Chairman, with all due respect, I would

like to just have a chance to go back to that list, the litany of

things— Chairman LEAHY. Of course.

Senator ASHCROFT [continuing]. And positions you attributed to

me. You said I opposed voluntary desegregation of the schools.

Nothing could be farther from the truth. I don’t oppose desegregation. I repudiate segregation. I am in favor of integration.

When the State of Missouri was asked to fund with hundreds of

billions of dollars a program imposed by a Federal court— Chairman LEAHY. Hundreds of billions?

Senator ASHCROFT. Hundreds of millions of dollars. Pardon me.

I thank you for correcting me. I have been in Washington so long,

I forgot how to say ‘‘millions.’’ I have just started saying ‘‘billions.’’

[Laughter.]

Chairman LEAHY. I am more interested—I am more interested in

what you said at the time of the desegregation orders in Missouri.

Senator ASHCROFT. I opposed a mandate by the Federal Government that the State, which had done nothing wrong, found guilty

of no wrong, that they should be asked to pay this very substantial

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sum of money over a long course of years, and that is what I opposed.

I have always opposed segregation. I have never opposed integration. I believe that segregation is inconsistent with the 14th

Amendment’s guaranteeing of equal protection. I supported integrating the schools.

Now, while I was the Missouri Attorney General, I inherited a

desegregation lawsuit in St. Louis from my predecessor in office,

Jack Danforth. The State had been sued. I argued on behalf of the

State of Missouri that it could not be found legally liable for segregation in St. Louis schools because the State had never been a

party to the litigation.

Now, one of the responsibilities of an Attorney General, in my

judgment, is that when the entity which you represent legally is attacked or sued, you should defend it. Here, the court sought to

make the State responsibility and liable for the payment of these

very substantial sums of money, and the State not only had—had

not been found really guilty of anything.

I also took the position on behalf of the State that the court’s

inter-district remedy in that case was inappropriate because there

was never any finding of an inter-district violation.

Now, to me, I just want to try to make it clear. It has been mentioned on several occasions, and I just think I want to have the opportunity to say with clarity that I do not support segregation. I

support integration.

I happen to have been a young person in school when Brown v.

Board of Education was announced. The schools in my town had

been segregated. They were immediately integrated, and I support

that, and so I would be very pleased—there was a list of things

that were similarly— Chairman LEAHY. And we will go back to them, and I will make

absolutely sure, I can assure you, that you will have the time to

speak about them.

I would point out, though, that in the case you speak about—the

Federal District Court threatened to hold the State in contempt if

it didn’t submit a specific desegregation plan within 60 days and

said, ‘‘The Court can draw only one conclusion. The State has as

a matter of deliberate policy decided to defy the authority of this

Court.’’ What I am driving at—

Senator ASHCROFT. Mr. Chairman, I would be glad to respond to

that, if you would like to have me do so.

Chairman LEAHY. I would. Hold on one moment and then—

Senator ASHCROFT. Thank you. I take these very seriously.

Chairman LEAHY. Go ahead. Respond to that. Respond to that.

Senator ASHCROFT. Well, you know, if the State hadn’t been

made a party to the litigation and the State is being asked to do

things to remedy the situation, I think it is important to ask the

opportunity for the State to have the kind of due process and the

protection of the law that an individual would expect.

Chairman LEAHY. So did you— Senator ASHCROFT. If a person swears to uphold the law of the

State and to become the Attorney General when the State is attacked, I think it is important to expect the Attorney General of

the State to defend the State.

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Now, over time, it might be that if there had been a different

structure, something different would have happened.

Chairman LEAHY. Did you consider—and this, you actually can

answer yes or no—did you consider the District Court was fair in

suggesting that you on behalf of the State of Missouri was—that

you were basically dragging your feet? Do you feel that was fair?

Senator ASHCROFT. I think it is unfair to characterize a person

as being uncooperative if they are asked to indemnify a situation

when there was no opportunity for them to originally be a party

to the lawsuit—

Chairman LEAHY. So you have found—

Senator ASHCROFT [continuing]. And if they weren’t in a position

to defend themselves. That would be unfair.

Chairman LEAHY. So you found the criticism of you by the court

to be unfair.

Senator ASHCROFT. Frankly, I thought the ruling by the court

that the State would have to pay when there was no showing of

a State violation to be unfair.

Chairman LEAHY. But—thank you, but now my question is, do

you feel that the Court’s criticism of you in your role as Attorney

General was unfair?

Senator ASHCROFT. Well, would you mind—this is 20-some years

ago.

Chairman LEAHY. ‘‘The court can draw only one conclusion: the

State has as a matter of deliberate policy decided to defy the authority of this court.’’ Would you consider that unfair?

Senator ASHCROFT. Yes.

Chairman LEAHY. Thank you.

Now, on Dr. David Satcher, you opposed his nomination to be our

Surgeon General, even though the Senate eventually approved him.

In your speech, you said Dr. Satcher says he has a mainstream approach, he is going to pursue consensus, but then you went on to

say that you didn’t believe that. You told the Senate that he was

a person of incredibly strong medical credentials in terms of his expertise and his capacity, but you said the United States has participated in confirming nominations and ratifying proposals without

looking carefully at the ethics involved or the guise of being challenged. So your opposition to Dr. Satcher by your own statement

was not based on his professional qualifications. Indeed, it is fair

to say that applying an Ashcroft standard, you were articulating as

a U.S. Senator that you were going to oppose a nominee whom you

believed to be ‘‘out of step with the mainstream of America,’’ to use

the words you used in your speech.

Senator ASHCROFT. Mr. Chairman, I am pleased to have the answer to—the opportunity to express my concerns here.

Dr. David Satcher supported a number of activities that I

thought were inconsistent with the ethical obligations of a medical

doctor and physician, particularly the Surgeon General, because I

think the Surgeon General is an individual to whom America must

look for guidance in terms of not just technical expertise, but the

kind of ethics that ought to accompany people who have life-anddeath decisionmaking in their hands. We all know how important

the medical profession is.

99

Chairman LEAHY. And you disagreed with those, his ethics and

values in that?

Senator ASHCROFT. For example, he supported an AIDS study on

pregnant women in Africa where some patients were given placebos, even though a treatment existed to limit transmission of AIDS

from the mother to the child.

This would not be—in my understanding, this would not be an

acceptable—this would not be an acceptable strategy for a study in

the United States, but he was willing to support the study under

those terms in Africa.

Chairman LEAHY. So— Senator ASHCROFT. That was a matter of deep concern to me.

Let me, with all—if I might.

Chairman LEAHY. Sure.

Senator ASHCROFT. He lobbied Congress to continue an anonymous study testing newborn infants’ blood for the AIDS virus without informing the mother if the test was positive.

Now, I have real problems with a situation where someone wants

to be the Surgeon General of the United States, wants to learn

about whether or not there is AIDS present in a medical situation

and not tell the people involved about the AIDS virus. This is a

matter of deep concern to me.

The idea of sending fatally infected babies home with their unwitting mothers, even after a treatment had been identified for

AIDS, to me was an idea that was unacceptable for an individual

who wanted to be the leader in terms of the medical community

and a role model in the United States. It was on those grounds

that I made the decision.

Now, it’s my decision, and I am not trying to duck responsibility

for the decision, but those are the facts as I understood them and

that is the reason I made the decision.

Chairman LEAHY. So it would be fair to say you disagreed with

his ethical choices and his values, and you thought you should vote

against him because of that.

Senator ASHCROFT. I think it is fair to say that I believed he violated the ethical values that are characteristic— Chairman LEAHY. I am not trying to parse words. I just want to

make sure I understand— Senator ASHCROFT. It was a shortfall in his— Chairman LEAHY [continuing]. Particularly the Ashcroft standard.

Senator ASHCROFT [continuing]. Adherence to ethical values of

the American medical community that I think were—

Chairman LEAHY. And because you disagreed with what you saw

as his ethics and values, you voted against him. I am not trying

to place words in your mouth. I want to make sure I understand.

Senator ASHCROFT. Well, then maybe—

Chairman LEAHY. I am trying to give you the fairest—

Senator ASHCROFT. Well, maybe if you would let me state my

words, then you don’t have to worry— Chairman LEAHY. Right.

Senator ASHCROFT [continuing]. About placing words in my

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able in the United States was an ethical lapse that was very important.

I second believed his willingness to send AIDS-infected babies

home with their mothers without telling their mothers about the

infection of the children was another ethical problem that was very

serious.

Based on both standards, which I believe are less than acceptable standards in the medical community in this country, I voted

against him.

Chairman LEAHY. That is what I was trying to get you to say.

Thank you.

Senator ASHCROFT. I’m sorry.

Chairman LEAHY. Maybe we were speaking past each other, but

thank you.

Senator Hatch?

Senator HATCH. Well, thank you.

Senator Ashcroft, the principal argument raised against your

nomination by some people is because of your firmly held personal

beliefs which happen not to be consistent with the views of the

abortion rights groups, the People for the American Way, and other

similar interest groups, that you will not enforce the laws of the

land as Attorney General. That seems to be the argument.

Now, your record, however, which the special interest groups

seem to ignore, seems to provide clear evidence to the contrary. For

example, as Attorney General of the State of Missouri, you repeatedly issued legal opinions regarding how a particular statute

should be interpreted and enforced. Time and again, Senator, your

record reflects your dedication to enforcing the law regardless of

your particular views in areas like the environment, abortion, guns,

religion, and race.

Let me give just a couple of examples, and you gave some other

examples in your opening remarks.

You issued an opinion in 1981 that the Missouri Division of

Health could not release information to the public on the number

of abortions performed by particular hospitals. You determined

that the State legislature made clear its intent that such reports

remain confidential and be used only for statistical purposes.

You also determined that in order to protect the patient client

privilege, access to health data maintained by the Division of

Health could only be subject to review by public health officers,

something that people in the right-to-life community disagreed

with you on. That is correct, isn’t it?

Senator ASHCROFT. It is correct.

Senator HATCH. You also, in Attorney General Opinion No. 50—

I am just going to mention two. There are all kinds of these.

Senator ASHCROFT. Well, don’t ask me to quote them.

Senator HATCH. I won’t ask you to quote them.

Senator ASHCROFT. We had about 800 or more.

Senator HATCH. Let me see what I can do. In Attorney General

Opinion No. 50, dated March 2, 1977, Attorney General Ashcroft

issued an opinion which interpreted State law to prohibit prosecuting attorneys from carrying concealed weapons even while engaged

in the discharge of their official duties. Attorney General Ashcroft

reached this opinion despite the fact that some prosecuting attorVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00114 Fmt 6633 Sfmt 6602 C:\HEARINGS\76342A.001 SJUD4 PsN: SJUD4
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neys conducted their own investigations and as a result faced dangerous situations. That is true, too, isn’t it?

Senator ASHCROFT. Yes, sir, it is true. And it may not have been

my personal judgment that their safety was best regarded by that,

but the law was—

Senator HATCH. That is what the law said, and so you enforced

it. I have to admit I don’t agree with that law either. They ought

to be able to protect themselves.

I could go on and on with further examples, but I want to hear

from you. The special interest groups who have sharply attacked

you seem to ignore these instances where you have interpreted the

laws as written despite your personal beliefs.

Now, if confirmed as Attorney General of the United States, will

you enforce the laws of this land irrespective of your personal beliefs?

Senator ASHCROFT. I will. And I think I should clarify that just

a little bit. My personal belief, my primary personal belief is that

the law is supreme, that I don’t place myself above the law, and

I shouldn’t place myself above the law. So it would violate my beliefs to do it.

So I spent 24 years in elective public offices as—the auditor’s office in Missouri is really a compliance office. We audit not only for

financial integrity, but for compliance with legal mandates to the

agencies. I spent 2 years there as State auditor and then the 8

years as Attorney General and 8 years as Governor, and there are

other things you do as Governor, but you also are a law enforcement individual. The executive branch does that. And most of my

time in government has been in enforcement. And I’m pleased to

say that I have enforced the law faithfully to the best of my ability

in those settings.

Senator HATCH. With regard to Mr. Bill Lann Lee, I happen to

like Mr. Lee, but I voted against him, not because I wouldn’t have

supported him for any number of other positions—I would have because he is a sincerely dedicated, decent, honorable man. But when

he appeared before the Committee, I have to say that one of the

problems that I had at that particular time was that I was concerned that, because of his prior background, he would use consent

decrees to force consent decrees on local municipalities, cities, counties, and other governments by bringing very expensive lawsuits

that would cost millions of dollars to defend where they would have

to cave in to consent decrees that would require quotas that were

really wrong under the Adarand and other decisions by the Supreme Court.

I can remember that while I have the highest personal regard for

Mr. Lee’s accomplishments when he was in the private sector, I

was extremely concerned about his interpretation of civil rights

laws. His lifetime work was devoted to preserving constitutionally

suspect, race-conscious public policies that sort and divide citizens

by race.

For instance, when Mr. Lee appeared before the Committee, he

interpreted the Adarand v. Pena case to mean that racial preferences are permitted if ‘‘conducted in a limited and measured

manner.’’

102

Now, as I noted on the floor of the Senate, his statement misstated the Court’s fundamental holding in such programs that are

presumptively unconstitutional. And, unfortunately, I have to say

that his recent record indicates that is what he has been doing to

a large degree, or at least to a significant degree in his position in

the Justice Department.

So there was a legitimate reason to vote against Bill Lann Lee,

even though I think all of us would admit he is a nice person and

probably could fill any number of other positions in government.

I suspect that that is the reason you voted against him.

Senator ASHCROFT. Well— Senator HATCH. And I can see why others might have voted for

him. But the fact is I had to do what I thought was the law. What

about you?

Senator ASHCROFT. Well, frankly, I struggled to say that perhaps

earlier, not as effectively as you have just said it or as you said it

on the floor. When he indicated that the test of whether a program

would survive strict scrutiny was that it be limited and measured,

he really basically was expanding the test substantially.

The district court on remand in that case said, and I quote, ‘‘It

is difficult to envisage a race-based classification that is narrowly

tailored.’’ But Mr. Lee, when asked if he could identify a single racial preference program that was constitutionally suspect, could

only identify one out of all the programs. I think the key, though,

is the material that you presented at the time, which I found persuasive, and his statement of a test for programs, which was just

monumentally different than the test provided for by the Court in

the Adarand case.

Senator HATCH. Well, it has been mentioned that you oppose certain aspects of the Federal court decrees surrounding the desegregation of schools in Kansas City. Well, Senator Ashcroft, isn’t it

true that in Missouri v. Jenkins, which is the poster child case for

what many think is judicial activism, that the Supreme Court

found that the district court had exceeded its authority by ordering

remedies beyond its power? Was your position not vindicated by

the Supreme Court after some 18 years of litigation?

Senator ASHCROFT. Well, very frankly, the Jenkins case was a 5– 4 case.

Senator HATCH. Right.

Senator ASHCROFT. And it was a case in which the judge imposing a tax was upheld in imposing the tax.

Senator HATCH. It wasn’t the Congress that imposed the tax. It

was the judge.

Senator ASHCROFT. Nor was it the State legislature or the city

council.

Senator HATCH. That is right. So it was a legitimate argument.

Senator ASHCROFT. Obviously it’s a legitimate argument, and I

hope these hearings will allow me to clarify the fact that a State

Attorney General has a responsibility to defend the State when it

is asked by other parties to open its treasury to fund one thing or

another. The situation in Kansas City, at the order of the Federal

district court judge, was tragic in terms of the amount of money

spent, and really, frankly, this hadn’t become—this really wasn’t

that much of a partisan issue. It became clear that this was not

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helping children, but it was a very, very serious diversion of the

State’s resources in a way which made difficult the achievement of

other objectives.

For example, busing had strong opponents in Missouri, Democrat

and Republican, black and white. Freeman Bosley, St. Louis’ first

African-American mayor, opposed forced busing, as did Democrat

State Attorney General Jay Nixon. This forced busing that was opposed was not, on their part or on my part, an opposition to integration. It was an opposition to a counter-productive, inappropriate

effort to impose on the State transportation of students to and from

at great expense and at little benefit educationally to the students.

Senator HATCH. Well, I have heard some arguments against you

because of your firmly held religious beliefs. In fact, I have seen it

over and over in the press in this country. When Vice President

Gore selected our esteemed colleague, Joseph Lieberman, to be his

running mate, many individuals and organizations supported that

choice and applauded Senator Lieberman for his strong religious

beliefs. I have to say I felt the same way.

Unfortunately, many left-wing groups have not been as supportive of your religious beliefs and convictions, almost like it is OK for

a liberal but it is not OK for somebody who is conservative.

Personally, I as a Christian am very unsettled by the different

treatment accorded you and Senator Lieberman. I think it is

wrong.

Now, the job of the Attorney General of the United States is an

extremely important job, and it is to enforce the laws enacted by

Congress. The only issue for me is the manner in which you execute the job or will execute the job. It doesn’t matter to me whether

you are a Christian, Muslim, Buddhist, whatever, or an atheist or

agnostic. I am sure that goes—I hope I am sure that goes to the

rest of our fellow Senators. In fact, the Constitution of the United

States specifically forbids religious qualifications for office.

Now, having gone through that type of, I think, offensive criticism, which is continuing right up to today, is there anything in

your religious beliefs that would impair you from faithfully and

fully fulfilling your responsibilities as Attorney General of the

United States?

Senator ASHCROFT. Well, I don’t believe it’s appropriate to have

a test based on one’s religion for a job. I think Article V of the Constitution makes that clear.

In examining my understanding and my commitment and my

faith heritage, I’d have to say that my faith heritage compels me

to enforce the law and abide by the law rather than to violate the

law. And if in some measure somehow I were to encounter a situation where the two came into conflict so that I could not respond

to this faith heritage which requires me to enforce the law, then

I would have to resign. I do not believe that to be the case.

May I just say a word about this? America has struggled in this

respect for quite some time, and people who come from different religious and faith perspectives have emerged at one time and another, and when they have, there have been questions about this.

This is not new.

Before I was old enough to vote, but when I was old enough to

be very active in watching elections in 1960, the first person beVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00117 Fmt 6633 Sfmt 6602 C:\HEARINGS\76342A.001 SJUD4 PsN: SJUD4
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came President of the United States from a Catholic perspective.

In my part of the country, there were people who thought he will

not be free, he will have to do whatever the Pope tells him to do,

he will be a client of a foreign individual. You know, I heard that

talk.

But America got by that talk, and I think it’s good that we did.

And my own view is that, yes, people won’t understand different

kinds of individuals from time to time. Some people—most people

hailed, as I did, the elevation to national candidate status of my

college classmate and former colleague here in the U.S. Senate, Joe

Lieberman. We need more people like Joe Lieberman in public office, not fewer people like Joe Lieberman in public office.

But I was the first person from my faith denomination to be

elected to a statewide public office as Attorney General, and I was

the first Governor ever from my denomination. I was the first Senator from my denomination. I understand these things, and I think

this is something we work our way through as Americans, and

we’re going to come to an understanding that well-intentioned people of good faith, when they raise their hand and take an oath to

support the Constitution and enforce the law, they do it.

And as I look back across America and this heritage—and it’s

been focused on different kinds of people at different times—I

frankly don’t see that we’ve been—our faith has been misplaced. As

I look across, when the President, we had our first Catholic President, we didn’t suffer.

You know, so I think this is something we’re going to work—we

will work our way through.

Senator HATCH. My time is just about up. Let me just ask you

one last question. You have publicly stated your agreement with

the law of Adarand which states that all racial classifications made

by the government must be able to withstand strict scrutiny. You

were also a sponsor of the Civil Rights Act of 1997. This Civil

Rights Act basically seeks to implement the Supreme Court’s holding in Adarand with respect to Federal racial classifications. The

Civil Rights Act of 1997 does state that affirmative action such as

encouraging qualified women and minorities to apply for government contracts and employment would not be affected.

Now, what sort of affirmative action programs would you support

if confirmed? And what would be your plans for the Civil Rights

Division? My time is up.

Senator ASHCROFT. Very frankly, there are lots of ways that are

acceptable, and some have been working their way through the

courts and I think will be sustained. The President-elect of the

United States has identified a series of things that he calls affirmative access. I think those are good ideas. They have been in place

now in Texas and in California and in Florida and are making

their way in the educational system where access is so very important.

We can expand the invitation for people to participate aggressively so that no one is denied the capacity to participate simply

because they didn’t know about the opportunities. We can work on

education, which is the best way for people to have access to

achievement, a wide variety of things. We can size government opportunities so that people can bid who don’t have the mega

105

strength of the big old-time contractors but some new entrants into

the marketplace. These are all policy decisions that I believe this

next administration, President-elect Bush is eager to consider. And

certainly the affirmative access that he’s described is something

that I think the entire country would be well served to work on.

Senator HATCH. Thank you, Senator Ashcroft.

Chairman LEAHY. I just would not want to leave one of the questions of my friend from Utah give the wrong impression to the people here. I just want to make it very clear. Have you heard any

Senator, Republican or Democrat, suggest that there should be a

religious test on your confirmation?

Senator ASHCROFT. No Senator has said I will test you, but a

number of Senators have said, Will your religion keep you from

being able to perform your duties in office?

Chairman LEAHY. I’m amazed at that.

Senator ASHCROFT. Pardon?

Chairman LEAHY. I said I’m amazed at that.

Senator ASHCROFT. Well, I don’t—I understand. And I accept the

opportunity to say with clarity that not only will I represent that

I will enforce the law, but there is some record here of my 2 years

as auditor, 8 years as Attorney General, 8 years in the Governor’s

office, that when the law is clear and decided, that I enforce the

law.

Chairman LEAHY. Senator Kennedy?

Senator KENNEDY. Thank you very much, Mr. Chairman.

If we could, Senator Ashcroft, come back to the St. Louis situation, let me just spell out very briefly, as you remember, but just

so that we have the common understanding. In the 1970’s, more

than 20 years after the Brown v. Board of Education, St. Louis still

maintained a segregated school system. The Court stepped in and

ruled that the State of Missouri and the St. Louis School Board

were jointly responsible for violating the Constitution by creating

and maintaining segregated and grossly unequal schools. The

Court ruled that the State had maintained an elaborate set of laws

to enforce segregation. The State law even forced black children

who lived in the suburbs and in white city neighborhoods to be

bused to all-black inner-city schools. According to the Court, the

State had completely abdicated its constitutional duty to desegregate the schools.

You disagreed with that finding, but despite your repeated appeals, requests for injunctions, and three denials of review by the

Supreme Court over a 4-year period, the final ruling of the courts

was not changed. So you had your chance in the courts to make

the case that you’ve just made here and the courts rejected it each

time.

Now, let me just continue, and others will get—

Senator ASHCROFT. It’s your hearing, Senator.

Senator KENNEDY. Now, the city of St. Louis, its schools, and

surrounding 23 county districts all accepted the ruling. They negotiated a model desegregation plan relying on voluntary public

school choice. Black students from city schools could volunteer to

transfer to white suburban schools. White suburban students

would have the opportunity to transfer to magnet schools run by

the city. In fact, the plan has been a lifeline for tens of thousands

106

of students with graduation rates that are consistently twice as

high for the transfer students, more of them going on to college and

other 11,000 students are still using it today—including about 900

suburban students in the city magnet schools.

Now, given the voluntary nature of the desegregation plan and

the fact that the city and county school districts all agreed to it,

how do you justify your relentless opposition to voluntary school

desegregation and sort your scorched-earth legal strategy to try to

block it?

Senator ASHCROFT. Senator Kennedy, first of all, the litany of

charges that were made about the State’s activities included a

rather loose definition of things that the State had done prior to

Brown v. Board of Education. Virtually none of the offensive activities described in what you charged happened in the State after

Brown v. Board of Education. And as a matter of fact, most of

them had been eliminated far before Brown v. Board of Education. Second, in saying that the city maintained a segregated school

system into the 1970’s is simply a way of saying that after Brown

v. Board of Education, when citizens started to flee the city and

move to the county—and you’ll know that St. Louis for a number

of decades now has been a place that has lost more population than

virtually any other city as people moved into the county—the

schools, as people changed their location, began to be more intensely segregated. That was after the rules of segregation had

been lifted, and it was not a consequence of any State activity.

Then I would just simply say that I think it’s unfair to call the

program totally voluntary and to suggest that we opposed a voluntary program, when the thing was that the State was going to

have to pay for everything people volunteered to do.

Now, the situation was basically this: The county school districts

agreed with the city school districts that they could confess judgment and get a lot of money from the State of Missouri by saying

if we’ll just say that we’ll do this voluntary plan, the State will

have to pay for the situation. So you had a situation something like

this, and I don’t have all the material that you all have, but let me

try and re-create it from my memory.

Senator KENNEDY. I want to try and—I want to give you a fair

chance, but we— Senator ASHCROFT. Well, you— Senator KENNEDY. Go ahead.

Senator ASHCROFT. Thank you for your fairness, because when

the machine gun of charges comes out, I want to try and respond

to all of the lead.

Senator KENNEDY. Earlier, you said the State wasn’t involved.

Well, now let me just read to you, in 1980, in Adams v. United

States, the city board and the State were held jointly responsible

for maintaining a segregated school system. My question is: At

what point, Senator Ashcroft, were you going to say or do something about the fact that those kids were going to lousy schools?

You were there as Attorney General, you were there as Governor,

and you did virtually nothing about it. And a new Governor came

in, Mel Carnahan, and resolved that issue. You used every kind of

device to oppose it. The Economist magazine, which is not a liberal

magazine, said, ‘‘The campaign’’—which you were involved in

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‘‘quickly degenerated in 1984’’—at a time when this issue was still

before you—‘‘into a contest over who was most opposed to the plan

for voluntary racial desegregation of St. Louis’ Schools. Mr.

McNary claimed that Mr. Ashcroft had not done enough to defeat

the plan in court. Mr. Ashcroft countered that Mr. McNary was a

closet supporter of racial integration. Both ran openly bigoted advertisements on television.’’ Professor Gary Orfield, a consultant for the court in the St. Louis

case and a leading expert on desegregation who frequency testifies

against desegregation plans described you as being ‘‘an unrelenting

opponent of doing anything in St. Louis.’’ He said that you ‘‘had no

positive vision, constantly stirred up racial divisions over this question.’’ Finally, rather than provide the conciliatory leadership, once you

were governor, a 1990 judicial order described the recent State’s filings as ‘‘extremely antagonistic’’ and said the State was ‘‘ignoring

the real objectives of this case—a better education for city students—to personally embark on a litigious pursuit of righteousness.

Now, that’s a pretty tough record. Where in your list of priorities

were the rights and the interests of those black students who were

trying to get a decent education? We’ve just heard from you about

the cost, and how you had a responsibility as an Attorney General

to protect the taxpayer. What about the interests of those black

students and the fact that those courts repeatedly, time and time

again, said that you failed to even offer an alternative? Did you

offer an alternative?

Senator ASHCROFT. Now may I respond?

Senator KENNEDY. Sure.

Senator ASHCROFT. Thank you. In all of the cases where the

court made an order, I followed the order, both as Attorney General

and as Governor. It was my judgment that when the law settled

and spoken that the law should be obeyed.

At one point I had to detail the Deputy Attorney General of the

State of Missouri to the State treasurer’s office in order to urge the

State treasurer to write the check, and the treasurer wrote the

check. His name has been used in this hearing, but I won’t use it.

But it was because I explained to him that when the court spoke,

the State had to respond and obey the law.

Now, the framework for the system was that the State was to

pay the city for the students who left and the State was to pay

again in the county for the students who had left and gone out

there. It was not a way to integrate the city schools. The facts

which you specify show that the brightest students left the city,

leaving the students in those schools behind with fewer people aspiring to college graduation and going on further for education, not

improving those schools.

I’m pleased to respond to your question about my priority for

education. During my time as Governor, funding for education in

the State of Missouri went up about 70 percent. The vast majority

of all State resources that were new and available went to education because I believe in education.

In Missouri v. Jenkins, the case in Kansas City—

Senator KENNEDY. Could we get on—I don’t think we’ve got—

Senator HATCH. Let him answer the question.

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Senator KENNEDY. The question wasn’t about Kansas City. I

asked about St. Louis.

Senator ASHCROFT. Fine.

Senator KENNEDY. But if he wants to talk about Kansas City— Senator ASHCROFT. I would like to talk about Kansas City, but

it’s not—I’d rather answer your question than talk about Kansas

City.

Senator KENNEDY. That isn’t the question, but if you want to

talk about it— Senator ASHCROFT. Well, I’ll just give you an idea— Senator SESSIONS. You characterized his interest in education,

Senator Kennedy— Senator KENNEDY. Well, that isn’t the— Senator SESSIONS. You suggested he didn’t care— Senator HATCH. You’re accusing him of not— Chairman LEAHY. Gentlemen, gentlemen.

Senator HATCH. Let him answer the question.

Chairman LEAHY. First I would note that whatever questions are

asked, if the witness feels that he’s not given time to answer all

the questions, he will be given time, as will Senators be given time

to do follow-up questions.

Senator KENNEDY. Well, I had one other area to cover, but whatever you want to do, John.

Senator ASHCROFT. Well, you’re the Senator.

Senator KENNEDY. Well, you’re the— Senator ASHCROFT. You know, I look forward to working with

this Committee upon confirmation. I do. And I don’t know when

there was last an Attorney General that had previously served as

a member of this Committee. And, frankly, I think we can work together, and I want to, and I don’t want any rancor to characterize

our relationship. And I’m very pleased to defer.

Senator KENNEDY. Let me just go on to the questions of voter

registration and your vetoes on voter registration. We talked about

this. You know, obviously we have learned in this Presidential

campaign every vote does count, and obviously the procedures in

Florida and across the Nation were plagued by inequities that often

resulted in disenfranchisement of poor minorities. The Justice Department is conducting an investigation into whether there were

any voting irregularities that occurred in Florida violating the Federal Voting Rights Act. So, if confirmed, you will have a responsibility for completing the investigation and bringing suit if any

violations are found.

Now, considering your actions as Governor of Missouri, I’m concerned about where you might go with this. Now, let me mention

this. As Governor, you appointed the election boards in both St.

Louis County and St. Louis City. The County, which surrounds

much of the city is relatively affluent, 86 percent white, and votes

heavily Republican. The city is poorer and 48 percent black, and

votes heavily Democratic.

Like other communities across the State, the county election

board had a standard procedure for training volunteers from nonpartisan groups like the League of Women Voters to assist in voter

registration. And according to press reports, the county trained as

many as 1,500 volunteers. But the number of trained volunteers in

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the city was zero, because your appointed city board refused to follow the standard practice used in the county and throughout the

rest of the State. As a result the county had a voter registration

rate higher than the State average and considerably higher than

the city.

Concerned about this obvious disparity, the State legislature

passed bills in 1988 and 1989 to require the city to use the same

training procedures as the county and the rest of the State. On

both occasions, you vetoed these bills. In 1988, you claimed it was

unfair to impose this procedure just on the city of St Louis. In

1989, the legislature responded by passing a bill applying the procedure to the entire State. But you vetoed it again. And you cited

concerns about voter fraud, even though the Republican director of

elections in the county was quoted as saying, ‘‘It’s worked well

here. . .I don’t know why it wouldn’t also work well in the city.’’ That makes sense. The only difference between the county and

city is that the city is poorer, more heavily African-American and

votes Democratic.

Rather than working to expand the right to vote, you and your

appointed election board in the city did all you could to block increased voter registration in the city. The results of your

stonewalling tactics are clear. By the time you left the Governor’s

mansion, the city of St. Louis had the lowest voting registration

rate in the State, 15 percent lower than the rate in St. Louis County. Eight years later, thanks to the passage of the Federal Motor

voter law and the efforts of the late Governor Carnahan, the voter

registration rate in St. Louis city has increased dramatically.

Why did you feel that you didn’t have to provide the same kind

of registrars in the city as you did in the county and as they did

in the rest of the State, particularly when groups indicated their

willingness to provide those services?

Senator ASHCROFT. Well, thank you for the question, Senator

Kennedy, and let me just say that I am concerned that all Americans have the opportunity to vote. I’m committed to the integrity

of the ballot box. I know what it means to individuals who are deprived of the opportunity to vote, and I know what it means to candidates who have been the subject of elections where the integrity

of the ballot box has been violated. I have personal experience in

that respect.

I voted and vetoed—pardon me, I voted a number of bills as Governor, and, frankly, I don’t say that I can remember all the details

of all of them. Accordingly, I reviewed my veto message and recalled that I was urged to veto these bills by the responsible local

election officials. I also appeared to anticipate the Supreme Court’s

recent decision as I expressed a concern that voting procedures be

unified statewide. I would like to read my relatively short veto

statements from the two relevant bills, and these are statements

which I made when I was Governor, and it’s quite some time— Senator KENNEDY. And if you could elaborate on the local officials who urged you to veto them and the reason why they did that.

If you could add that, I would appreciate it.

Senator ASHCROFT. Conference Committee substitute for House

bill 1333, I believe it is, is vetoed and not approved for the following reasons: The Comprehensive Election Act of 1977 was intended

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to simplify, clarify, and harmonize the laws governing elections.

Section 115.003 Revised Statues of Missouri 1988, the General Assembly has directed that the Act be construed and applied so as to

accomplish this purpose: The few amendments to this law since

1977 have been enacted only as necessary to further statewide policy goals. Election bills approved by the General Assembly this

year continue this trend by standardizing voter registration and

other election procedures.

Conference Committee substitute for House bill 1333 stands in

marked contrast to the overall trend of our election laws. It would

single out one election authority and mandate for that one authority that certain procedures be followed. I see no compelling reason

to impose this special requirement on the St. Louis Election Board.

There are more than 150 permanent registrationsites spread

throughout the city of St. Louis. Each of these sites is manned by

bipartisan, board-appointed registrars, and is in a public facility.

Before every election, the board opens an additional 84 special

registrationsites manned by bipartisan registration teams at places

such as shopping centers, churches, and union halls. The success

of the St. Louis Election Board in promoting voter registration is

evidenced by the fact that the city has a registration rate of 73 percent compared to the national average of 69 percent.

I join with the proponents of this bill in encouraging the St.

Louis Board of Election Commissioners to review its present policy

and to work to ensure that every resident has a clear opportunity

to register to vote. But even as we work to increase voter registration, we must preserve the right of the voters to participate in fair

elections.

The bipartisan St. Louis County Board of Election Commissioners, St. Louis Board of Aldermen President Tom Villa, and St.

Louis Circuit Attorney George Peach have expressed concerns

about the impact of this bill on the democratic process and urged

me to veto it.

I might add that Tom Villa was a noted Democratic leader in the

State of Missouri from the city of St. Louis. The Villa family had

a historic sort of reputation. I don’t know whether some of you

close to St. Louis will remember that. St. Louis Circuit Attorney

George Peach was a Democrat who was the prosecutor in the St.

Louis area. So we had—a bipartisan county election board said this

is not good, this is not right. You had the Democrat circuit attorney

saying: I have reservations about this, this shouldn’t be done. You

have the St. Louis Board of Aldermen President, an almost totally

Democrat organization—the Board of Aldermen, city of St. Louis,

is about as a Democrat as the Democratic National Committee.

They all urged me to veto this bill.

Now, I do think that when you look at the recent Supreme Court

rulings requiring—pushing us more toward uniformity, that it’s important to understand that creating and carving out special responsibilities in a variety of settings is something we shouldn’t do. The

people of St. Louis, I went on to say, have an absolute and fundamental right to open, fair, and non-partisan elections. My veto

of this bill today will protect that right. For the above and foregoing reasons, Conference Committee substitute for House bill

1333 is returned and not approved.

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The second veto message—I’d be happy to read another one.

Senator KENNEDY. Mr. Chairman, it’s not necessary.

Senator ASHCROFT. This is— Senator KENNEDY. Senator, if I could just add and get your response. You vetoed it because it was special legislation for St.

Louis. Then the next year the legislature said, OK, because you

haven’t done anything in St. Louis, we’ll apply it statewide. And

then you vetoed that as well. That’s what I can’t understand. I can

see you vetoing, it saying that it was special legislation, so we

won’t do it for St. Louis because it’s special. Now you’ve just mentioned the Supreme Court wants uniformity, the State legislature

said, OK, let’s get uniformity, and you vetoed that as well. If you

could address that.

Senator ASHCROFT. Yes. Thank you very much. It just takes a lot

longer to answer these charges than it does to make them, and I

apologize for that.

[Laughter.]

Chairman LEAHY. Gentlemen, just a moment. I want him to answer that, but I also point out the witness said that sometimes the

questions come in a machine-gun fashion, I think was his expression. I can assure you the Chair will make sure that you are given

time to answer all the questions, and when you review the transcript, if there’s further answers you want, you will be given the

time to respond to that. And, of course, the Senator asking the

question will get follow-up. But I don’t want any implication being

given that you would not have a chance to answer all the questions

asked.

Senator ASHCROFT. I appreciate that very much, Mr. Chairman,

and I apologize if any of my remarks would indicate that you

wouldn’t fairly give me the opportunity to respond.

This is the veto message from the next year: House Committee

substitute for House bill 200 is vetoed and not approved for the following reasons: The bill would require election authorities to permit, quote, any recognized non-partisan civic organization, political,

fraternal, religious, or service organization interested in voter registration and education to conduct registration at any reasonable

place selected by the organization. The election authority is required to have a deputy registration official present at the place.

The bill provides that these deputies may be volunteers. I encourage these deputies may be volunteers. I encourage all qualified

Missourians to register and vote in elections. I also encourage election authorities to improve voter registration efforts by keeping

registration offices open for longer hours and by conducting registration drives at special registrationsites.

As I noted last year in St. Louis, the success of the St. Louis election board is apparent from the fact that the city has a registration

rate of 73 percent compared to the national average of 69 percent.

Efforts to promote voter registration must be balanced with the

need to ensure that the voters participate in fair elections. This bill

would tie the hands of election authorities and give private organizations a virtually unbridled right to add names to State voter registration roles.

As noted in a St. Louis Post Dispatch editorial, there is no overwhelming reason to allow an individual group of any political perVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00125 Fmt 6633 Sfmt 6602 C:\HEARINGS\76342A.001 SJUD4 PsN: SJUD4
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suasion to register people. With the numerous instances of voter

fraud that the city has experienced in recent years, election officials should be cautious about their procedures.

The registration apparatus must be available to everyone, but it

also must be protected jealously to prevent its abuse.

St. Louis Post Dispatch, ‘‘Keeping Registration Fair.’’ Election

authorities are free to participate. August 28th. This was an editorial. I don’t believe this editorial was about this specific measure.

I don’t want to create that impression. If it is about it, it would be

fine.

Election authorities are free to participate with private organizations now to conduct voter registration. Given the overriding need

to promote honesty and integrity in the process, I see no compelling

reason to require that they do so in every instance in which a request is made. For the above and foregoing reasons, House Committee substitute for House bill 200 is returned and not approved.

Respectfully submitted, signed, John Ashcroft, Governor.

Chairman LEAHY. Senator Thurmond, your turn.

Senator THURMOND. When outgoing Attorney General Janet

Reno appeared before this Committee for confirmation, I expressed

concerns about her opposition to the death penalty, but I still supported her. Those views did not prevent her from being confirmed.

Do you think most Attorneys General have had to enforce some

law that they did not personally support?

Senator ASHCROFT. Senator, I am virtually sure that everyone

who has served in the Attorney General’s office has had to impose

or enforce laws that he or she would not personally support. The

definition of ‘‘personal support’’ is almost inconsistent with laws because laws are compromises of what people decide to do in the legislative process where we have a give-and-take in terms of what is

finally achieved. So very seldom is there any law that is identical

to the way any of us would write it completely.

Law enforcement officers uniformly, not just those in uniform,

but those uniformly across the board, I think always have to enforce laws that they wouldn’t personally have written.

Senator THURMOND. During much of the Clinton administration,

a number of gun prosecutions declined. For example, Project Trigger Lock prosecutions for using a gun to commit a felony dropped

46 percent from 1992 to 1998. As Attorney General, will you expand successful gun prosecution initiatives like Project Exile and

make enforcing gun laws a priority?

Senator ASHCROFT. I would hope that we would be able to more

effectively enforce the laws relating to guns.

From the data that I have seen out of Project Exile and other efforts around the country, we have a far greater and more dramatic

impact on violent crime by enforcing gun laws than we do in many

other efforts that we make to try and improve the personal security

and safety of our citizens.

As a matter of fact, in the last couple of years, I have sought additional appropriations when a member of the Senate to fund a

similar program in St. Louis, a program which I think is entitled

Project Cease Fire, but it is similarly a focus on saying to those

who use guns in the commission of a crime, you can’t do that with

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impunity, and we will make sure that if you use a gun in the commission of a crime, you will regret it.

In Project Exile, the remediation in the rates of crime was very,

very dramatic, and it seems to be a promising program that ought

to be explored further. I think enforcement of gun laws holds great

promise.

And incidentally, I might add that as the Attorney General of the

United States, obviously I would be interested in advancing the

agenda of the President, when possible, and he has stated clearly

his intention to have more vigorous and energetic prosecution of

gun crime.

Senator THURMOND. As a Senator, you were very dedicated to the

war on drugs. For example, you successfully led the fight to pass

major drug legislation to combat the methamphetamine epidemic.

As Attorney General, will you continue that commitment to fighting illegal drugs?

Senator ASHCROFT. Well, Senator, I think the illegal drugs are a

mark and a stain on America, but they are a mark against the

young people of this country that makes very difficult their success

in the future, and I would hope that I would have an opportunity

to have an energetic enforcement of the drug laws in this country

in a way which would curtail drug use, and I would hope we would

be able to lead in such a way as to make it possible for young people to look to national officials and to the kind of atmosphere we

create as one that rejects drug use.

In the methamphetamine laws, which I had the privilege of

working closely with members of this Committee on, including Senator Biden and Senator Feinstein, we did a couple of things that

were important. We took methamphetamine which people had not

taken seriously, and we put very serious penalties into the law. I

think it was important that we put penalties in the law that were

on a parity with the penalties for cocaine because too often people

had thought hat methamphetamine was not an important or challenging thing and we needed to have an opportunity to make sure

that we signaled our disapproval and the danger that these dangerous drugs really present to our young people.

Senator THURMOND. A great deal of attention is focussed on the

lives of criminals, but we do not hear as much about the rights of

victims. Nevertheless, you have been a leader for victims’ rights.

Should crime victims be a top concern for the Justice Department?

Senator ASHCROFT. Indeed, they should.

I had the privilege of being involved in signing victims’ rights

legislation in the State of Missouri, and I was eager to find a way

to have a national program for victims’ rights legislation because

too often technical problems relating to minor conflicts between the

Federal system and the State system made impossible an effective

use of the States’ victims’ rights legislation to protect the interests

of individuals who have been victims of crime.

Senator THURMOND. You have been endorsed by numerous law

enforcement organizations, including the Fraternal Order of Police,

the National Association of Chiefs of Police and the National Sheriffs’ Association. Is it important for the Attorney General to work

closely with State and local law enforcement, and including rural

law enforcement?

114

Senator ASHCROFT. Well, it certainly is important. One of the

things about methamphetamine that struck me in the State of Missouri is that it tended to be a rural drug. It wasn’t as focussed at

our city centers where drugs like cocaine were prevalent, but in the

out-state portions of Missouri, the methamphetamine production in

a variety of labs—and I am sorry to say that Missouri is second

only to California in terms of meth labs that were taken down— exploded on our State. There were two meth labs taken down in

1992. There were about a thousand taken down last year in the

State, and many more.

I talked to one county sheriff who was in what we call a collar

county, around St. Louis, where he said that his sheriffs department would take down 200 meth labs in that one county during the

year, and at the same time I met with that sheriff, there were five

or six small city police chiefs from that same county, and they said

they would break down another 100. So there you have one county

with 300 meth labs in a single year. It is a very serious problem

and it is in rural America, and our ability to provide assistance

through HIDTAs and other programs in the Justice Department

can help curtail this very serious threat.

Chairman LEAHY. I have put in the record a number of statements of others so that we could have a chance—or so the witness

can have a chance if he wishes to add to his answers to do so in

the transcript, so those who asked a question would have also a

chance to see that.

We will recess now. We will reconvene in the Senate Caucus

Room in the Russell Building, the third floor of the Russell Building tomorrow morning at 10.

Senator SESSIONS. Mr. Chairman, we have leave to file a written

statement? May I have leave to file a written statement?

Chairman LEAHY. Oh, of course. Of course. All Senators will.

We are adjourned.

[Whereupon, at 5:15 p.m., the Committee was recessed, to reconvene at 10 a.m., Wednesday, January 17, 2001.]

(115)

NOMINATION OF JOHN ASHCROFT TO BE

ATTORNEY GENERAL OF THE UNITED STATES

WEDNESDAY, JANUARY 17, 2001

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Committee met, pursuant to notice, at 10:08 a.m., in room

SR–325, Russell Senate Office Building, Hon. Patrick J. Leahy,

Chairman of the Committee, presiding.

Present: Senators Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, Durbin, Cantwell, Hatch, Thurmond, Grassley,

Specter, Kyl, DeWine, Sessions, Smith, and Brownback.

Chairman LEAHY. As those who have spent time in the Senate

know, it is sort of the luck of the draw where you end up for hearings. Today we are in the historic Senate Caucus Room, the site

of so many important Senate hearings. Hearings into the sinking

of the Titanic were held here. If you look around this room, you

will probably never see another public room anywhere in the country made like this. The McCarthy hearings, a number of hearings

of Supreme Court nominations, and others were held here.

Yesterday, we began the hearings with opening statements from

nine Republican Senators and seven Democratic Senators. We

heard from both Senators from Missouri who introduced Senator

Ashcroft and an additional Republican Senator who testified in

support of his nomination. We heard the nominee’s opening statement and his responses to the beginning round of questions.

Today when we resume, we will begin with Senator Kohl, then

go to the distinguished Senator from Iowa. We will try to conclude

these opening rounds of questions for the nominee by some time

this evening.

Now, I know that a number of Senators have a number of questions and concerns. I want to give the nominee the opportunity to

respond to each of these, and we are willing to stay as late tonight

as necessary. But it is going to take some cooperation.

I would like to conclude official witnesses today if we can. There

are a lot of shifting demands going on, some from the other side.

But I also want to make sure—there was a suggestion yesterday

by the nominee that sometimes questions come very rapidly. As I

said during the hearing yesterday, if he feels he did not have a

chance to fully answer a question, he can answer that for us, and,

of course, the Senator asking the question can do a follow-up.

He has also, as any nominee does, an opportunity to correct any

answer if he chooses to do so. For example, yesterday Senator

Ashcroft testified that the State of Missouri was not a party to the

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school desegregation litigation in St. Louis and the State had done

nothing wrong and there was no showing of a State violation. However, the State had been a party defendant in that litigation since

at least 1977, and the courts repeatedly held that the State was legally liable. The Eighth Circuit Court of Appeals noted in 1981,

‘‘The State of Missouri vigorously contends that it should have no

part in paying for the costs of integration because its action did not

violation the Constitution. This contention is wholly without merit.

We specifically recognize the causal relationship between the actions of the State of Missouri and the segregation existing in the

St. Louis school system.’’ The next year, in another appeal in that case, the Eighth Circuit

wrote that the State had substantially contributed to the segregation of public schools in St. Louis. And in yet another opinion, in

another appeal in that case, the Eighth Circuit termed the State

‘‘a primary constitutional violator’’ and noted that the State’s constitution and statutes ‘‘mandated discrimination against black St.

Louis students on the broadest possible basis.’’ Now, that is my understanding, and I would ask if there is any

disagreement with that understanding.

Senator ASHCROFT. I appreciate the opportunity to clarify the situation, which involved the discussion of both the case in St. Louis

and some of the case in Kansas City, which outlined and sort of

defined the State’s involvement in some orders regarding the funding of desegregation plans in both of those communities. And when

the State was initially ordered to do things, I argued on behalf of

the State that it could not be found legally liable for its segregation

in St. Louis because the State had not been made a party to the

litigation.

Subsequent to that time, the State was drawn into the litigation,

and, obviously, by the time we had the case of Missouri v. Jenkins, which was what happened eventually in the Kansas City situation,

the State was fully a party and obviously one of the named parties

in the Supreme Court lawsuit. And I thank the Chairman for making it possible to clarify that there was a time at which the State

became a party, but that the State was originally—

Chairman LEAHY. And you were Attorney General at that time.

Is that correct?

Senator ASHCROFT. I believe that’s correct.

Senator HATCH. I wonder if we could go to the regular order, Mr.

Chairman.

Chairman LEAHY. I just wanted to—well, the answer—

Senator HATCH. That is the answer he gave yesterday as well.

Chairman LEAHY. Yes, but I think as he pointed out, it needed

a correction, and I was trying to be fair to the nominee because the

answer was not—

Senator HATCH. I don’t think it needed a correction. I mean, it

was the answer he gave yesterday.

Chairman LEAHY. The nominee— Senator HATCH. Well, let’s just have regular order.

Chairman LEAHY. The nominee has just said he thanks me for

the chance to correct it, but go ahead, Senator Kohl.

Senator ASHCROFT. Sir, in all due respect, I thank you for the opportunity to clarify.

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Chairman LEAHY. Thank you.

Senator Kohl?

Senator KOHL. Thank you, Senator Leahy.

Senator Ashcroft, I believe that we fail the Senate and our constituents when put politics above policy and bitterness above compromise. In an evenly divided Senate, we have a terrific opportunity to give the public faith in democratic institutions. It is not

clear whether or not you fully agree.

Yesterday, Senator Leahy read a 1998 quotation of yours, ‘‘There

are voices in the Republican Party today who preach pragmatism,

who champion conciliation, and who counsel compromise. I stand

here today to reject those deceptions. If ever there was a time to

unfurl the banner of unabashed conservatism, it is now.’’

In that year, you were also quoted as saying, ‘‘There are two

things you find in the middle of the road, and moderate and a dead

skunk, and I don’t want to be either one of those.’’

[Laughter.]

Senator KOHL. As someone who works the middle of the road myself, I find these statements troubling. Tell us why we should believe that, as Attorney General, you will accept those voices in your

own party who counsel compromise.

Senator ASHCROFT. Well, I thank the Senator for that question.

I’m still getting adjusted to this, to hearing myself. It’s like talking

in the shower in this room. It’s a little bit different, but I thank

you.

The first quotation was a quotation about whether in my judgment a party should set forth a clear agenda, and I think it’s important for the party to be in a position to debate. And I would expect the Republican Party to be stating a clear conservative position, and I generally expect people on the other side to state a more

predominantly liberal position.

In the process, in the collision of those ideas is what I appreciated as the process in which we were able to work together in

many instances to get legislation. When different ideas come from

different quarters, those differences enhance the ultimate quality of

what we do, and pardon me for lapsing back into my ‘‘we do.’’ I’m

no longer a Member of the Senate, and I understand that. But at

the time I was a Member of the Senate. And I think that when

there are people who state a strong position on one side and a

strong position on the other representing their parties, and then

they come together in the process to reach a conclusion, it’s valuable.

Another way of putting it would be that if we were all right there

in the middle together, we wouldn’t need the legislative process.

The legislative process is the process of disagreement. It’s the process of debate. It’s the process of stating these and examining the

various positions from one end to the other and then harmonizing

those differences by working together.

So I expect the Republican Party generally to state a pretty

strong conservative view and to start the negotiations from that

view with the understanding that by the time you finish, we’re

going to have something that’s going to be an enactment that results in something that people can generally support and that will

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have good values expressed from a variety of significant perspectives.

I have to say this, that I mean no injury or disrespect to those

individuals who don’t have my views in that respect. I just wanted

to encourage people not to think they always had to think what

other people thought, they were free to have a position at one end

of the spectrum or another, and that in the collision of those views,

we hope that out of that collision the truth emerges and good policy

and legislation emerges.

The joke about what you find in the middle of the road, I really

regret it if anyone’s offended by it. I had one of the individuals who

intends to testify against me tomorrow come up to me this morning

and say: You know, I agree with you about the middle of the road.

I’m on the other side of the road, and I don’t—I tell the same story.

I don’t know whether she’ll want to confess that when she is testifying tomorrow, but she said: I understand the joke, I’m from

Texas, and we didn’t say dead skunk, we said armadillo.

Frankly, I would be the first to say that I do not intend to impugn people for their political positions, and I’m sorry if that is to

be taken in that respect. It was meant as a humorous sort of aside

to say that I generally have been characterized fairly as a commonsense conservative and I haven’t been right in the middle of the

road.

Senator KOHL. Well, you are likely to be confirmed, as we all

know, as the next Attorney General of the United States. How will

you be—or will you be a different kind of an advocate as Attorney

General than you have been as a Senator in the sense that we in

the Senate have seen you consistently very much on the right on

virtually every issue? And that is fine. I mean, you know, you campaigned as that kind of a Senator-to-be, you were elected, and you

have been that kind of a Senator, and a very respectable Senator,

obviously.

Is there a different kind of a person within your obviously strong

philosophical background and views, but is there a different kind

of a person who we might well expect to see as the Attorney General of the United States?

Senator ASHCROFT. Well, I thank you for that question because

these are vastly different roles. I mean, if a person’s playing at the

power forward position, he has one approach to the basket. If he’s

playing as the distributor of the ball, as the playmaker, he has another approach.

When I was in leadership responsibilities with the National Association of Attorneys General, I understood that it wasn’t my position to be—I had to sacrifice some of my advocacy roles and some

of my—what otherwise would have been my approach to be responsible in those positions; similarly, when I was Chairman of the National Governors’ Conference or when I was elected to be the Chairman of the Education Commission of the States, which was an education organization that involved not only all the Governors but

members of all the State legislatures and all the State school organizations that dealt with education.

And there’s another important difference with the Attorney General in that as it relates to policy matters. As it relates to policy

matters, he is referenced to the President of the United States. And

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it would be my responsibility to carry forward on things that the

President of the United States would expect me to advance.

Now, that’s not inconsistent with what an attorney does, because

an attorney represents individuals all the time. That’s part of what

we’re trained to do. But I would say to you that I would expect in

the role of Attorney General to enforce all the laws vigorously and,

as it related to policy matters, to reflect the administration’s policy

and effort to achieve the kinds of things that this administration

was elected to achieve by the American people.

So I understand the distinction. I think my past indicates that

I’ve been capable on a number of occasions in making the difference and in adjusting the way that I approach things to fit my

responsibilities in the role that I’m expected to play. And I can

pledge to you that I will work to work with all people at the Attorney General’s office, and I will welcome the participation and conversation and involvement of all kinds of individuals.

In that respect, it may not be totally different from what I’ve

done here in the U.S. Senate because I’ve had the privilege of cosponsoring legislation with a lot of individuals, the Chairman in

particular, and obviously we’re not what you would call inseparable

twins on policy. But there are areas respecting privacy and—

Chairman LEAHY. Separated at birth.

Senator ASHCROFT. Separated at birth, OK. That have made it

possible for us to work together, and I would expect to work with

a broad range of individuals, especially be honored to do so with

members of this Committee.

Senator KOHL. OK. Thank you.

In 1979, as Attorney General of Missouri, you brought an antitrust case against the National Organization for Women for sponsoring a boycott of States that had not yet ratified the equal rights

amendment. You lost the case all the way up to the Supreme

Court.

It is a basic principle of antitrust law that when boycotts involve

non-commercial concerns, the Sherman Act does not apply. And yet

even after you lost the case, you still disputed the ruling. In 1981,

you wrote a Law Review article that said, ‘‘The decision created a

potentially disastrous exemption from the antitrust laws,’’ and that

‘‘parts of the decision severely strained antitrust laws.’’

You seem to have pursued a highly unusual use of the antitrust

laws. Some have argued that you chose to further your political

views above the equal rights amendment by using your office as

State Attorney General. Furthermore, you kept appealing the case

despite well-established Supreme Court precedent against you.

Can you explain to us why you chose to pursue that case so vigorously?

Senator ASHCROFT. Thank you for the question, and it’s a valid

one. In response to the fact that the elected representatives in the

legislature of Missouri chose not to ratify the equal rights amendment, a boycott was organized of the State of Missouri which would

have curtailed the State’s ability to attract conventions and provide

employment to individuals who populate the convention industry.

This lawsuit took place over 20 years ago, and I’m not sure I can

recall all the details. We filed the lawsuit, in the best of my recolVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00133 Fmt 6601 Sfmt 6601 C:\HEARINGS\76342A.002 SJUD4 PsN: SJUD4
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lection, because the boycott was hurting the people of Missouri and

we believed it to be in violation of the antitrust laws.

The lawsuit had nothing to do with the ERA—we didn’t sue the

ERA—or with the political differences that it might have had with

NOW. It simply was with the practice of saying that we’re not

going to—we’re going to curtail convention business, and for individuals in my State who relied on that industry, they were to be

hurt.

Now, I litigated that matter thoroughly, and, frankly, other

States attempted it—one other State attempted a similar lawsuit,

and not too long thereafter, I think a similar lawsuit was launched

by an organization that questioned whether or not commercially directed boycotts were susceptible for achieving political ends.

I think the law is well-settled and clear. After our case was resolved, and in the Eighth Circuit Court of Appeals, one of the

judges found in our favor, and two of the judges found against us.

So that it was a matter which had some acceptance in the courts,

but obviously I didn’t carry the day.

I think the law is clear now and has been clear in the aftermath

of that decision, and from that perspective, I don’t think it’s an

issue and can’t be an issue. And there is and has been a well-established subsequent set of circumstances that have demonstrated

that commercial boycotts targeting individuals or industries to

force third parties to vote or to conduct themselves in some way politically are acceptable. And since that’s the case, that’s the situation and the rule of law at this time, having lost the case 2–1 in

the Eighth Circuit Court of Appeals and the Supreme Court having

denied cert and other cases having been resolved, I accept that

fully and have not recently alleged that there ought to be any

change in the law in that respect. It’s a part of the way I have

come to believe America resolves these issues.

Senator KOHL. Antitrust, Senator Ashcroft. Last week, American

Airlines announced that it will buy TWA and enter a joint agreement to run D.C. Air and operate the Washington-New York shuttle. Meanwhile, the U.S. Airways-United merger is under scrutiny

at Justice. By mid-spring we might see four airlines turn into two,

and these two merged airlines will control a tremendous share of

airline travel in the United States.

The combined U.S. Airways-United and American-TWA share

will be nearly one-half of the domestic airline market. These two

airlines will collectively dominate no fewer than 13 hubs, including

many of our major, major airports.

This fast-moving consolidation in the airline industry doesn’t

leave the head of the Justice Department with much time. Before

we know it, we could have a domino effect in the airline industry

take place. There’s a real chance that transition paralysis could result in a merger wave that won’t stop until there are only three

or four airlines nationwide.

How concerned should we be about this pending airline consolidation? When confirmed, if confirmed, how quickly do you intend

to act? Is it something that is on your radar screen in a very major

way? What can we expect from you by way of some action? Do you

have something beyond the comment that it is a serious matter,

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you will have to consider it? Can you tell us the direction in which

you might very well go?

Senator ASHCROFT. I consider it serious. I will study the issue

very carefully. I do not know all the facts and circumstances. I

think it would be inappropriate for me, not fully aware of this, to

be announcing a position or a direction.

I can tell you that I believe that competition is very important

and the absence of competition I have witnessed, and it’s a serious

problem. In the absence of competition, I think you have very serious problems with rates. We’ve all seen what happens when there’s

only one way out of town, and we’ve watched how in those settings

rates go way up. We’ve watched when Herb Keller comes to town

with Southwest Airlines, and we’ve watched what happens to rates

in those situations. And my view is that it’s very therapeutic when

you get competition.

I will do what I can to make sure that we maintain the right

competition, and I will—but I’ll have to base what I do on the responsibilities of the Justice Department, and it has to be based on

facts and a thorough investigation of the situation.

Senator KOHL. Thank you, Mr. Chairman.

Chairman LEAHY. The Senator from Iowa, Mr. Grassley, I am

told by Senator Hatch is in another confirmation hearing where he

is questioning the witness, and so we will turn to the Senator from

Pennsylvania, Senator Specter.

Senator SPECTER. Thank you, Mr. Chairman.

Senator ASHCROFT, I didn’t realize how important this hearing

was until it was scheduled here in the Senate Caucus Room. We

haven’t been here since Justice Thomas and Judge Bork. This is a

very famous room for major matters. It is the room where President Kennedy announced for President back in 1960. So it is a

commentary on the importance of the hearing.

Permit me to go to a key issue on the choice issue, a woman’s

right to choose, and concerns which have been expressed about

your enforcing the law, which I thought you stated very positively

yesterday, and move to the area of prosecutorial discretion where

there is substantial leeway for an Attorney General or even a district attorney, as I was for many years, dealing with the prosecutor’s discretion on what cases to prosecute and how to handle them.

And what I think many Americans are looking for beyond your assurance that you will enforce the law is your commitment to exercise your discretion to carry out the intent of the law on a woman’s

right to choose within the confines of existing law which you have

promised to support.

One of the votes that you cast that I thought was particularly

significant was the one in the bankruptcy context. It is interesting

that it should have an application to a woman’s right to choose.

But when protesters blocked abortion clinics, there have been some

very substantial verdicts handed down, one in excess of $100 million. And when that issue came before the Senate, you voted that

those individuals who had those verdicts against them would not

be permitted to have a discharge in bankruptcy.

What assurances can you give, Senator Ashcroft, that your discretionary calls as Attorney General will be to enforce the intent

behind existing law on a woman’s right to choose?

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Senator ASHCROFT. Well, any constitutionally protected right is

an important right, and I think people who interfere with the exercise of constitutionally protected rights should be the focus of attention by prosecutorial authorities. It’s my understanding that there

are anticipated several dozen cases a year in terms of the violence

or obstruction or coercion around abortion facilities or other health,

reproductive health facilities. And I would think that it should be

the responsibility of the Attorney General to be able to respond aggressively in every one of those situations.

Senator SPECTER. Well, if you say aggressively, that is a good assurance. Aggressive has a well-accepted meaning. I like aggressive

prosecutors.

Let me pinpoint the issue on constitutionality of the statute, the

Freedom of Access to Clinic Entrances. There have been some 24

cases which have challenged the constitutionality of the Act under

the First Amendment in the Commerce Clause, and all 24 of these

cases have been decided favorably to the constitutionality of the

Act.

The job of the Attorney General, just like the job of the district

attorney, the State Attorney General, is to uphold the constitutionality of the Act, and I note you nodding in the affirmative.

Would you commit to the Attorney General’s generalized responsibility to support the constitutionality of existing legislation like

the Freedom of Access to Clinic Entrances?

Senator ASHCROFT. Let me just say that I would support the constitutionality of the Act. I don’t believe there is a First Amendment

right to coercion and intimidation. I think that’s the clearest thing

I can say. When people say that this Act interferes with their First

Amendment right, I don’t think that’s what the First Amendment

provides. The First Amendment does not mean that you have the

right to intimidate a person who is exercising their constitutional

rights. The First Amendment— Senator SPECTER. So you would— Senator ASHCROFT.—Doesn’t provide you with the right to violate

the person and safety and security of an individual in that respect.

So I will vigorously enforce and defend the constitutionality of—of

course, that’s my responsibility. When this Senate acts and makes

a determination through an act and it’s signed by the President

that something should be the law, that places a very high level of

responsibility on the Attorney General to carry that out.

Senator SPECTER. Let me move to freedom of religion, Senator

Ashcroft, an area again where substantial concern has been expressed.

There have been many quotations of your speech at Bob Jones

University on ‘‘we have no king but Jesus,’’ and I view that as a

personal comment which you have made. We all have our own

views on religion, and the question is not what John Ashcroft or

Arlen Specter hold as religious views, but whether the sacrosanct

provisions of the First Amendment on freedom of religion will be

maintained and enforced and the Attorney General has a very vital

role there.

Political speeches frequently contain a lot of references to religion. This happens on both sides of the political aisle, and some of

us may not do it and some of us may, but political speeches are

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one thing and personal views are another. But the most important

factor is the enforcement of the law.

Now, I note that Attorney General of Missouri, you had acted to

prohibit the distribution of religious material on a campus, and

what I would like to know is your determination, putting aside

your own views, your resoluteness to enforce the sacrosanct provisions for freedom of religion of the First Amendment, and perhaps

if there are other instances that you could show in addition to that

one where you stop the distribution of religious material on a campus.

Senator ASHCROFT. Well, first of all, I am committed to the right

of individuals to worship freely in accordance with the dictates of

their own conscience or not to worship at all, and I will work

acidulously to defend that right for all Americans.

The phrase, ‘‘we have no king but Jesus,’’ was a representation

of what colonists were saying at the time of the American Revolution in a number of instances, and it became a bit of a rallying cry

when people came to collect taxes on behalf of the King of England

and the American colonists would respond with that phrase.

I was putting in that speech in context the idea that the ultimate

authority or the ultimate idea of freedom in America is not governmentally derived. It basically went to something that was reflected

when Thomas Jefferson wrote the Declaration of Independence. He

didn’t write, ‘‘We hold these truths to be self-evident that all men

get from government equality.’’ Senator SPECTER. Senator Ashcroft, because of limited time— Senator ASHCROFT. Sure.

Senator SPECTER.—Would you pinpoint what you did specifically

as Attorney General of Missouri in not permitting religious matters

to be handed out on campus?

Senator ASHCROFT. Well, the question was raised about whether

Christian groups could distribute Bibles on school grounds, and

Missouri constitution happens to be even more adamant about

church and State and requiring separation far more clearly even

than does the U.S. Constitution. And I looked at the constitution

of these groups, obviously were groups that I had some favor for,

but obviously the law has to be followed. I simply—

Senator SPECTER. Did you stop the distribution of those— Senator ASHCROFT. I issued the opinion that indicated that distribution was unlawful.

Senator SPECTER. And what did you do?

Senator ASHCROFT. Distribution ceased based on that.

Senator SPECTER. Let me move to Supreme Court nominations,

Senator Ashcroft. President-elect Bush has already said that he

would not employ a litmus test on pro-choice, pro-life on Supreme

Court nominees on this panel, and many of us who are pro-choice

have supported candidates for the Supreme Court who were known

to be pro-life and many Senators who vote pro-life have supported

nominations for nominees who have been known to be pro-choice.

To the extent that you have any role in the selection of Supreme

Court nominees, would you make a commitment not to employ a

litmus test on the pro-choice/pro-life distinction?

Senator ASHCROFT. I have not had a substantial discussion with

the President-elect of the United States about my role in terms of

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judicial selection. I know the Constitution allocates clearly the appointment authority to the President.

I know that he has indicated that he would not have a litmus

test, and I believe that in my service to him, it would be important

that I reflect that clear indication of his that no litmus test would

exist.

Senator SPECTER. So you would make a personal commitment

not to apply a litmus test to Supreme Court selections to the extent

that you may be involved in that?

Senator ASHCROFT. To the extent that I have the authority, I am

going to do—I am going to work with the President and his framework for developing Supreme Court justices. The answer is clear,

no litmus test. I think he stated that clearly, and that would be my

position.

Senator SPECTER. Your position as well. OK.

The issue on antitrust has been broached by Senator Kohl, and

I would like to pursue that a little further. I share Senator Kohl’s

concerns about the airline mergers. I am concerned about what

OPEC is doing.

Just this morning, there is an announcement of raised prices by

OPEC curtailing production, and I would like to make available to

you a letter signed by six members of this Committee to the President in April of last year setting forth a basis for litigating with

OPEC antitrust violations and ask you to take a look at that and

give us a view of it a little later.

Staying with the antitrust issue for another moment or two,

without expressing any view on the Microsoft case, because it is a

very complex issue, it has been decided in the District Court. It is

on appeal to the Court of Appeals for the District of Columbia Circuit. The question which I would like your response to is to what

extent you would honor the Court process.

It would be one thing if the matter was considered ab initio by

Attorney General Ashcroft, if confirmed, contrasted with an action

which is already underway.

Here you have a District Court judgment and you have the matter on appeal. To what extent—and here, again, I emphasize, I am

not commenting on the merits. That is something different. I am

only on the process as to the extent of recognition that as Attorney

General, if confirmed, you would give to the existing legal status

of the case.

Senator ASHCROFT. Well, I am very pleased to answer the question. The Microsoft case is a very important case, and the maintenance of competition in our culture is a very important aspect of

what we need to make sure that we get the right output.

I would first say that I will have to confer with the people in the

Antitrust Division. I don’t know the facts of the Microsoft case. It

is a very complex case from what I have heard about the case. It

relates to tying arrangements and the integration of various aspects of software. The judgment of the District Court obviously

would have substantial consequences.

I would look very carefully at this case, relying on the expertise

of the Department in deciding strategy for the case, and I am not

in a position to assure you that I would do anything other than

that at this time.

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Senator SPECTER. My yellow light is on. So I have less than a

minute.

I would conclude this round, Senator Ashcroft, by noting your

sense of humor, noting your membership among Singing Senators.

In a senatorial role on official responsibilities, there is very little

opportunity for a Senator to display any sense of humor when you

are talking about the death penalty or you are talking about the

weighty legal issues that come before the Congress of the United

States, but I think it is something that ought to be noted.

I have some concern, only slight, not about the fact that you

don’t drink or smoke, but that you don’t dance, and had some sense

of wonderment as to how that fit in with your being so extraordinarily capable as a Singing Senator.

I would come back only for a moment to the middle-of-the-road

question, and there are a lot of moderates who have asked me— I talk to some from time to time—about the only people in the middle of the road being dead skunks and moderates. I have seen your

sense of humor in the hearing room which I think is exemplary,

and I have noticed it a lot when you were on this side of the bench

where you might have been a little more comfortable. Sometimes

your quips may get you into a little trouble.

I think you have already explained it, but I have some explaining

on that particular one with some of the people in the so-called moderate group.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you, Senator Specter.

I would note for the record the Chairman, current Chairman of

this Committee, does dance, but that is probably disputed by my

wife of 38 years.

I turn to the distinguished senior Senator from California, Senator Feinstein.

Senator FEINSTEIN. Thank you very much, Mr. Chairman.

Senator Ashcroft, I must tell you, I am deeply puzzled by what

I heard yesterday and what I hear today. I am one that believes

that in political life of which you have been part for 25 years, it

is very hard to change your stripes or change your spots, and I see

a kind of metamorphosis going on, a mutation, if you will, that

somebody that has been really on the far right of many of the

issues about which Senators have spoken today or yesterday, civil

rights, a woman’s right to choice, certainly guns, is now making a

change, and quite frankly, I don’t know what to believe.

I would like to confine my questions to choice and to guns. You

have a long history of vigorously criticizing the pro-choice position.

In 1998, you wrote, ‘‘If I had the opportunity to pass but a single

law, I would ban every abortion except those medically necessary

to save the life of a mother.’’ In 1983, while you were Attorney General, you told the Missouri

Citizens for Life Annual Convention that you would not stop until

an amendment outlawing abortion is added to the United States

Constitution. When you spoke at the National Right to Life Committee Annual Convention, you said, and I quote, ‘‘The Roe decision

is simply a miserable failure, and I hope that the Supreme Court

announces it is overturning the Roe decision and giving back to the

States the right to make public policy.’’

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While Governor in 1989, you declared the sixteenth anniversary

of Roe v. Wade a day in memoriam for aborted fetuses. So you

have, in fact, been an implacable foe of a woman’s right to choose

for a quarter of a century.

You have supported legislation and even a constitutional amendment that would define life at the beginning of fertilization which

would not only criminalize all abortions and take away a woman’s

right to reproductive freedom and choice, but would also outlaw

and criminalize many forms of the most common birth control options. I frankly don’t know what to believe.

You said of Bill Lann Lee in one of the reasons you voted against

him was because he had the kind of intensity, and I quote, ‘‘that

belongs to advocacy, but not with the kind of balance that belongs

to administration,’’ and I might respectfully say the same thing

about you and your record.

I want to ask you some specific questions. We talked in my office

about a rape exception, and let me ask this question. Each year,

more than 32,000 women become pregnant as a result of rape, and

approximately 50 percent of these end in abortion. Given the circumstances surrounding any rape and certainly a resulting pregnancy, can you tell us why you feel there is no need for a rape exception to a ban on abortion?

Senator ASHCROFT. Thank you for your question. I understand

these are deeply held views of yours, and my opposition to the

abortion of unborn children has been a deeply held position of

mine.

I have sought in a number of ways through the years to reduce

and to curtail the abortion of unborn children, and I understand

that reasonable people do differ on these things and that has been

not only my understanding, but it has been a basis for my seeking

to act in concert with people to cooperate to move toward a variety

of different ways to reduce the level of aborting unborn children in

our culture and in our society.

I have voted on numerous occasions for rape and incest exceptions, and have voted for much broader exceptions than that. One

time when I was Governor, I proposed that we only ban second

abortions or abortions for second or third times, we ban abortions

for racially mixed children because people were wanting to abort a

child for being racially mixed or we banned abortion for sex selection. So I think it is fair to say that over the course of my time

in office and with the prerogatives I have had as a public servant,

I have adopted a variety of positions to try and reduce the number

of children being aborted.

I think it is also fair to say that I know the difference between

an enactment role and an enforcement role, and during my time as

a public official, I have followed the law and my following of the

law has been clear. When I was the Attorney General of the State

and pro-life groups wanted to insist on the publication of abortion

statistics for particular hospitals and they asked that those abortion statistics be published, I went to the law, in a fair reading of

the law didn’t allow for the publication of those statistics which

could have made those hospitals the target for pro-life forces. I followed the law in saying that I would not force the State or rule

that the State had to publish those statistics when I think the law

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was clear that it should. So I have a record of being able to say

I know the difference between enacting the law, the debate about

the law. My involvement in legislation has, very frankly, in recognition of the law centered in real terms on trying to do things

like get parental consent and other things like that. Those are the

kinds of things which I have focussed on, the ban of partial-birth

abortion, but I will enforce the law fairly and aggressively, firmly.

I know the difference between the debate over enacting the law

and the responsibility of enforcing the law, and that has been clear

in my record as a public servant.

Senator FEINSTEIN. Will you maintain the Department of Justice’s Task Force on Violence Against Health Care Providers and

give it the resources it needs to continue?

Senator ASHCROFT. I will—the—there have been, I think, three

different task forces in this respect. I will maintain such task forces

and provide them with the kind of resources that they need in

order to make sure that we don’t impair the constitutional right of

women to access reproductive health services.

Senator FEINSTEIN. Will you, 100 percent, investigate and prosecute activities that block the entrances to facilities where abortions are performed even if the conduct is non-violent?

Senator ASHCROFT. If the conduct of anyone violates the law regarding the access of women to reproductive health services, I will

enforce the law vigorously. I will investigate the alleged violations

thoroughly. I will direct U.S. Attorneys to devote resources to that

on a priority basis.

Senator FEINSTEIN. When you said yesterday that Roe was a settled question, does that indicate that you accept this adjudication

and that you will use all of the elements of your offices to support

it?

Senator ASHCROFT. I believe that both Roe and Casey and I

guess—is it Stenberg? Is that the most recent case that related to

the Nebraska statute? —are settled law. In the application for certiorari, I think on the Stenberg case, there was a request for—by

one of the parties that Roe be considered, reconsidered. The Supreme Court has signaled very clearly it doesn’t want to deal with

that issue again.

I would say that I do not want to devalue the currency of the Solicitor General of the United States by taking matters to the Supreme Court on a basis which the Supreme Court has already signalled we don’t want to deal with and we are unwilling to deal

with.

I think, you know, the Solicitor General of the United States has

some standing and prestige in the United States Supreme Court,

and to consistently go back to the Court insisting that the Court

do what the Court has indicated it doesn’t want to do devalues the

ability of the Solicitor General in other matters.

It not only is, thus, a losing proposition, but it is counterproductive as it relates to the ability to succeed on other issues in

the Justice Department, and, therefore, accepting Roe and Casey as

settled law is important not just to this arena, but important in

terms of the credibility of the Department.

Senator FEINSTEIN. Let me change to guns for a moment. In this

body, I was the main author of the assault weapons legislation in

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1993. I feel very strongly and very passionately that assault weapons have no role in this society on the streets of our communities.

That law is supported by virtually every Federal and local and

State law enforcement agency across our land, and I think law enforcement recognizes that there is no legitimate reason for civilians

to have military-style weapons that are useless for hunting or really for self-defense.

Now, the National Rifle Association, on the other hand, opposed

and continues to oppose the Federal assault weapons ban in court

in suits in which the Justice Department took the other side defending the statute.

You called this ban wrong-headed in a response letter to Sarah

Brady in 1998. If you become Attorney General, will you maintain

the Justice Department position in support of the assault weapons

ban?

Senator ASHCROFT. Yes.

Senator FEINSTEIN. Will you support its reauthorization when it

sunsets in 2004?

Senator ASHCROFT. It is my understanding that the Presidentelect of the United States has indicated his clear support for extending the assault weapon ban, and I will be pleased to move forward with that position and to support that as a policy of this

President and as a policy of the Justice Department.

I might add that I had the—I don’t believe the Second Amendment to be one that has—forbids any regulation of guns. In some

of the hearings that I conducted when I had the privilege of serving

on this Committee and was the Chairman of the Constitution Subcommittee, we discussed those issues, and, for instance, in the Juvenile Justice bill, I sought to amend the Juvenile Justice bill so

as to make semiautomatic assault weapons illegal for children just

as handguns were illegal for children.

And there are a number of enactments which I would not prefer

as policy, but which I believe would be constitutional. As a policymaker, I may not think that a particular weapons ban would be appropriate, but as whether—I could have voted against a number of

things which I thought constitutional, but which I might have

thought bad judgment.

What I am trying to clarify here is that I believe that there are

constitutional inhibitions on the rights of citizens to bear certain

kinds of arms, and some of those I would think good judgment,

some of those I would think bad judgment, but as Attorney General, it is not my judgment to make that kind of call. My judgment,

my responsibility is to uphold the acts of the legislative branch of

this government in that arena, and I would do so and continue to

do so in regard to the cases that now exist and further enactments

of the Congress.

Senator FEINSTEIN. Now, let me ask you another question on

guns. I was co-sponsor of the Juvenile Justice bill with Senator

Hatch as the main author. We wrote the gang abatement section

of the bill because I am deeply troubled by gangs that have moved

across State lines. Some of the gangs that originated in California

are now all over the United States, and in that bill, we use the

RICO laws to set some predicates. And some of the crimes I was

interested in adding were trafficking in guns with obliterated serial

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numbers, possession of machine guns, knowingly transferring a

smuggled gun to be used in a drug or violent crime, importing guns

with intent to commit a drug or violent crime, stealing guns, transportation of bombs, machine guns, or sawed-off shotguns by an unlicensed person, transporting stolen guns, position of illegal assault

weapons—possession of illegal assault weapons, and stealing firearms from a licensed dealer, importer, manufacturer, or collector.

The point of adding these crimes as RICO predicates was to give

law enforcement the ability to seize the assets of violent gangs and

increase penalties for gangs conspiring to commit these and other

crimes.

Now, it is my understanding that you work to strip the bill of

these predicates. My question is why.

Senator ASHCROFT. Well, first of all, let me say that in the event

the bill passes with those predicates, I will defend the bill and instruct the Department to defend the bill and its constitutionality.

There were a number of individuals that expressed to me serious

reservations about the RICO applications in the bill. RICO has

been a controversial matter that has been questioned by members

of this Committee on both sides in terms of potential abuses, even

gaining the attention of the ACLU which has challenged the application of RICO in these settings.

Those were the reasons that I had challenged the wisdom of including those in the bill and the effect of its inclusion on the ultimate passage of the bill. As Attorney General, I would provide instruction to the Solicitor General in defense—and others in the Department in the defense of actions to support the bill. It is clearly

within the range of items that it would be the responsibility of the

Attorney General to support.

Senator FEINSTEIN. I believe my time is up.

Chairman LEAHY. It is. Thank you.

Senator FEINSTEIN. Thank you very much, Senator. I appreciate

that.

Chairman LEAHY. Senator Grassley, who is the ranking member

and incoming Chairman of the Finance Committee, is still tied up

at the Secretary of the Treasury hearings. So we will go to the distinguished Senator from Arizona, Senator Kyl.

Incidentally, I would note before Senator Kyl starts, when Senator Grassley is able to be here—we all understand he has to be

gone—and I have discussed this with Senator Hatch, he would

then become the next Republican to ask questions.

Senator KYL. Thank you very much, Mr. Chairman.

Mr. Chairman, I would like to cover three things if I could in this

round of questioning.

First of all, I would like to make a comment about some statements that Senator Kennedy made, and if Senator Ashcroft wishes

to respond, to afford him the opportunity; second, to ask a question

about nomination standard; and, third, if there is time to get into

the issue of victims’ rights.

First of all, Mr. Chairman, Senator Kennedy in his opening

statement launched a litany of attacks against Senator Ashcroft,

some of which Senator Ashcroft had an opportunity to address.

In my opinion, most of these attacks had the effect of distorting

Senator Ashcroft’s record, and I think that they were unfair.

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First of all, Senator Kennedy said that Senator Ashcroft—and I

am quoting now, these are direct quotations from the transcript— ‘‘strongly opposed school desegregation.’’ Now, that’s not true from

what I understand, and Senator Ashcroft did have the opportunity

briefly to testify that he strongly supports desegregation, believes

in integration, and protecting everyone’s civil rights.

Secondly, Senator Kennedy said that Senator Ashcroft—and,

again, I am quoting—‘‘strongly opposed voter registration in St.

Louis.’’ Now, apart from being obviously incorrect on its face, Senator Ashcroft also had some opportunity to explain that he does not

oppose voter registration in St. Louis. In fact, the etiology of that

charge was legislation that he vetoed having to do with voter registration policies in the State, one of the bills being strongly recommended for veto by predominantly Democratic public officials.

Third, Senator Kennedy charged that Senator Ashcroft did not

support our laws concerning access to contraception and a woman’s

right to choose. Here, I simply note that while I don’t think that

Senator Kennedy was inaccurate in the way he described Senator

Ashcroft’s positions necessarily, three is an implication that is left

that is inaccurate.

While it is true that Senator Ashcroft as a legislator sought to

change some of the law, he said that and has had further opportunity to amplify in response to Senator Feinstein’s question that

in his very different role as the lawyer for the American people

that he would fully enforce the law as it exists.

Fourth, Senator Kennedy said that Senator Ashcroft—and,

again, I am quoting—‘‘is so far out of the mainstream that he has

said that citizens need to be armed in order to protect themselves

against a tyrannical government,’’ end of quotation.

Now, the way that that charge was made, made it sound very irresponsible for anyone to take such a position, and it made it sound

like this was something that Senator Ashcroft was very concerned

about and, therefore, very much distorted his views.

The charge was obviously out of context. The correct context—

and this is something that Senator Ashcroft did not have an opportunity to respond to. If my characterization is inaccurate, I ask him

to please add to what I say, but the remarks that he is referring

to, I believe are those that occurred before a hearing of the Constitution Subcommittee of this Committee, which Senator Ashcroft

chaired and during which he observed that the Second Amendment

conferred individual rights upon citizens, and here is his quotation,

the full quotation from that hearing.

It was a recitation of the views of James Madison, the Father of

our Constitution, and here is what Senator Ashcroft remarked, ‘‘In

Federalist No. 46, James Madison, who later drafted the Second

Amendment, argued that the advantage of being armed, which the

Americans possessed over the people of almost every other nation,

would deter the new central government from tyranny,’’ end of

quotation. As we know, James Madison was the primary author of

much of the Constitution, and I frankly think it is a stretch to consider the Founders and James Madison out of the mainstream, but

don’t take it from me.

Senator Feingold during his questioning, among other things,

said this—and this is a quotation from the transcript—‘‘I listened

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carefully to every word you,’’ meaning Senator Ashcroft, ‘‘said, and

I reserve the right to change my mind after reading the transcript,

but I believe I agree with every single word you have just said.’’

Continuing the quotation, ‘‘The purposes of the Second Amendment

include self-defense, hunting sport, and some certainly would say,

as would I, the protection of individual rights against a potentially

despotic central government. The Second Amendment was clearly

intended to counter-balance a distrust of and to protect the right

to defend against an oppressive government.’’

Mr. Chairman, while there is certainly room for us to debate Second Amendment gun control issues—and we have had robust debates about that—I think it goes too far to characterize a position

that was held by President Madison, Senator Ashcroft, Senator

Feingold, and a lot of other scholars on the issue as outside the

mainstream, and, in fact, I suggest it may say more about Senator

Kennedy’s locus in the spectrum of American public opinion.

Fifth, Senator Kennedy said that Senator Ashcroft ‘‘opposes virtually all gun control laws,’’ and he had some opportunity yesterday to explain his view that that is not true and to further expand

in his answer to Senator Feinstein just a moment ago. He supports

the Brady law, voted to require mandatory background checks for

all gun purchases at gun shows, to prohibit firearms in a school

zone, to prohibit those convicted of domestic violence from possession a firearm, drafted the juvenile assault weapon ban that passed

the Senate in 92 to 2, and supports President-elect Bush’s policies

to aggressively prosecute those who buy guns illegally, sell them illegally, or commit crimes with guns.

And finally, Senator Kennedy said that Senator Ashcroft—and I

am quoting here again—doesn’t ‘‘respect the right to free speech

under the First Amendment,’’ and, Mr. Chairman, you can differ

with Senator Ashcroft on some issues, but I think it is not responsible to charge that he doesn’t respect the right to free speech

under the First Amendment. I think he has made it very clear that

he will enforce the law and that he has been an outspoken defender of the First Amendment for many years.

Senator Ashcroft, I hope that I have correctly characterized your

views. Would you—have I done so, and is there anything you would

like to add?

Senator ASHCROFT. Well, first of all, I am grateful to you for having been so careful in your approach to these matters, and I appreciate the opportunity for the clarification.

Senator KENNEDY. Mr. Chairman, I would hope that after Mr.

Kyl’s time has been allocated that I would have a chance to respond in terms of fairness.

Chairman LEAHY. Under the normal practice, when there is such

direct reference by one Senator to another Senator on the panel,

the Senator from Massachusetts will be given time to respond.

That time will not come out of either Senator Kyl’s or Senator Kennedy’s time.

Senator KYL. Mr. Chairman, I would hope that we could establish a process here where, however, it is not appropriate to throw

out charges, and when there is a response to those charges by a

Senator rather than Senator Ashcroft that that would unbalance

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the time that each of us on the Committee have to present our

questions and our statements.

Chairman LEAHY. We are trying to find our process, and neither

Senator will lose on their time as a result of that.

Senator KYL. Senator Ashcroft, let me ask you—there were attempts yesterday to define by Senators here on the dais an

Ashcroft standard for confirmation of Cabinet nominees. Perhaps

rather than defining that standard for you, it would be appropriate

for you to define the Ashcroft standard. Could you tell the Committee what you believe is the appropriate standard for the confirmation of Cabinet or sub-Cabinet nominees?

Senator ASHCROFT. Well, thank you, Senator. I think it is one of

the solemn responsibilities of Members of the Senate to make judgments and to participate with the President of the United States

in providing the staffing of the Cabinet-level positions and a variety of other positions.

In my 6 years in the U.S. Senate, approximately almost 1,700— I think it is 1,686—Presidential nominees have come before the

Senate, both judicial and non-judicial, of course. Of that 1,686, I opposed 15 of them.

Of President Clinton’s 230 judicial nominees, I voted to confirm

218. In fact, I never opposed a President’s Cabinet nominee. Larry

Summers, Alexis Herman, Bill Richardson, clearly there were policy differences in that respect, but I never opposed a nominee. The

President is entitled, in my judgment, to assemble a Cabinet that

reflects his policy views.

Notwithstanding these facts, Chairman Leahy suggested that my

opposition to these nominees reflected an inappropriate standard of

review, and the suggestion seems to be that any nominee with

whom I differed failed to garner my support. I just want to make

it clear that differing with a nominee did not mean they didn’t get

my support.

Consider the case of Bill Richardson. In 1996, he was nominated

by the President to be the United States Ambassador to the United

Nations. As Senator Biden and others will recall, he came before

the Senate Foreign Relations Committee on which I sat. I had real

policy concerns. We differed on important issues such as international family planning, U.N. peacekeeping operations, and the

U.S. funding of a rapidly expanding U.N. bureaucracy.

When asked about administration plans to help retire the U.S.

debt, Richardson asked the Committee to keep an open mind, and

I did. I supported his nomination despite a significant lobbying effort by some groups. Richardson was not an exception. He was part

of a larger role; in Chairman Leahy’s words, ‘‘a standard.’’ I examined the candidate’s record in light of the position for which they

were nominated. Then I made an objective determination based on

the facts.

For Federal judicial nominations seeking lifetime tenure, I looked

for individuals that understood the difference between interpreting

the law and legislating from the bench. For the position of Surgeon

General, I looked for someone whose career reflected high ethical

standards of the profession. Finally, in the case of William Lan

Lee, I considered carefully whether the nominee would enforce the

Supreme Court’s most recent ruling on racial quotas.

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Although my review contemplated the nature of the job and the

varied responsibilities, the standard consistently ensured that the

candidates understood the requirements of the job. I simply wanted

to ensure that a judicial candidate understood the judicial role,

that law enforcement candidates understood the responsibility to

enforce the law of the land, and this was not an overly demanding

standard in my judgment. It led me to approve 1,672 of the President’s nominees and every one of his Cabinet nominees.

Senator KYL. So, Senator Ashcroft, would it be fair to say—and

I do not mean to put words in your mouth—that simply differing

on ideological grounds with a nominee was not, in your view, a reason to vote against a nominee?

Senator ASHCROFT. I think it would be a real stretch for members of this Committee to think that I agreed completely with 218

judicial nominees of the President which I voted for. I obviously— I doubt of the Clinton administration would be doing the kind of

job it wanted to do had that been the case, but I believed that it

was appropriate to have differences in opinion with those individuals and differences in philosophy and differences in understanding

and to recognize and respect them and to vote for their confirmation.

Senator KYL. Thank you.

I would like to conclude with the matter of victims’ rights, something that both Senator Feinstein and I have worked on very hard,

and I must say with your strong support which I appreciate very,

very much and I know Senator Feinstein does as well.

Let me go back. You actually worked to gain support of the Missouri constitutional amendment on crime victims’ rights. Is that

correct?

Senator ASHCROFT. That’s correct. Missouri has a very substantial victims’ rights framework which I think would be enhanced by

a Federal victim rights amendment, and that is the reason why I

had worked to try and find a way to get that kind of thing in place

federally.

Senator KYL. And just so members of the Committee will know,

I came to you. You chaired the Constitution Subcommittee. I had

to talk to you about our amendment, and you were very willing to

conduct a hearing and to—so that we could get our amendment to

the full Committee and to the floor of the Senate for it to be considered. I—again, I thank you very, very much for your cooperation

in that regard.

Senator ASHCROFT. Well, I hope I was very accommodating to

you.

Senator KYL. Well, you were, but also you were able to—you

helped us to do that in a very timely fashion. I appreciate that.

My time is just about up, but perhaps you could just make a conclusory statement. There is a long list of things that you have done

to assist us in the development of the constitutional amendment

and to gain funding for victims’ rights, to add to the law other protections for victims’ rights, a whole litany of things that we could

talk about here, but perhaps just a short commitment on your commitment to supporting victims’ rights would be appropriate here.

Senator ASHCROFT. Well, if the Justice Department is to be focussed on justice for all Americans, there is a need for justice for

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those who have been offended as well as those who are the offenders, and the victims’ rights amendment and the victims’ rights

movement is designed to help us have balance in this respect, and

as you well know, one of my clear efforts was to make sure that

we have a recognition that people can be victimized even if they

are not physically abused or assaulted, particularly older Americans who are victimized by fraud and other scam situations. They

need to be protected in victims’ rights legislation, and that was

part of one of the things I sought to do. I commend both you and

Senator Feinstein for your effort in this respect.

Leaving the enactment arena was not a matter of my choice, and

so I will no longer have the ability to sort of advocate in the way

for issues like that, that I did previously, but I commend you for

your efforts.

Senator KYL. Thank you very much.

Senator KENNEDY. Mr. Chairman, I would like to have time to

respond to the Senator without the time being charged to either

side, please, since there was a direct assault in terms of the representations that I had made.

Chairman LEAHY. Following the normal procedure, you can.

Senator KENNEDY. Mr. Chairman, this is the condemnation of

the messenger. My good friend from Arizona does not like the message, but the message is out there, and that is what the message

is that we have to have that is before this Committee.

And let’s just come back for a minute. I know that the Senator

has asked about State involvement in the desegregation cases and

the voluntary cases in St. Louis, and he has responded yesterday

and he responded today and he is wrong, plain, simple wrong.

Now, this is what the Adams case in 1980 says. Senator Ashcroft

says that he—the State was not involved in that case. This is the

Adams v. United States 1980. The city and the State were jointly

responsible for maintaining a segregated school system. In reaching this decision, we note the Missouri State constitution had mandated separate schools for white and colored children through 1976,

and the State of which he was Attorney General had not taken

prompt and effective steps to desegregate the city schools

In Brown, 1982, the State again protests liability for this. We,

again, note that the State and the city board already adjudged violators to the Constitution, could be required to fund the measures,

including measures involving a voluntary participation of the

schools. The State was involved.

The fact is Senator Ashcroft didn’t listen to the judges saying

that the State was involved. That is the facts, Senator, and I don’t

retreat on that. I said it yesterday and I will say it again today,

and I would hope that he would have a more complete answer because it is clear. And any fair-minded person reading those cases

will find that to be so.

Secondly, I don’t retreat in his opposition to failing to meet his

responsibilities to register voters in St. Louis. He vetoed one bill,

and the Senator listed various Democratic officials saying, ‘‘Well,

we are glad we vetoed it because it was only targeted on St. Louis.’’

Then, the next year, did Senator Ashcroft do anything to try and

include registration? No. What happened? The legislature in the

State said if he is going to veto it because it just applies to St.

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Louis, we will apply one that goes to the whole State. What did

Governor Ashcroft do then? Veto it again. What has been the bottom line on it? The fact that tens of thousands of blacks were not

able to participate in the voting. That happens to be relevant, Senator, because we have just gone through a national debate and discussion and focussed on the question of whether minorities are

going to be able to vote, and there are current investigations on

that issue. That might not be important to you, Senator, but I

think it is important to the quality of the person that is going to

be at the head of the Justice Department, and I don’t retreat one

step on it.

Now the Senator comes back to the questions on guns, and the

question on guns, fine. We talked about the question on the guns.

Now Senator Ashcroft voted against closing the gun show loophole

and said he would have voted to oppose the assault weapons ban.

He will have an opportunity to give this President, whether they

want to reauthorize the assault weapons ban. I wish, in response

to an earlier question to show how interested he is in enforcing it,

he had said, ‘‘I would be glad to recommend to the President when

it expires, we are going to recommend that he extend that the next

time.’’ I would have given him an opportunity to say that. He has

voted twice against child safety locks. He has voted against the ban

on the importation of high ammunition magazines, voted twice to

weaken existing laws by removing background checks, and he led

the campaign for concealable weapons that even child molesters

who have been convicted in Missouri would be able to acquire. That

was defeated by the people of Missouri, and you wonder why we

bring up the issue?

Senator, he used those words that I quoted yesterday. Senator

Ashcroft used those words, besides calling James Brady who was

shot in the assassination attempt of President Reagan a loyal Republican, a distinguished citizen whose life has been battling those

wounds, and you call him the leading enemy of responsible gun

owners.

Then he went on, and I said Senator Ashcroft is so far out of the

mainstream. He has said citizens need to be armed in order to protect themselves against a tyrannical government and our government. Our government tyrannical? If the Senator from Arizona

doesn’t know the difference between the British and insurrection,

the American Revolution and this government that has been

formed under James Madison and the Constitution, there is a significant one.

Now, listen to this. Listen to what he said, and this is a quote.

This is Senator Ashcroft, ‘‘Indeed, the Second Amendment like the

First, an important individual liberty that in turn promotes good

government. A citizenry armed with the right both to possess firearms and to speak freely is less likely to fall victim to a tyrannical

central government than a citizenry that is disarmed from criticizing government or defending themselves.’’

Listen to what Gary Wills who has the Pulitzer Prize, wrote

about that. Gary Wills, a Pulitzer Prize winner, has written, ‘‘Listen, only a mad man, one would think can suppose that militias

have a constitutional right to levy war against the United States

which is treason by constitutional definition under this.’’

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I think this nominee owes an apology to the people of the United

States for that insinuation, talking about our government now

being the source of a tyrannical oppression. That is what I think,

Senator. I don’t retreat. I don’t retreat on any one of those matters.

I could take other time, Mr. Chairman, but I will halt at this

time.

Senator KYL. Mr. Chairman, I will be brief, if I could as a matter

of personal privilege.

Senator KENNEDY. Well, then I will reserve time, too, then, Senator. I thought we were here to consider the nominee.

Chairman LEAHY. Following our procedure, the Senator from Arizona has a chance to respond.

Senator KYL. Thank you.

Simply because Senator Kennedy made some comments directly

to me about matters not being important to you, Senator, meaning

to me, I respond that all of these matters are important. It is totally appropriate to raise the issues. What I objected to was what

I considered to be the mischaracterization of Senator Ashcroft’s positions, and every one of my references to Senator Kennedy were

direct quotations taken from the transcript. Nothing was misquoted

at all.

Without getting into each of the different substantive issues

which Senator Ashcroft ought to have the opportunity to do, I simply would note here that it is important for us to raise the issues,

as Senator Kennedy and others have done, to have a calm and rational discussion of all of the import of those issues with respect

to Senator Ashcroft’s nomination, and to carefully examine how he

will apply and follow the law as Attorney General. But I think primarily because most of us are lawyers here, I think it is very important for us to be careful about the language that we use. And,

therefore, Senator Kennedy, when you say, well, that may not be

important to you, Senator, of course, it is important to me. And

when you talk about—you wonder why we bring up these issues,

of course, it is appropriate to bring up the issues.

I am concerned here about mischaracterization, and I would assert that when you just now suggest that Senator Ashcroft was asserting that the U.S. Government is a tyrannical government, that

is not an accurate representation of his views under any reading

of what he has said or listening to what he has said.

So I will conclude—

Senator KENNEDY. Well, 30 seconds. These issues are perhaps

painful to be examined. Perhaps they are. But they should be. They

should be. Each and every one of those issues ought to be examined, Senator, and with all respect, I reject—if you don’t appreciate

the way that I present it, I can understand, I will accept that. But

I want to make it very clear that I don’t—I would restate those,

and I would be glad—I won’t take the chance at this time. I will

on the floor of the U.S. Senate take as much time as necessary, and

it may take some time to debate those particular issues.

Chairman LEAHY. The Chair is about to take a 5-minute break

unless the nominee wishes to respond to any of the colloquy that

has been going on between the distinguished Senator from Massachusetts and the distinguished Senator from Arizona.

Senator ASHCROFT. I side with the Chair.

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Chairman LEAHY. We will take a 5-minute recess.

[Recess from 11:31 a.m. to 11:44 a.m.]

Chairman LEAHY. Let us be back in order. The distinguished

Senator from Wisconsin, Senator Feingold, is recognized for his

round of questions.

Senator FEINGOLD. Thank you, Mr. Chairman.

Senator Ashcroft, we worked together well and cooperatively on

the Constitution Subcommittee of this Committee, and I can’t help

but say, after the exchange earlier— Chairman LEAHY. Would the Senator pull the microphone just a

little bit closer?

Senator FEINGOLD. I can’t help but say, after the earlier exchange, that I will miss working with you on that Subcommittee,

but I am relieved that you will not have a vote on those constitutional amendments anymore, because we had a very strong disagreement on that, but it was a very polite disagreement.

I would like to spend my time in this round talking primarily

about judicial nominations and civil rights. First, on judicial nominations—and I have said this to you before—I think the actions of

this Committee with respect to the judicial nominations of President Clinton were inappropriate. I believe the Committee acted inappropriately in allowing nominations to languish for months and

years without even a hearing. And it seemed, as I have said before,

that some didn’t even accept the results of the 1996 Presidential

election. I think a terrible wrong was done to qualified judges and

lawyers, like Bonnie Campbell and Helene White and Kathleen

McCree Lewis.

Senator Ashcroft, one person whose nomination was never acted

upon in the last Congress is Roger Gregory, a lawyer from Richmond, Virginia. President Clinton nominated Mr. Gregory for the

Fourth Circuit Court of Appeals, and I know that you are familiar

with that because we did discuss it in our meeting.

Last month, President Clinton appointed Mr. Gregory to fill that

Fourth Circuit position during the Congressional recess, and under

this recess appointment, Judge Gregory will serve until the end of

this Congressional session unless he is confirmed by the Senate, in

which case, of course, he would be on the bench for life. He has,

therefore, become the first African-American to serve on the Fourth

Circuit in history. And, Senator Ashcroft, recess appointments have

been used in the past to integrate the Federal bench. A. Leon

Higginbotham and Spottswood Robinson, the first African-Americans to sit on the Third and D.C. Circuits, respectively, were both

recess appointments by President Johnson in 1964, and President

Kennedy used the recess appointment power to make Thurgood

Marshall the first African-American judge on the Second Circuit in

1961. All of these appointments were ultimately confirmed to full

life terms.

Senator Ashcroft, do you see a problem with the circumstances

that in the year 2001 there is not a single African-American who

has ever been confirmed for a lifetime appointment to the U.S.

Court of Appeals for the Fourth Circuit?

Senator ASHCROFT. Senator Feingold, I believe that we should

try to get the best qualified individuals available for judicial positions and that we should try to make sure that our judiciary reVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00151 Fmt 6601 Sfmt 6601 C:\HEARINGS\76342A.002 SJUD4 PsN: SJUD4
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flects the kind of population that we have in the country. It’s important to do.

When I was the Governor of the State of Missouri, I took special

care to try and make sure that we appointed individuals who

hadn’t previously had access to judicial positions. That’s why I appointed the first two women to the Court of Appeals benches in

Missouri, the first black to the Western District Court of Appeals,

the first woman to the Supreme Court, and why I set a record in

appointments during my time as Governor for appointing AfricanAmericans to the bench.

I think it is important that we have individuals—and I think

there are high-quality individuals representing every quadrant of

our culture, and I want to make my understanding and firm belief

in that clear. And I would hope that we would have a capacity to

see in virtually every aspect of our judicial, in every aspect—

scratch the word ‘‘virtually’’—the kind of racial diversity which

makes up America.

So I don’t see any problem in—maybe I’ve forgotten the question.

I would welcome, I would like to see greater diversity in settings

like that.

Senator FEINGOLD. Given your record as you have described it,

surely the fact that there has never been an African-American in

the Fourth Circuit, which I understand is the largest percentage of

any circuit in the country, would trouble you. So I would specifically ask you, to the extent you will be involved, will you support

Roger Gregory’s nomination and press for confirmation by the Senate so he can serve for life, as do the other judges on the circuit?

And, therefore, would you recommend that President-elect Bush

not withdraw the nomination?

Senator ASHCROFT. When the President of the United States announced his designation of me as the next Attorney General, he indicated to me he expected me to give him legal advice in private

and to give it to him. I owe him that respect and that honor.

I think I can say to you that the kind of advice I will give him

is reflected in, is likely to be reflected in the kind of effort that I’ve

made when I’ve had appointing authority. And if the President of

the United States chooses to send that name forward for nomination, I will enthusiastically work to make sure that confirmation is

achieved.

Senator FEINGOLD. Thank you, Senator. I have high hopes for

that one. Now I would like to turn to the Federal death penalty

and the broader subject of the death penalty.

President-elect Bush supports the use of capital punishment, as

I understand you do. While a majority of Americans continue to

support the death penalty, a majority of Americans are also increasingly alarmed by the lack of fairness and reliability in the administration of this ultimate punishment. The system is prone to

errors.

For example, since the 1970’s, our Nation has sent, at last count,

93 people to death row who are later found to be innocent.

Senator, do you acknowledge that our justice system has made

mistakes and that innocent people have been convicted and even

sentenced to death?

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Senator ASHCROFT. I acknowledge that individuals have been

sentenced to death and have been convicted whose convictions have

been overturned, and their convictions and sentences were inappropriate when made.

Senator FEINGOLD. Thank you. And then let me follow that by

indicating that, as you well know, on December 22, 2000, at the

press conference announcing your nomination to be Attorney General, you and President-elect Bush were asked a question about the

Federal death penalty system and whether a moratorium on executions is warranted at the Federal level. And I was relatively

pleased with President-elect Bush’s measured response. He said he

supports the death penalty when it is administered fairly, justly,

and surely.

And in that regard, I would ask if you agree with President Clinton that the gravity and finality of the death penalty demand that

we be certain that, when it is imposed, it is imposed fairly.

Senator ASHCROFT. I think it is a very serious responsibility and

it should be only after a very reliable process of integrity has been

undertaken.

When I served as Governor of the State of Missouri, I had the

rather awesome responsibility, when the death penalty was reinstituted in my State, of being the last evaluator of the fairness

and integrity of the system. Having sat in that setting and having

felt that responsibility, I take very seriously doing what we can to

make sure that we have thorough integrity and validity in the

judgments we reach.

Senator FEINGOLD. Well, in light of that answer, I would ask if

you will support the effort of the National Institute of Justice that

is already underway to undertake the study of racial and geographic disparities in the administration of the Federal death penalty that President Clinton deemed necessary?

Senator ASHCROFT. Yes.

Senator FEINGOLD. Thank you for that. Will you continue and

support all efforts initiated by Attorney General Reno’s Justice Department to undertake a thorough review and analysis of the Federal death penalty system?

Senator ASHCROFT. I thought that’s what you were referring to

in the first instance, but the studies that are underway, I’m grateful for them. When the material from those studies comes, I will

examine them carefully and eagerly to see if there are ways for us

to improve the administration of justice. I have absolutely no reason in any respect to think that we want to turn our backs on the

capacity to elevate the integrity of our judicial system, especially

in criminal matters and, most importantly, in matters that are capital in nature.

Senator FEINGOLD. So those studies will not be terminated?

Senator ASHCROFT. I have no intention of terminating those studies.

Senator FEINGOLD. Thank you, Senator. Now, let me turn to a

third area that you and I have discussed on a number of occasions,

the issue of racial profiling.

At the hearing on this bill last year, I was very pleased to hear

you say that you believe the practice of racial profiling is unconstitutional, and I believe you repeated that several times this week.

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You also said that we need to find out how big the issue is and that

this bill, the one that I sponsored with Senator Lautenberg, represented a good start. You said that with some suggested changes

you could support the bill, and we had some discussions following

that hearing in which we talked about your changes, and, frankly,

we agreed to your changes. But in the end, you never joined as a

cosponsor of the bill. But here we are today.

If confirmed as Attorney General, would you support this bill and

encourage its passage in the House and Senate?

Senator ASHCROFT. First of all, I want to commend you for your

work in this respect. The hearing which you assembled—it wasn’t

my hearing. I was the Chairman and you came to me and asked

me if I wanted to address this serious issue, and I said, please, you

move forward to do it, you know the territory.

It was the first hearing, I believe, in the U.S. Senate on this

practice, and not only were you there but Senator Kennedy participated; Senator Torricelli was present.

I stated at the hearing that I think racial profiling is wrong. I

think it’s unconstitutional. I think it violates the 14th Amendment.

I think most of the men and women in our law enforcement are

good people trying to enforce the law, and I think we all share that

view. But we owe it to provide them with guidance to ensure that

racial profiling does not happen, and I look forward to working together with you to try and find a way to do that. The Presidentelect of the United States, unless I heard him incorrectly in one of

the debates that I was watching, said very clearly that he rejected

the idea that people would be dealt with on the basis of their race.

And in my current position, I can’t endorse any specific legislation,

but I worked with you and you know that I felt good about what

you were doing and that, frankly, I talked to you about specific

items. I believe that I suggested some ways that the bill could be

improved, clarifying that the study is compiled from materials voluntarily collected, which I understand is the intent of the bill.

Senator FEINGOLD. Absolutely.

Senator ASHCROFT. Expanding the kind of data that the Attorney

General reviews and clarifying that nothing in the bill changes any

burdens of proof of parties in litigation.

Senator FEINGOLD. Senator, in light of those points, which we

certainly agreed to, would you support this legislation?

Senator ASHCROFT. Those were the kinds of things that I personally thought were appropriate and would have made the bill, and

did, if, in fact, they finally got done. My recollection is not clear.

I don’t know how I can more clearly say to you that this is a matter

that troubles me. There was an indelible moment in the hearing,

as a matter of fact, and it wasn’t the sergeant that came. It was

the videotape of his son. You had the sergeant who was taking his

son across one of our States stopped twice.

Senator FEINGOLD. I certainly agree with that. Let me just repeat, though, because I think you are going as far as you can to

say you will support this bill. Senator Kennedy said at the hearing

this bill couldn’t possibly be more modest. All it is about is collecting data. If there is any seriousness on your part or the part of the

President-elect about racial profiling, this is a very easy bill to support, and I, again, have high hopes.

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As Attorney General, what other steps would you take to eliminate racial profiling?

Senator ASHCROFT. Well, as it relates to enforcement by the Department of Justice, I would do my best never to allow a person

to suffer solely on the basis of a person’s race. As you well know,

there are responsibilities for enforcement that are attendant to the

Justice Department, and while we have talked about responsibilities of State and local law enforcement officials, it is important

that the Federal Government be leading when it comes to respecting the rights of individuals and the Constitution. And I will do everything I can to make sure that we lead properly in that respect.

Senator FEINGOLD. Will you make racial profiling a priority of

yours?

Senator ASHCROFT. I will make racial profiling a priority of mine.

Senator FEINGOLD. Switching to another area, should a law

called the McCain-Feingold law pass and come to the President’s

desk and he signs it, will you vigorously support that law in your

role as Attorney General in terms of it constitutionality, your role

in advising the Solicitor General?

Senator ASHCROFT. Well, there are lots of things that I disagree

with that I believe it would be the responsibility of the Attorney

General to defend vigorously in court. I have to look at specific legislation with that in mind. I disagreed in policy on that bill, but

I believe it’s most—it would be hard for me to imagine that the bill

does not survive the kind of scrutiny which would provide an instruction to the Solicitor General to defend the bill in every respect.

I failed to support the bill because of policy reasons and reservations about the Constitution, but I had not concluded that it

couldn’t survive muster. And I would expect, depending on the bill,

how it comes out, it’s my responsibility to defend the enactments

of the U.S. Senate.

There is another little caveat on that. If the enactment of the

U.S. Senate seriously impairs the prerogative of the Executive, that

presumption in favor of the Senate and the House action abates

somewhat, and that was true as it related to this Justice Department, which had a different view of the line-item veto, as did many

Members of the Senate and House. Pardon me. I’ve misspoken

again. I was thinking of my time as a Senator, and I correct myself.

I’m sorry to have done that.

But I would expect to defend the laws enacted by the Congress

vigorously, and I wouldn’t see any reason to expect that McCainFeingold—or Feingold-McCain, pardon me, sir—would be any different.

Senator FEINGOLD. Thank you, Mr. Chairman.

Chairman LEAHY. Thank you, Senator.

As I announced earlier, the distinguished Senator from Iowa is

wearing his hat as incoming Chairman of the Finance Committee.

He has been at the hearing for the Secretary of the Treasury this

morning, and he has come back with us. I understand there is no

objection for him to ask his questions at this point.

Senator GRASSLEY. First of all, to the Chairman and to my colleagues allowing me this special privilege to probably go out a turn,

I appreciate very much the opportunity and want to congratulate

the Attorney General designee on the forthrightness with which

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you have answered questions thus far. I have only heard more on

television than I have heard in person, but I think you are doing

what needs to be done and that is to show your ethical and moral

uprightness, and that is to do what the oath of office requires. You

are trying to quell the concerns of the members of this Committee,

as you should, and I think that you are doing it adequately. I hope

as time goes on, more members will feel your sincerity.

First of all, there have already been some questions on antitrust

asked. One was on airlines, mergers, and the enforcement of the

antitrust laws in regard to that. So I am not going to get into that

area, but I do want to associate myself with them. I think it was

Mr. Kohl, my staff told me, that had asked those questions. I want

to associate myself with those concerns. I am sure that those are

concerns, being from small-town Missouri as you are, that you understand the same concerns that we have in Iowa.

I would like to start with the issue of agricultural antitrust, agribusiness antitrust. Here again, I think serving with you in the U.S.

Senate and knowing a large part of Missouri’s economy is agriculture, I am sure you have sympathy toward some of the things

I am going to ask, but at the same time, I know that we have antitrust laws that are 110 years old. To some extent, I think that they

need to be amended. That is not really so much the issue I am

going to discuss with you, but how you look at the existing law.

I am extremely concerned about increased agribusiness concentration, reduced market opportunities, obviously fewer competitors in the marketplace, and then, consequently, the inability of

farmers and producers to obtain fair prices for their products.

I have also been concerned about the possibility of increased, collusive, and anticompetitive activity, and I know that the farmers

from Missouri are also worried about these issues and that you

share the farmers’ concerns about competition in agriculture.

The Antitrust Division of the Justice Department enforces Federal antitrust laws. The current administration, while it has paid

lip service to farmers, really hasn’t dedicated time and resources to

agriculture competition issues.

So I would like to get a commitment from you as much as you

can give me, understanding you work for the President of the

United States, that the Antitrust Division under your watch will

pay heightened attention to any possible negative, horizontal, and

vertical integration implications of agribusiness mergers and acquisitions that come up for review before your Department.

I would also like a commitment from you that the Antitrust Division will aggressively investigate allegations of anticompetitive activity in agriculture, and that would include agribusiness, a step

above the producer of agriculture.

Could you give me an assurance that the agricultural antitrust

issues then—this would just be one question—would be a priority

for this Department of Justice, your Department of Justice?

Senator ASHCROFT. Well, I thank you for your leadership in this

area. You rightly mentioned that as a neighbor when I had the

privilege of serving in the Senate some of the difficult times that

producers have faced because of consolidations and mergers which

have limited the sources or the places into which they can sell their

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products have been a real challenge, and my record is pretty clear

on this.

I sponsored legislation to try and elevate the understanding of

the Antitrust Division in the Justice Department about agricultural

issues, legislation that would have placed people solely responsible

for focussing on agriculture in that position.

I also would indicate that I am aware of the fact that there are

other agencies that act in this respect. The Packers and Stockyards

Act needs enforcement, and we need the right personnel, I think,

and at least that has been my position legislatively when I had the

privilege of being in the Congress.

I thank you for framing your question and with the understanding that I will be part of an administration, and when it comes to

policy issues, I will be guided by the administration, but this is a

law enforcement issue and I think it is fair for me to say that I

will enforce to the best of my ability and with a perspective that

understands some of these challenges that I don’t think have been

thoroughly understood previously in the antitrust evaluations,

merger evaluations. At least I will want to make sure they are understood. Whether or not they have been previously is a matter for

debate.

I want people to—who are assessing proposed mergers and consolidations to not only look at the consumer for impact, but to look

at the producer for impact because I think competition has to be

viewed on a pretty broad scale. It is with that in mind that I will

try to work with the antitrust laws to make sure that we continue

to have a competitive marketplace for agriculture.

Senator GRASSLEY. I have already written to the present Attorney General and the Antitrust Division about my concern about the

Tyson’s-IBP merger, and I know that you aren’t there yet, you can’t

do anything about it, and all I can do is urge adequate enforcement

of the laws. So I would ask you to take a special look at and, as

best you can today, assure me that the Antitrust Division under

your watch will carefully scrutinize this specific transaction so that

farmers and consumers can be confident that competition will not

be harmed.

Senator ASHCROFT. I am pleased to say to you that I will welcome your letters when I am—if I am confirmed and if I have the

privilege of serving as Attorney General, and that I will give attention to the enforcement of these laws.

I don’t want to make a statement in this hearing today which

would affect the value of these entities in any way— Senator GRASSLEY. I know you can’t.

Senator ASHCROFT.—Positive or negatively as they are significant enterprises, but my intention is to enforce the law relating to

antitrust effectively and appropriately, and can assure you that if

you call upon me for status reports or advising me to give matters

complete and thorough attention, I will welcome those communications.

Senator GRASSLEY. You referred to some special attention that

you would give agriculture the extent to which it is appropriate in

the table of organization. Right now, there happens to be a position

in the Antitrust Division that focusses specifically on agricultural

antitrust issues. This position was created by the former Assistant

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Attorney General, Joel Klein, last year. Would you retain that position?

Senator ASHCROFT. You know, I’ll be very eager when I get to the

Department to assess the way the resources are allocated, and I

don’t want to start to redraw or reinforce the organization chart as

it now exists. It would be presumptuous on my part. I have not

been confirmed.

I can assure you that I will devote the kind of resources that are

necessary to address merger and consolidation issues in the agribusiness community.

Senator GRASSLEY. Some time ago, I requested the General Accounting Office to review the Packers and Stockyards Act enforcement efforts to the Agriculture Department’s Grain Inspection

Packers and Stockyards program. That is referred to by the acronym, GIPSA.

The General Accounting Office found that the Clinton administration, despite official warnings and internal recommendations

made both in 1991 and then again in 1997, had not made critical

changes to GIPSA’s administrative structure and staff as recommended in these two previous reports, one, a previous General

Accounting Office report, a second one, a report by the Inspector

General within the Department of Agriculture. So then we have a

General Accounting Office report as much as 8 years later saying

you didn’t do what we told you to do way back then.

As a consequence, we find the U.S. Department of Agriculture

being very ineffective in carrying out its statutory responsibilities

to prevent anticompetitive practice in the livestock industry. You

happen to have joined me in introducing a bill which mandated implementation of the General Accounting Office’s report’s recommendations to strengthen the U.S. Department of Agriculture’s

Packers and Stockyards program within a 1-year timeframe. So

that is law.

One of the legislation’s provisions requires that what hopefully

will be your Department, the Justice Department, is to assist the

U.S. Department of Agriculture in investigating livestock competition violations and enforcing the Packers and Stockyards Act during the timeframe of implementing those recommendations. Would

you be sure that your Justice Department carries out the requirements of that law?

Senator ASHCROFT. Yes.

Senator GRASSLEY. In addition, could you assure me that the Department of Justice will consult with the Packers and Stockyards

Division as it formulates effective competition policies and procedures to enforce the Packers and Stockyards Act?

Senator ASHCROFT. Yes.

Senator GRASSLEY. Now I would like to move on to another interest of mine because I got legislation passed in this area, maybe 15

years ago, and this law called the False Claims Act is always under

attack. This is not something to answer, but I want you to be

aware of people in the health care industry, people in the defense

industry who will be trying to, through your Department, get you

interested in amending this Act, and if they follow the procedures

of the last 7 or 8 years that they have been trying to do this, as

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simple as it might sound, the end result is gutting the impact of

this legislation.

This legislation, for instance, in the last month or so produced an $843-million recovery of fraudulent use of taxpayers’ money that

went back to the Treasury. Well, I had talked to you privately

about this in my office, and so I said I would ask some questions

for the record. This Act is under constant attack.

Now, the Justice Department can file its own suits or you can

join qui tam-type suits under this legislation. Thus, you as Attorney General would be in charge of a good bit of legislation involving the False Claims Act, in fact, all that you want to be involved

in. What you don’t want to be involved in, a private citizen can

bring, and they can do that even if the Justice Department does

not intervene and then, consequently, they are entitled to a share

of any judgment or settlement as an encouragement for them to

bring forth information about the taxpayers’ money being wasted.

I would ask one question. I am concerned that the key people

that you will include on your team, meaning the political appointees of the Department, have a positive attitude toward the

False Claims Act. I am referring to the Deputy Attorney General,

the Associate Attorney General, the Solicitor General, and most importantly, the Assistant Attorney General for the Civil Division.

Before I ask the question, at times during the last 8 years that

I asked these very same people who were being appointed by President Clinton, the constitutionality of the Act had not been tested

by the Supreme Court. It has been tested, and the constitutionality

upheld. So, previously when I asked questions, I was asking them

if they would defend the constitutionality of it. Soon, the message

got through, and I got the message that they would defend it and

they did defend it. Consequently, thank God, the courts backed it

up.

So I am asking you, now that we have the constitutionality of the

False Claims Act in place, that you will simply see that your people

don’t do any destructive action to what is already constitutional.

Senator ASHCROFT. Senator, I believe that the laws in place, the

constitutionality has been affirmed, and we would treat the law

with respect.

Senator GRASSLEY. Thank you.

On bankruptcy, President Clinton vetoed a very important bankruptcy reform bill at the end of the last Congress. Senator

Torricelli and I introduced that in a bipartisan way. It passed with

a veto-proof margin, but it was pocket-vetoed. So we didn’t have a

chance to override it.

I hope to reintroduce that legislation in the next few weeks. I anticipate that bankruptcy reform will continue to enjoy broad support in the Congress. Could I count on you to be an ally in getting

the executive branch to support this bill and to work with us in

Congress to finally get it enacted?

Senator ASHCROFT. Senator, as you well know that during my

time as a U.S. Senator, when I had an enactment responsibility,

not just an enforcement responsibility, I supported the legislation

and worked to achieve its passage.

In terms of determining an agenda, I will work closely with the

President of the United States, but I will advise him privately to

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the best of my ability to help him achieve the agenda that he pursues, and if the President were to agree to pursue this course of

action, I would have no difficulty whatever in advancing and supporting this measure.

Senator GRASSLEY. Could I please ask one question—

Chairman LEAHY. Of course.

Senator GRASSLEY.—And it will just be a short answer? Because

it is on bankruptcy, but—

Chairman LEAHY. The Chair will give extra time. Go ahead.

Senator GRASSLEY. Well, just a little while.

Now, without the reform bill, the Justice Department, through

the Executive Office of the U.S. Trustees, has the power to dismiss

bankruptcies that are abusive under Section 707(b) of the Bankruptcy Code. This administration hasn’t made this a priority.

Would you direct the Executive Office of the U.S. Trustees to make

enforcement of Section 707(b) of the Bankruptcy Code a priority?

Senator ASHCROFT. Senator, this is not an area of expertise for

me, and I would have to study this and confer with you and ask

for advice from people in the Department before I could make a determination about it. I simply have not studied this, and this is an

‘‘I don’t know’’ answer.

Senator GRASSLEY. OK. What I will do is I will follow up with

you because you will study it, I know, and then we will be able to

discuss it.

Senator ASHCROFT. If you ask me to study it, Senator, I can assure you that I will study it.

Senator GRASSLEY. Would you please study it, and would you discuss it with me again?

Senator ASHCROFT. I would be delighted to discuss it.

Senator GRASSLEY. It doesn’t necessarily have to be before I vote

for you for Attorney General.

Senator ASHCROFT. Well, that’s—that is good to know.

Chairman LEAHY. In case the nominee is keeping count.

I thank the Senator from Iowa. I know he has tried to juggle two

important things, and I appreciate it.

I will go to one more Democrat and one more Republican, and

we have one former colleague and one current colleague here. We

will have the two members do their questioning. It will be Senator

Schumer and Senator DeWine, and then we will hear from

Senator—

Senator SESSIONS. You got two of them down here.

Chairman LEAHY. What?

Senator SESSIONS. Two of us on this end.

Chairman LEAHY. No, I understand that, but I am just trying for

our schedule—

Senator SESSIONS. I can’t hear very good. I’m sorry.

Chairman LEAHY. I’m sorry. My plan is, so everybody here can

understand and plan accordingly, we will have Senator Schumer,

Senator DeWine, then we will hear from Senator Collins and

former Senator Danforth.

Senator Schumer, you are recognized, and then we will break for

lunch.

Senator SESSIONS. When do I get to talk?

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Chairman LEAHY. Well, we want you to be special. So we thought

probably as soon as we come back from lunch. We still have Senators to go. I mean, we have Senator Durbin hidden down here at

the end, too. You have two more down there, and Senator Cantwell

and Senator Brownback. Trust me, you all are going to get a

chance. This is not going to be an early evening, I would suggest

to everybody here, but when we do break, we will take a 1-hour

break.

Go ahead, Senator Schumer.

Senator SCHUMER. Well, thank you, Mr. Chairman, and thank

you, Senator Ashcroft.

You know, Senator, I sit here and listen to the hearing, and my

jaw almost drops. Senator Ashcroft believes Roe v. Wade is the settled law of the land. Senator Ashcroft believes that the assault

weapons ban should be continued.

You know, Senator, we fought a lot of these battles in the Senate

over the last 2 years. Where were you when we needed you?

Anyway, let me ask a few more of these specifics to flesh out

some of these because they are very important. The first question

is, when did the law become settled, I guess, in your mind? I guess

in 1998, you introduced, along with Senators Helms and Smith, a

resolution calling for an amendment to the U.S. Constitution to

ban abortion even in the cases of rape and incest, and the amendment would also outlaw several of the most common contraceptive

methods.

In that same year, you said, ‘‘As a legal matter, the absence of

any textual foundation’’—this is a quote—‘‘for the trimester framework established in Roe has resulted in an abortion jurisprudence

that is marked by confusion and instability. It demonstrates the

dangers of building a legal framework on the quicksand of judicial

imagination rather than the certainty of constitutional text.’’ So I guess the first question that gnaws at me some is in your

testimony, you said it was settled law, and yet, fairly recently, you

were fighting hard to change it, to overturn a position I disagree

with strongly, but respect your view on it. Can you explain the evolution in the belief?

Senator ASHCROFT. Thank you for the question, and we do disagree on this. Obviously, this is one of those questions upon which

I believe reasonable people can disagree.

Frankly, if the law weren’t settled, one wouldn’t need a constitutional amendment to change it if one were wanting to change it,

and so the fact that I proposed a constitutional amendment indicated to me that it is not something that is going to be adjusted

in another way.

In so doing, that was part of a role that I had as a member of

the Senate as an enactor of the law rather than an enforcer of the

law. There are lots of settled laws, and our constitutional amendments are designed for the specific purpose of overturning settled

laws.

I think the Court has been signalling an increasing—and this

makes reference to—I am forgetting which of the members of the

panel asked me earlier, but in its most recent case, the Court signaled—it denied certiorari for a reconsideration, and I think the

Supreme Court has said—that is the Stenberg case.

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Senator SCHUMER. Right. That is what I think, too.

Senator ASHCROFT. That it said we don’t want to be bothered

with this. Frankly, I think it is not wise to devalue the credibility

of the Solicitor General in taking things to the Court which the

Court considers settled, and that is why I explained my other answers the way I did.

Senator SCHUMER. I appreciate the answer.

Senator ASHCROFT. I just want to indicate that if you think I

have changed to believe that aborting unborn children is a good

thing, I don’t, but I know what it means to enforce the law, and

I know what I believe the law is here and so—and I believe it is

settled.

Senator SCHUMER. So let me ask you this, just to follow up. So,

if the Solicitor General came to you when you were Attorney General and said I would like to argue a case to overturn Roe, for instance, in the Nebraska case, in the Stenberg case, I think it was

Justices Thomas and Scalia who in dissent—it was just a 5-to-4

case—said encouraged more cases to overturn the law. Would you

urge the Solicitor General, or would you now allow the Solicitor

General who would be under your jurisdiction to bring such a case?

Senator ASHCROFT. I don’t think it is the agenda of the President-elect of the United States to seek an opportunity to overturn

Roe, and as his Attorney General, I don’t think it could be my

agenda to seek an opportunity to overturn Roe. Senator SCHUMER. And would that apply if, let us say—because

that was a 5-to-4 decision, the Nebraska case, the Stenberg case,

but let us say one of our Supreme Court justices stepped down and

a new appointment was made and it was at least speculated or

viewed that that new justice had a different—and one of the justices who stepped down would be one of those in the 5 majority— that this new justice would have a different view, would have sided

with the dissent. Would you still urge the Solicitor General to not

bring the case?

Senator ASHCROFT. Well, as I said before, I don’t think it is the

agenda of this administration to do that, and as Attorney General,

it wouldn’t be my job to try and alter the position of this administration.

Senator SCHUMER. Let me ask you a second one related. Let us

say that Governor Thompson becomes the Secretary of HHS, and

he seeks your legal advice on banning stem cell research, research

where we have had great divisions about, but research extremely

important to hundreds of thousands of people and their families

with Parkinson’s disease and other diseases. Would you urge Secretary—Governor Thompson, but then-Secretary Thompson, given

that Roe v. Wade is settled, to keep, to continue to allow stem cell

research to continue?

Senator ASHCROFT. I will provide him the best assessment and

instruct the Department of Justice to provide him with the best assessment of the law as it exists upon which he can base a decision

within the parameters of the statutory framework guiding his activity.

Senator SCHUMER. But pursuing that a little, sir, if I might, if

you believe that Roe is settled and certainly stem cell research

would fall within the confines of the first trimester, then wouldn’t

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your advice have to be to continue stem cell research, and why

couldn’t you tell us that here today? If not, then I would like to

know what Roe being settled means.

Senator ASHCROFT. The way I answered the question a moment

ago is the way I want to answer it again, but I will answer it in

these words. I will be law-oriented and not results-oriented. I will— that is my pledge as I move toward the Attorney General’s office,

and, of course, I can’t make good on—I don’t want to be presumptuous. I understand that there is a confirmation process, but I will

provide my best advice regarding the law, including the law as expressed by the Supreme Court in Roe v. Wade. Senator SCHUMER. So, just to pursue it a little bit further—I am

just trying to flesh things out here. I am not trying to put you on

the spot. These are issues of great importance to so many of us. If

the legal opinion, the predominant legal opinion was that stem cell

research was allowed, was part of the settled law of Roe, that

would be your guiding—that would be your guiding light here, not

an ideological belief that we shouldn’t allow it?

Senator ASHCROFT. I will give them my best judgment of the law,

and if the law provides something that is contrary to my ideological

belief, I will provide them with that same best judgment of the law.

Senator SCHUMER. OK. I don’t think I can push you any further,

although I wish the answer would be a little clearer, but— Senator ASHCROFT. I am just not going to issue an opinion here.

Senator SCHUMER. I understand.

Senator ASHCROFT. I will with all deference— Senator SCHUMER. No, I made it hypothetical that if the law

would agree.

Let me go to another one. The President asks you advice whether

rape victims should be allowed the right to choose. It comes up in

some—in some context that we probably—you know, I don’t want

to—I don’t think it is necessary for the purposes of this question

to outline the context. Would you advise him that rape victims

should be continued to be allowed their right of choice, even though

ideologically you would be opposed because, again, Roe is the settled law of the land?

Senator ASHCROFT. If he is asking me for legal advice, I will provide him with my best judgment. It will not be results-oriented. It

will be law-oriented. And I will also answer the President in private, as he has requested me to do.

Senator SCHUMER. Right.

Senator ASHCROFT. I don’t want to be less than cooperative, but

I don’t want to try and go through a list of all the potential questions the President might ask me and try and tell in advance someone other than the President what answer he is going to get.

Senator SCHUMER. Right, but the reason—and I understand that

and appreciate your desire to do that. Of course, though, when you

say Roe is the settled law of the land, that has lots of different implications that would be quite contrary to the advocacy views that

you had while you were U.S. Senator. We would agree to that,

right?

Senator ASHCROFT. Well, it’s very clear to me that the settled

law of the land protects rape victims. I mean, it is clear that the

settled law of the land gives virtually anyone—

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Senator SCHUMER. That’s all I need to hear.

Senator ASHCROFT.—Any opportunity they want to, to have an

abortion. I mean, it is an unrestricted right.

Senator SCHUMER. OK.

Senator ASHCROFT. And I would advise him in that respect as to

what the law is.

Let me ask you a series now similarly on gun control. I was very

glad to hear that you would support the continuation of the assault

weapons ban, which Senator Feinstein carried in the Senate and

I carried in the House, so it is obviously important to me.

I would just like to ask, in terms of the Second Amendment—and

while some might not believe it, I believe in the Second Amendment. I do not agree with those who think the Second Amendment

should be interpreted almost in a non-existent way just for militias,

and then we should broadly interpret all the others. But just like

you can’t scream ‘‘Fire’’ in a crowded theater—that is a limitation

on our First Amendment rights—there are limitations on the Second Amendment as well. And some of my friends believe there

should be no limitations, and that is where I disagree with them.

But let me ask you this, these four issues, do you think any of

them violate the Second Amendment? The Brady law?

Senator ASHCROFT. No.

Senator SCHUMER. The assault weapons ban?

Senator ASHCROFT. No.

Senator SCHUMER. I think you have answered that.

Licensing and registration, which many States obviously have

now.

Senator ASHCROFT. I don’t—I don’t believe that—if the Senate

were to pass it, I would defend it in court and argue its constitutionality.

Senator SCHUMER. Argue for its constitutionality?

Senator ASHCROFT. Yes, sir.

Senator SCHUMER. Thank you. Now, how about just your own

personal view, in a different—you know, on closing the gun show

loophole, the Lautenberg amendment. I know you supported a 24-

hour closing, but many of us supported a 72-hour because we

thought at gun shows 24 hours wasn’t enough to do an adequate

check, particularly since most of them occur on the weekends.

Would you support a 72-hour closing of the gun show loophole?

Senator ASHCROFT. You know, I believe in closing the gun show

loophole. What I would like to see us is to improve our capacity to

respond to inquiries a lot more rapidly. I think it’s pretty clear that

at least my personal view has been for the past several years that

we need to fully implement our ability to provide instant checking.

And I think that’s the best way of handling that, and I think doing

that is something that’s achievable.

So my approach to this would be to have the Department exercise as much of its energy as it can to close the loophole by virtue

of improving our capacity to have instant checks that are reliable,

valid, and workable.

Senator SCHUMER. And I agree with you. I have no problem with

insta-check when it is available and when it is working. But in the

past, some, at least, have used the lack of insta-check availability

in many States—some have used—

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Senator ASHCROFT. I think when—well, pardon me.

Senator SCHUMER. Let me just finish and flesh out and then we

will go to the next one. But many have used or some have used

the lack of availability of insta-check in many States to stand in

the way of a law, a 72-hour law, longer waiting period, because you

just couldn’t get the checks out on the computer that quickly because State records were not up to date.

So, again, let me repeat, if we found that in a good number of

States—and that is the case—that the insta-check system were not

yet available, would you support a 72-hour wait for closing the gun

show loophole, which most of us regard as a rather modest step?

Senator ASHCROFT. Well, the problem with the 72-hour wait is

that gun shows frequently last about 72 hours, and that’s been a

problem in terms of saying that if you’re going to provide no one

can buy a gun, that tension I think is one that I’d want to respect,

and I’d try and accommodate that. It’s not my desire to shut down

this setting.

If I’m not mistaken—and I might stand correction here—I think

when the juvenile justice bill came back, it had the Lautenberg

amendment in it, and I think I voted for the juvenile justice bill

in that setting. And that may be an answer to that question.

Senator SCHUMER. I think, Senator—and, obviously, we don’t

want to hold you to every little bit, but I think it never got back

from conference. Maybe Senator Leahy—

Senator ASHCROFT. Pardon me. I didn’t mean get back. I think

I meant—they’re telling me I meant final passage. And on final

passage, I did vote for it and it had Lautenberg in it.

I think what—may I just add this little bit—

Senator SCHUMER. I think what—

Senator ASHCROFT. What’s clear—I voted for it, I think, in that

setting. What is—and I’m not sure about that. But what I am sure

about is that if it’s passed, I’ll defend it. And I’ll not only defend

it, but I’ll enforce it. And I’ll enforce it vigorously.

Senator SCHUMER. But in terms of your own opinion, do you

think that this 72-hour check—you voted, I think—and the record

could correct me as well. And I don’t want to—you know your

record better than I do. I think you may have voted against the

amendment but then voted for the final bill.

Senator ASHCROFT. I think that’s correct.

Senator SCHUMER. The staff guy is shaking his head yes, so I

would trust him.

Senator ASHCROFT. Well, you can see a lot better than I can. You

don’t have to turn around to look at him, and I do. That’s your

hard luck, because I don’t have to look at him, only in rare instances.

Senator SCHUMER. So has your position evolved any on the 72-

hour check?

Senator ASHCROFT. Well, I guess what I’m saying is that my position, as I leave the enactment arena, was mixed. I probably, as

a stand-alone provision, voted against it but wasn’t so opposed to

it when it came back in the final product that it would stop me

from voting for a very important bill. I guess that’s a little bit of

an academic question now. The voters of Missouri settled my abilVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00165 Fmt 6601 Sfmt 6601 C:\HEARINGS\76342A.002 SJUD4 PsN: SJUD4
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ity to vote on those bills when I was not re-elected to the Senate.

And I would vigorously defend and enforce the measure.

Senator SCHUMER. And almost from the point of view of argument, it just follows from the argument you would not recommend

the President veto a bill that had the 72-hour gun show loophole

in it? Given that you voted—

Senator ASHCROFT. I would advise—

Senator SCHUMER.—For it in the past.

Senator ASHCROFT.—The President to the best of my knowledge

on legal matters. They will not be results-oriented. They will be

law-oriented advices. But I will give those to him upon his request,

and I really don’t want to try and publicly start to hypothetically

discuss all the potential questions he might ask me and try and deliver the advice here first. I just don’t think that’s proper.

Senator SCHUMER. Thank you.

Chairman LEAHY. The Chair would note for the record that the

juvenile justice bill, which passed overwhelmingly from the Senate,

went to conference, but—other than a symbolic meeting, the conference Committee never met, and the juvenile justice bill died at

the end of the Congress. The press accounts, which I believe are

accurate, said that it died because it closed the gun show loophole.

If the gun show loophole provision was taken out, the conference

would be allowed to go forward, but with it in, the various gun lobbies said that we would not be allowed to pass it, and—

Senator SESSIONS. Mr. Chairman, just a little spin on that a little different. Senator Hatch had a gun show loophole bill that a

number of people favored, and I think it passed the first time in

a close vote. The Lautenberg amendment passed, the full Senate

voted, and as I understand it, Senator Ashcroft voted to support

the Lautenberg amendment, and it never came out of conference

because that amendment was rejected by the House. The House

would not accept it, and your side would not agree to any compromise, and the good juvenile justice bill that a lot of us worked

on never came out and up for debate. That’s my view of it. I guess

everybody has a different view.

Senator HATCH. Let me just end it by saying that the fact of the

matter is we couldn’t get a consensus to pass it. It was that simple,

and let’s all work to try and get something done this next year.

Chairman LEAHY. Well, the fact of the matter is we never had

a conference, so we couldn’t seek a consensus—

Senator HATCH. Well, because we knew it was a waste of time.

Chairman LEAHY. I have never been able to predict votes that

well.

Senator HATCH. I have been pretty good about it.

Senator KENNEDY. Regular order. Can we have regular order,

Mr. Chairman?

Chairman LEAHY. We haven’t had it yet. Why should we start

now?

[Laughter.]

Chairman LEAHY. The distinguished senior Senator from Ohio.

Senator DEWINE. Mr. Chairman, thank you very much. Senator

Ashcroft, the good news is when you get to me, you are getting

pretty close to lunch here.

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Let me just say that I think most of us here can agree—we are

talking about the juvenile justice bill, of which 95 percent of that

bill was, frankly, not very controversial. Let’s hope that we can get

that juvenile justice bill, passed this year Mr. Chairman.

Senator, what I would like to do in the time that I have is talk

about a few issues that I know are going to be coming in front of

you as Attorney General. These are issues in which I have a particular interest, and I think you do as well. To save time, let me

go through them. There are four or five of them. And then if you

could comment at the end, I think it would probably be the simplest way to do this.

The first has to do with what is referred to as international parental kidnapping, an issue that I am very concerned about and an

issue that has received a lot of publicity in the last few years. And,

quite frankly, to be candid, it is an area where I don’t think that

the current Justice Department has been aggressive enough, and

this is something I have said publicly with the current Attorney

General. I would hope that you, as Attorney General, would be

more aggressive in this regard. What are we talking about? We are

talking about a situation where a U.S. citizen marries a foreign national, they have a child, and they separate or get divorced. One

day the American citizen wakes up and the child is gone, and the

other parent is gone. The other parent has gone back to his or her

country of origin.

Addressing these situations has not been a priority of the Justice

Department. I would hope it would be with your Justice Department. I think it is often an issue of neglect. It is a question of not

setting the right priority. And, often it is a question of ignorance

or just lack of understanding of the issue. I think it can be remedied by training assistant U.S. attorneys, and the Justice Department setting a priority. There also should be coordination with the

State Department because it is an issue that the State Department

hasn’t aggressively in dealt with either. This is number one.

Number two is an area that you and I have worked on in the

past, and that is a setting of priorities for the Justice Department

in regard to gun prosecutions. I am talking now about a case where

we have a convicted felon who uses a gun or owns a gun, which

is against Federal law today—however, he goes in prosecuted. I

would hope that the Ashcroft Justice Department would make this

is a priority to go after these individuals as the Bush administration did.

A related area in regard to guns is when guns are used during

the commission of a felony. I can’t think of anything that is more

important to the safety of the public than to get people who use

guns during the commission of an offense off the streets. The U.S.

attorney can play a very unique and special role in that regard,

and I would hope that that would also be one of the priorities of

your administration.

The third area is what I refer to as crime technology. It is an

area that I have been involved in for the better part of a decade.

It is very simple, it is very basic, but it is very important, and that

is to make sure that we drive the high technology resources down

to local law enforcement. We want not just the FBI but local law

enforcement to have access to good DNA work, access to automated

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fingerprints, access to ballistic comparisons, and access to good

criminal records. This is the basics of law enforcement. It is something where the Federal Government can play a unique role. Only

the Federal Government really can give the assistance to all local

jurisdictions with the understanding that what happens in Xenia,

Ohio, in regards to automated criminal records or automated fingerprints will affect the ability of the Missouri police to solve a

crime if that defendant happens to go from Xenia to St. Louis.

This is an area that you and I have been involved. We passed

the Crime Identification Technology Act several years ago, which I

wrote to provide an umbrella authorization to get this done. I

would just ask you to comment on that, and hope that when it

comes time to present your budget you would look at that very favorably. It is basic law enforcement that will, in fact, make a difference.

The fourth area is the issue of mental health. We are seeing

more and more people in our criminal justice system who have

mental health problems. It is something that every law enforcement officer in this country understands and knows about. Part of

it has to do with the deinstitutionalization of the mentally ill that

has occurred in the last few decades. Part of it is the nature of society. But it is something that I think in our criminal justice system

we have to address.

We were able to pass last year a bill that I was involved in writing, which provides assistance to local courts in regard to mental

health. I wonder if you could also address this one.

Finally, I will go back to an issue that has been raised by Senator Kohl and also has been raised by Senator Grassley and several

of my other colleagues, and that has to do with the antitrust enforcement. As you know, I am the Chairman of the Antitrust Subcommittee. The ranking member is Senator Kohl. I guess that

means that Senator Kohl is the Chairman this week. He and I

have worked very, very closely together on antitrust issues. We

think they are very, very important. We think that ultimately they

determine our ability to compete in the world and our ability—one

of the things that makes us different as a country from other countries is that we have good antitrust laws.

I am particularly concerned—and I am not going to ask you to

comment about this because I know that this is something you are

going to have to study, and I also know it is something you are

going to have to work with whoever is the new head of the Antitrust Division of the Justice Department. But I am very concerned

about the consolidation in the aviation industry. This is something

that I think we have to look at it. It is, I think, a potential direct

threat to consumers when we are talking about getting down to potentially just three, possibly, major airlines in this country, or four.

We have some real competition issues. And so I would just use this

opportunity, again, not to ask you to comment on it, really, because

I don’t think it is fair for you to comment at this point, but just

maybe to put you on notice this is something that I am going to

be looking at. We are going to hold hearings on our Antitrust Subcommittee within the next few weeks, and we are going to take a

very, very close look at that.

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So, John, those are five issues that I think clearly you are going

to be dealing with, five issues that I think as the Attorney General

you will be confronting, and I would just like for maybe some brief

comments in the time you have remaining to tell us maybe some

thoughts about each one of those.

Senator ASHCROFT. Thank you, Senator DeWine. I must say that,

starting with the first issue, the international parental kidnapping

problem is one that you have highlighted and you have brought to

the attention of America in ways that have been very helpful. I

think many of us would be in a circumstance not to be very affected by this, and it would be an easy thing to just, I suppose,

overlook. And I comment for your work there. I would be very

pleased to work with you in this respect and the idea of making

sure that where interagency cooperation could be beneficial, either

through the Department of State or other departments of the Government, to remedying these tragic circumstances.

Since it is not as prevalent as some other problems, I guess some

folks don’t view it as a serious problem. It reminds me a little bit

of Ronald Reagan’s definition of a recession and a depression: It’s

a recession if your neighbor loses his job; it’s a depression if you

lose your job. If it’s your child here, this becomes a national issue

very quickly. And I thank you and look forward to working with

you on it. And to the extent that we could enlist other aspects of

the Federal bureaucracy and the Government to act with us to do

what’s right, I’m very pleased to confer with you.

Gun prosecution, the prosecution of gun violence, is very important to me because I think it’s essential to public safety. What I

think we have is clear indication and evidence that if we prosecute

gun crimes, we have the greatest effect in elevating the safety and

security of citizens in this country. And it’s one thing to have a law

on the books that prohibits certain kinds of gun purchases, and if

you have hundreds of thousands of gun purchases that are denied

because of it, but then you don’t prosecute the people who were denied the purchase for making the illegal attempt, we really haven’t

done anything but force them into the illegal gun market.

If my memory serves me correctly, there is an Indiana situation

where someone had attempted to make an illegal purchase, not

prosecuted, went into the illegal market, acquired a firearm, and

shot an African-American individual leaving church. That case

sticks in my mind.

I think the context of the gun purchase requirements are very

important, and in a technical sense, those are against the law and

they’re criminal acts. But people who actually perpetrate crimes

using guns obviously need to be a focus of our enforcement effort.

And the most famous of these is the Project Exile, at least for me,

best known for me. As you drive across the river here, you see the

billboard that says you are on notice, if you use a gun in the commission of a crime, elevated penalties are going to be a consequence

for you.

And it’s not just in Richmond, Virginia. I worked hard when I

was a Member of the Senate to get special funding, additional

funding for U.S. Attorney Audrey Fleisig in St. Louis because she

has a project called Project Cease Fire. I can’t answer for the details of all these projects, but I think it’s largely the same thing.

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You deal affirmatively, aggressively, and constructively to say we

will prosecute those who commit crimes using firearms.

The third issue—and I look forward to that—I think is the crime

technology issue. During my time as Governor and Attorney General, we sought through the creation of agencies and capacity capability in our State the ability to integrate our effort in a national

coordination of data so that we could apprehend criminals. This is

a matter of great concern to me because our society is so mobile,

and it even has concerned me as it relates to juveniles, because in

my home State of Missouri, our population is focused on the borders. Kansas City is one of the two largest cities, St. Louis is the

other, and we share those borders with other States. And people

move back and forth across those borders, and the interstate availability of information is a very important thing. And to have it

available, that you can—that kind of moving from one jurisdiction

can take place on a bicycle. But criminal activity can move from

one part of the country to another part of the country now very

easily. And whether it’s AFIS, an automated fingerprint identification system, or whether it’s the next generation, I think, with DNA

identification, frankly I think not only for the apprehension of

criminals but for the establishment of innocence and guilt with

greater certainty, I think these are very important matters that relate to civil liberties as well. I think for our system to elevate the

integrity and the likelihood that we get the truth when we make

a conclusion is very important.

The mental health area is an important area. Immediately I

thought of Senator Feinstein’s comprehensive methamphetamine

anti-proliferation measure which she and I had the privilege of

working together on. It was a $55- million-a-year program, but a

significant part of that was for treatment. And when I talk to the

prosecutors and the justice officials at the State and local level,

they tell me that 70, 80 percent of all the people that we incarcerate for criminal behavior committed crimes because they were involved with drugs and substance abuse of one kind or another. And

I think if we don’t understand that remediation of that particular

problem is a part of this and that’s a mental health-related aspect

of this, I think we’re kidding ourselves. That’s why I was pleased

in the measure that we cosponsored and was passed that we had

an attention to that aspect of things.

Last, but not least—and I hope I’ve given these items the requisite level of attention—you talked about the Antitrust Division.

I will urge the President to appoint an individual who has a capacity to work well in this area. Antitrust is a refined part of the law.

I spent some substantial amount of time in antitrust considerations

on several issues when I was a State Attorney General. And the

President I think will respond. It happens to be one of the things

you’ll have a chance to influence, because the advise and consent

function of the Senate is operative there, and certainly I would welcome your input and the opportunity to confer with you about making a constructive response to that challenge.

Senator DEWINE. Senator, thank you very much. Thank you, Mr.

Chairman.

Chairman LEAHY. Did you have something else?

Senator DEWINE. No, it’s fine. Thank you.

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Chairman LEAHY. Incidentally, some in the press have asked if

there is anything symbolic about being in the Caucus Room. I don’t

mean to deflate anything, but it is more the luck of the draw. We

started a system of having the Rules Committee, as Senator

Ashcroft knows, assign the rooms where you go. I think they do it

by computer. But, in any event, the Foreign Relations Committee,

which will be hearing General Powell’s nomination, needed a large

room. There had been some public and press attention to this hearing which indicated the need for a large room. We both asked for

a large room. This one was being used yesterday for something

else. Foreign Relations didn’t need that. A long way around to saying it is coincidence that we are here. I don’t want anybody to draw

any other conclusion from our location.

I would ask our colleague, Senator Collins from Maine, and our

former colleague, Senator Danforth, to come forward and join Senator Ashcroft at the table, as I announced earlier. Once they have

finished their statements and any questions that there may be for

them, we will then break for lunch. When we break for lunch, it

will be a 1-hour break.

Senator Collins, please go ahead.

STATEMENT OF HON. SUSAN M. COLLINS, A U.S. SENATOR

FROM THE STATE OF MAINE

Senator COLLINS. Good morning, Mr. Chairman, members of this

distinguished Committee. I am pleased to be here today on behalf

of my friend, John Ashcroft, and I thank those hearty few who

have remained to hear my testimony before you break for lunch.

Let me begin by saying that if I were to tell the members of this

Committee that I had a candidate for Attorney General who had

attended one of the Nation’s finest undergraduate institutions and

law schools and had served for 8 years as a State Attorney General, 8 years as a Governor, and 6 years as a U.S. Senator, I doubt

there would be much by way of concern about that candidate’s professional experience.

Similarly, if I were to point out that this candidate was also an

individual of tremendous integrity and high personal values, there

would be little doubt that the candidate met the ethical standards

for the position.

That is exactly the case that we have here with John Ashcroft.

Nevertheless, his nomination has generated a controversy noteworthy for its intensity. Given John’s record of public service and

his personal integrity, it is fair to conclude that the genesis of this

controversy is his political philosophy.

Concerns have been raised that John is simply too conservative

to enforce the laws with which he disagrees. In responding to these

concerns, let me first make clear that I have disagreed strongly

with John on a number of issues. Our views on abortion rights,

among many other issues, are far apart. But I have absolutely no

doubt that John will fully and vigorously enforce the laws of the

United States regardless of his personal views. He not only has

given me personal assurances, but also has testified under oath before this Committee that he will do so.

This situation is not unique to John Ashcroft. Virtually every Attorney General has had to enforce laws with which he or she has

158

disagreed. Our most recent Attorney General is no exception, as

Senator Thurmond has pointed out. Despite her personal opposition to the death penalty, Attorney General Reno has approved

Federal death penalty prosecutions in 176 cases. Moreover, a fair

examination of John’s record shows that both as Attorney General

and as Governor of Missouri, John has enforced and acted in support of laws with which he has personally disagreed. Several examples of this have already been provided to the Committee on issues

ranging from abortion to gambling.

Ultimately, this question comes down to our assessment of how

John will exercise his judgment. Will he use his discretion wisely,

fairly, and appropriately? I would suggest to this Committee that

the best proof we have that he would do so can be found in the decisions that John made last November.

The circumstances surrounding the Missouri election are wellknown to all of us. The significance of the seat to the composition

of the Senate is obvious. That is why I am addressing Senator

Leahy as ‘‘Mr. Chairman’’ today. And the determination with which

John campaigned demonstrated how intent he was on winning this

race. And yet when tragedy intervened at the end of the campaign,

John acted in a manner that we can all admire, and that was a

testament to his good judgment.

John could have pursued a legal remedy for which he had strong

grounds. After all, the Constitution sets forth just three requirements for a U.S. Senator, and the third is particularly relevant in

this case. It expressly states that ‘‘No person shall be a Senator. . .who shall not, when elected, be an inhabitant of that State

for which he shall be chosen.’’ This constitutional requirement

would have given John grounds to contest the election, and many

legal experts contend he would have prevailed in court.

Despite his fervent desire to win and despite the fact that the

court system was there to provide him with an avenue to continue

his quest, John chose not to pursue legal action. Instead, he used

his discretion to act in a manner that showed compassion to the

family of a political rival and concern for the people of his State,

an exercise of discretion that was clearly contrary to his personal

political interest.

Like many Americans, I was deeply moved watching John’s

speech when he announced that he was conceding the election and

that he hoped that the late Governor Carnahan’s victory would provide a measure of comfort for his grieving family.

Despite the proliferation of the vitriolic rhetoric surrounding this

nomination, I hope that the American people will have the opportunity to learn about the John Ashcroft whom I know. The dignity

and compassion exemplified in that graceful act last November displayed the essence of the man with whom we served in this great

body.

Thank you, Mr. Chairman, for your courtesy in allowing me to

appear before the Committee today.

Chairman LEAHY. I thank my neighbor from New England and

will assure her that, while I appreciate the appellation of ‘‘Mr.

Chairman,’’ I am making sure I don’t get too used to it.

Our former colleague, the Senator from Missouri, Senator Danforth.

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STATEMENT OF JOHN DANFORTH, FORMER U.S. SENATOR

FROM THE STATE OF MISSOURI

Senator DANFORTH. Mr. Chairman and members of the Committee, thank you very much for the opportunity to testify. I would

like to address the one question that has come up repeatedly in

these hearings and repeatedly in the media, and that is whether

John Ashcroft’s philosophical views, whether his political views

would in any way circumscribe his ability and willingness to execute faithfully the responsibilities of Attorney General of the

United States. And I would like to speak from 30 years, roughly

30 years of knowing John Ashcroft. I have known him since before

he ever got into politics, before he held any public office.

John and I and Kit Bond were in Missouri politics and Missouri

government when we were in our early 30’s, and all three of us

were holding public office for a time, Kit as Governor and John as

State Auditor and I as Attorney General. And we were the reform

movement in State government. And I want to tell you what the

nature of that reform was because I think that it sheds light on

the basic question before the Committee as to John’s ability to

faithfully execute his responsibilities.

What we inherited in State government was the old-fashioned

spoils system. What we inherited was government that was based

on politics. And we began, starting with the State Attorney General’s office, much smaller, of course, than the Justice Department,

but really a comparable office. We began to reform the very nature

of State government. And the reform was that instead of hiring

people on the basis of their politics, we would hire people on the

basis of their ability. And we would require a day’s work for a day’s

pay, and we would ask people only to interpret and enforce the law.

And we would not impose political views on them.

So we didn’t ask people what their politics were, and I have spoken to a law partner of mine who worked for John Ashcroft and

asked him whether the rule that I had when I was State Attorney

General was the same as John Ashcroft’s, and indeed it was. He

said he was never asked when he was interviewed for the job about

politics. He was never asked about political philosophy. And he told

me about a colleague of his in the Attorney General’s office who admitted to John, I’m a Democrat. And John said to him that’s not

relevant to this.

Now, I think that this is an important point to make because it

seems to me that someone who is just absolutely bent on superimposing his political views on an office would at least ask people

about their politics before he hired them. And John did not do that.

Then in the operation of the office itself, this same law partner

of mine who served with John circulated a letter that was addressed to Senator Hatch, and I want to submit the letter for the

record. It’s signed by 18 people who served as lawyers on John

Ashcroft’s staff, and the lawyer who circulated the letter told me

he could have gotten many more signatures, but he got 18 and sort

of ran out of time. But here is the letter that he addressed to Senator Hatch. ‘‘Dear Senator Hatch: The undersigned are former Assistant Attorneys General for the State of Missouri who served in that capacity during John Ashcroft’s tenure as Missouri Attorney General.

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We are writing to state for the record that during our time in these

positions, John Ashcroft never interfered with our enforcement or

prosecution of the law and never imposed his personal political beliefs on our interpretation or administration of the law we were entrusted to enforce.’’ That is how he operated that Attorney General’s office, and I

have no doubt that he would do the same in the Justice Department.

I think it has already been referenced in this hearing, but it is,

I think, a very good example of how John approached his job in Jefferson City.

In 1979, then Missouri Attorney General Ashcroft issued a legal

opinion on whether religious material could be distributed on property of public schools. His opinion clearly distinguished between his

personal views and his legal analysis. He wrote, ‘‘While the advance of religious beliefs is considered by me, and I believe by most

people, to be desirable, this office is compelled by the weight of the

law to conclude that school boards may not allow the use of public

schools to assist in this effort.’’ So for John, the weight of the law determined his conduct in office and not his personal thoughts about desirable actions.

Finally, I would like to say this based on 30 years of knowing

this person. I think it was Senator Schumer who asked yesterday,

you know, after all this history as a Member of the Senate and

fighting all these battles, how can you turn it off as Attorney General? I think the same kind of question is asked to a lot of lawyers.

If you are a lawyer, how do you turn off your personal feelings?

How do you discharge your responsibility zealously to represent a

client? It is a matter really of legal ethics, and it is a matter of how

the system works.

But when John Ashcroft yesterday in that very dramatic moment

raised his hand and said, ‘‘When I swear to uphold the law, I will

keep my oath, so help me God,’’ I would say to the Committee that

any of us might disagree with John on any particular political or

philosophical point. But I don’t know of anybody and I have not

known anybody in the 30 years I have known this person who has

questioned his integrity. That is a given. And when he tells this

Committee and tells our country that he is going to enforce the law

so help him God, John Ashcroft means that. That is exactly what

he is going to be doing.

So I think that the answer to the question, Mr. Chairman and

members of the Committee, would his political or philosophical

views circumscribe his responsibility to execute faithfully the duties of the office of Attorney General of the United States, the answer in my mind is absolutely certain. He would in no way superimpose his views on the duties of that office.

Chairman LEAHY. Thank you, Senator Danforth, and you have

had the unique opportunity of testifying in a nomination hearing

twice now in this Committee room, once as a Senator and second

as a former Senator.

Are there any questions of either of the Senators? Any other

questions on this side?

[No response.]

Chairman LEAHY. Then we will stand in recess until 2:09.

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[Whereupon, at 1:09 p.m., the Committee was recessed, to reconvene at 2:09 p.m., this same day.]

AFTERNOON SESSION [2:17 p.m.]

Chairman LEAHY. When we proceed, we will go first to Senator

Durbin of Illinois and then Senator Sessions of Alabama. But I will

give an opportunity for everybody to get seated.

[Pause.]

Chairman LEAHY. The distinguished senior Senator from Illinois,

Senator Durbin, is recognized.

Senator DURBIN. Thank you very much, Mr. Chairman.

Senator Ashcroft, welcome again to the Committee. On the day

of your nomination, you called me and we talked about this day,

and I told you that my first concern was over the Ronnie White

nomination for Federal district court judge in Missouri. I will have

to tell you, Senator, that this has been a bone in my throat ever

since the day that it happened.

I have said this to the press, and I have said it to you personally.

I think what happened to Judge Ronnie White in the U.S. Senate

was disgraceful.

I am sure that you are well aware of Ronnie White’s background,

but for the record at this hearing, I would like to say it so that it

is here for all to understand.

Ronnie White was the first African-American city counselor in

the city of St. Louis. He was the only African-American judge on

the Missouri Court of Appeals. He served three terms in the Missouri House, was Chairman of the House Judiciary Committee and

the Ethics Committee. He became the first African-American to

serve on the Missouri Supreme Court in its 175-year history. It

was so significant the St. Louis Post Dispatch said that his appointment was ‘‘one of those moments when justice has come to

pass.’’ At his swearing-in ceremony, it took place in the old courthouse

in St. Louis. Having grown up across the river in East St. Louis,

I know the history of that building. That was a building where the

Dred Scott case was tried twice and where slaves were sold on the

steps of the courthouse.

That was the man who was elevated to the Missouri Supreme

Court, Ronnie White. That was the context of his elevation.

And as I look at your decision to oppose his nomination, which

led to a party-line vote defeating him, I am troubled. I am troubled

by what I think is a mischaracterization of Ronnie White’s background, his temperament, his judicial training, his experience on

the bench. He came before this Senate Judiciary Committee and

said, with a question from Senator Hatch, that he supported the

death penalty. When you spoke against Ronnie White on the floor

of the U.S. Senate, you suggested that he was pro-criminal.

Well, I might suggest to you that the facts tell us otherwise. In

59 death penalty appeals which Judge White reviewed while on the

Missouri Supreme Court, he voted to uphold the death sentence in

41 cases, 70 percent of the time. The record also reflects that Judge

White voted with the majority 53 times, 90 percent, on the death

cases before the Missouri Supreme Court.

His decision were affirmed 70 percent of the time, a significantly

better record than his predecessor, who was affirmed 55 percent of

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the time, a gentleman whom you appointed to the Missouri Supreme Court.

And then there was the Kinder case which raised a question as

to whether a judge could be impartial, a judge who days before a

decision relative to an African-American made disparaging, racial

comments in public. You said that the case there was about affirmative action and that it was Judge White’s commitment to affirmative action that led to his decision to dissent in that case. In fact,

Judge White expressly said in his decision that the judge’s position

on affirmative action was irrelevant and what was relevant was

what Judge White characterized as a pernicious racial stereotype.

It is interesting that after you defeated Judge White, the Senate

voted him down, the reaction across Missouri. The 4,500 members

of the Missouri Fraternal Order of Police wrote, ‘‘Our Nation has

been deprived of an individual who surely would have been proven

to be an asset to the Federal judiciary.’’ It has come to light that

your campaign organization contacted law enforcement officers to

enlist them in your crusade against Ronnie White. Most of them

refused. In fact, the largest organization expressly refused.

I find it interesting that this man, who was so important in the

history of Missouri, had such an extraordinary background as an

attorney, a legislator, and a jurist, somehow became the focus of

your attention and your decision to defeat him.

One of the statements made by one of your supporters should be

a part of this record. Gentry Trotter, a Missouri Republican businessman and an African-American, who has been one of your fundraisers for many years, resigned from your campaign after the vote

on Judge White.

Trotter said in a letter to you that he objected to your ‘‘marathon

public crucifixion and misinformation campaign of Judge White’s

record as a competent jurist.’’ Mr. Trotter wrote that he had never

met White, but he suspected that you had chosen ‘‘a different yardstick’’ to measure his record.

Senator Ashcroft, did you treat Ronnie White fairly?

Senator ASHCROFT. Senator Durbin, let me thank you for your

candor in this matter. I did call you either the day or the day after

the President nominated me for this job, and you expressed to me

as clearly then as you have now your position. And I appreciate

that and I appreciate your feelings in this case.

I believe that I acted properly in carrying out my duties as a

member of the Committee and as a Member of the Senate in relation to Judge Ronnie White. I take very seriously my responsibility.

Pardon me. Let me amend that. I no longer have that responsibility. I took very seriously my responsibility as a Member of the Senate, and I don’t mean to say that I still have that responsibility.

Judges at the Federal level are appointed for life. They frequently have power that literally would allow them to overrule the

entire Supreme Court of the State of Missouri. If a person has been

convicted in the State of Missouri but on habeas corpus files a petition with the U.S. District Court, it’s within the power of that single U.S. District Court judge to set aside the judgment of the entire

Supreme Court of the State of Missouri. So that my—the seriousness with which I address these issues is substantial.

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I did characterize Judge White’s record as being pro-criminal. I

did not derogate his background. I’m not as familiar as you have

made us all with his background. It was not my intention to interfere with his background or discredit his background. And, frankly,

it’s not my intention to comment on his membership on the Supreme Court of the State of Missouri because that’s a different responsibility and that’s a different opportunity.

Not a single Republican voted for Judge White because of a substantial number of law enforcement organizations that opposed his

nomination.

Senator DURBIN. How many?

Senator ASHCROFT. Well, I know that the National Sheriffs’ Association did.

Senator DURBIN. The Missouri Federation is one group, and they

represent, I think, 70 municipalities. The larger group of Missouri

Chiefs of Police, including the cities of St. Louis and Kansas City,

refused to accept your invitation to oppose him. Some 456 different

law enforcement authorities came to the opposite conclusion you

did as to whether Judge White was pro-criminal. Does that give

you pause?

Senator ASHCROFT. I need to clarify some of the things that you

have said. I wasn’t inviting people to be a part of a campaign—

Senator DURBIN. Your campaign did not contact these organizations?

Senator ASHCROFT. My office frequently contacts interest groups

related to matters in the Senate. We don’t find it unusual. It’s not

without precedent that we would make a request to see if someone

wants to make a comment about such an issue. Of the sheriffs in

Missouri, 77 of them signed a letter to me saying that I should be

very careful in this setting because they had reservations about the

way in which Judge White had been involved in a single dissent

in regard to the Johnson case.

Senator DURBIN. Senator Ashcroft, I am sorry to interrupt you,

but the Missouri Police Chiefs Association, representing 465 members across the State including the police chiefs of St. Louis and

Kansas City, their president, Carl Wolfe, in an article that appeared in the St. Louis Post Dispatch on October 8, 1999, said his

group had received a letter from your office dealing with White’s

decisions in death penalty cases. He said he knows White personally, has never thought of him as pro-criminal. He said, ‘‘I really

have a hard time seeing that White’s against law enforcement. I’ve

always known him to be an upright, fine individual, and his voting

record speaks for itself.’’

Senator ASHCROFT. I would be very pleased to continue to respond to your question.

As it relates to my own objections, I had a particular concern

with his dissents in death penalty cases. Judge White has voted to

give clearly guilty murderers a new trial by repeatedly urging

lower standards for approving various legal errors.

Senator DURBIN. In which specific cases?

Senator ASHCROFT. Well, let me begin to address a case. In the

Johnson case, Missouri v. Johnson, the Missouri Supreme Court affirmed four death sentences for one James R. Johnson, who went

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on a shooting rampage in California, Missouri. This was during the

time—

Senator DURBIN. Senator Ashcroft—

Senator ASHCROFT.—I was Governor of the State.

Senator DURBIN. I am sorry—

Senator HATCH. Let him answer the question.

Senator SESSIONS. Let him answer the question. He has been interrupted about five times.

Senator DURBIN. Well, I am anxious to have a complete record,

but I also want this to be an exchange and dialog as opposed to

a complete speech on one side. I am familiar with the case, and I

have read it. I would like to ask you a specific question about the

case.

Senator ASHCROFT. Well, you have made a number of statements,

Senator, and obviously I’m not running this hearing.

Senator DURBIN. Please—

Senator ASHCROFT. But I would like to have the opportunity to

respond—

Senator DURBIN. Please do.

Senator ASHCROFT.—To your statements, and I think it’s fair to

put the situation in context.

I was going to talk about some other items that you mentioned

about the statistics of his dissents. He had four times more dissents than any of the other—than the Ashcroft appointees to which

comparisons have been made on the case. And, frankly, I think it’s

important to note that just statistical numbers about the times you

say guilty or innocent doesn’t really prove anything. I mean, if we

both took a true/false test, we might have equal numbers of trues

and falses, but you might score 100 and I might score a zero. But

he obviously—and the first case that I would mention is the Johnson case, the Johnson case with the multiple murders. The sheriff’s

wife was shot while she was conducting a Christmas party for her,

I think, church organization, five times. The murderer shot three

other—three law enforcement officers, killing three other law enforcement officers, I believe, and then wounding another law enforcement officer. And the defendant in the case had pleaded—not

had pled but had confessed completely to the crime in a statement

that alleged no difficulties or no problems. So that when the case

finally was litigated, it was clear that there was no question about

whether or not he conducted himself in a way which was somehow

excusable.

Senator DURBIN. But, Senator, didn’t the dissent from Judge

White come down to the question of the competency of his counsel?

And didn’t Judge White say expressly in that decision that if he is

guilty, then, frankly, he should face the death penalty? There was

no question about it. But if you have read the case, as I have, I

cannot believe that you would have hired or would hire if you are

appointed Attorney General for the United States the defense counsel in that case to represent our country. The man was clearly lacking in skill in preparing the defense, and that is the only point

made by Judge White.

Senator ASHCROFT. Well, I think that being the only point, it’s

an inadequate point to overturn a guilty verdict for murder.

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Senator DURBIN. So the competency of counsel in a death penalty

case you don’t believe is grounds for overturning?

Senator ASHCROFT. It’s part of the necessary grounds, Senator,

but I believe mere incompetency of counsel without any showing of

any error or prejudice in the trial against the defendant does not

mean that the case should be overturned. If you’ll read carefully— and I believe you would come to that conclusion—the opinion of the

court here, you’ll find that the disagreement in the case was what

weight incompetency or alleged incompetency should have and the

extent to which the trial should be set aside if there isn’t any real

evidence that the incompetency or the mistake affected the outcome.

Senator DURBIN. Well, Senator, clearly we see this differently,

because I am proud that my Republican Governor in my State,

even though I support the death penalty, as you do, my Republican

Governor in my State has declared a moratorium on the death penalty. I think he has taken the only morally coherent position that

if we find DNA evidence that exculpates an individual or if we find

a clear case of a capital case where there is evidence of incompetent counsel, it raises a serious question as to whether or not

that defendant was adequately represented. And I think that is the

point that Judge White.

Senator ASHCROFT. I commend your Governor for following his

conscience in that respect. I think that’s an option for each Governor and each person in that setting to make a judgment on.

I want to make it clear. Defense counsel in the Johnson case decided to advance a theory of a post-traumatic syndrome for an individual who had been involved in Vietnam at one time. It was in

so advancing that theory, they alleged that the defendant had set

up a perimeter of string and tin cans around his house to alert the

defendant of anybody coming in, and also that the defendant had

flattened the tires on his own car so as to avoid someone coming

in to take his car and use it against him.

When the defense counsel alleged this, they sought to prove that

he thought he was still back in Vietnam. The truth of the matter

is he hadn’t done that at all.

Senator DURBIN. That was the point that Judge White made— Senator ASHCROFT. That is the point— Senator DURBIN.—That any competent counsel would have established the police had put in the perimeter and the defense counsel’s

defense of mental incapacity was based on a fact that he had not

checked on. Incompetent counsel in a death penalty case? I will

just say to you, Senator—we have run out of time here, but for you

to reject Judge White based on that decision, on that important

issue of competent counsel in a death penalty case, troubles me

greatly. This is an extraordinary man with an extraordinary background. I think he was treated extremely poorly by the U.S. Senate, and I am troubled by that.

I yield to the Chairman.

Senator ASHCROFT. Mr. Chairman?

Senator HATCH. Do you have anything further to say on that?

Senator ASHCROFT. Mr. Chairman, I think that it’s important for

us to understand that alleging a mistake at trial is not enough. We

should show that the mistake at trial made a difference or was

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very likely to make a difference. And there is a standard such in

the law of the State of Missouri, and there is such a standard in

the law of the United States of America. And it’s pretty clear that

that standard was something that Judge White thought simply

should be swept aside.

That’s not my view. That’s the law.

Now, the consequence of ruling, as Judge White would have

ruled in that case, was this: If you and your attorney concoct a lie

and it succeeds, you win. But if you and your attorney concoct a

lie and it fails, it’s incompetency in your counsel and you lose, but

you get a new trial.

I think we have to look at the result of these cases. Now, I’m prepared to talk about a number of other cases that Judge White ruled

in and discuss his positions there. Unfortunately, they’re not any

less grisly than the four murdered law enforcement officials and

their relatives. They reflect, in my judgment, an approach which,

if you’re one or two of the dissenting judges on the court in Missouri, it doesn’t make a difference in the ultimate outcome. But if

you turn out to be the sole judge in Federal district court, you have

the ability to erase a guilty verdict and provide that a person, once

adjudicated guilty for these crimes, is no longer guilty.

I know of no regime anywhere that says merely the detection of

an error at trial without measuring its impact is—anywhere in the

law where that’s in effect. And I don’t think it should be in effect

here. I believe this is very serious. I believe it’s very important. But

I don’t think there was any reasonable likelihood that the defendant who went in and confessed completely his crimes without reference to any difficulty and without any evidence of involvement in

a situation where he was out of control, in a flashback in Vietnam,

could later on expect that defense to be sustained.

Senator DURBIN. Well, I might say, Mr. Chairman, in conclusion

here, if I might, it appears that your conclusion about Justice Ronnie White is a conclusion that is not shared by the law enforcement

community of the State of Missouri. A man who has an extraordinary background was given, I think, shabby treatment by the

Senate because of your instigation, Senator Ashcroft. And I think

that is troublesome.

Chairman LEAHY. Senators, we will, I am sure, come back to this

issue more, and I will extend extra time to the Senator from Alabama, who has been patiently waiting.

Senator SESSIONS. Thank you, Mr. Chairman, and I welcome

you, John, back to the pit. You have been doing a tremendous job,

and how you can remain cool and thoughtful when we switch from

subject to subject, many of them most complex and many of them

over quite a number of years, is really a tribute to your intellectual

capacity and your clear thinking. And I appreciate that, and I

think anybody who has watched this hearing from the beginning

will see that you have confronted honestly and directly every allegation or complaint and have explained them in a way that makes

sense to them, and it makes sense to me, and I believe the American people owe you that. I believe this Committee owes you that.

I believe—I know that there are groups who care a lot about it, and

they have every right to raise issues and complain and ask quesVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00180 Fmt 6601 Sfmt 6601 C:\HEARINGS\76342A.002 SJUD4 PsN: SJUD4
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tions. That is part of this process. I am sure it is not fun, but it

is part of it, and we have to go through that. And I value that.

I would just call to my friends on the other side, their attention

to the fact that sometimes there are conservative groups that attempt to impose views on how a vote should go in this Committee.

Our Chairman, Chairman Hatch, has been approached a number

of times to do this or do that on behalf of groups, and he has said

no, that he is the Chairman of this Committee, and he alone bears

the responsibility for making those decisions, and he has conducted

it with great integrity and has been able to keep a proper distance

from outside groups who might try to dictate an outcome of a hearing, because it is our duty to get to the bottom of that. I just say

that to start with.

And with regard to Justice White, I know Senator Durbin feels

strongly about this, and he has looked at it. But I just don’t agree.

I am not—you know, we say this is not a racial question. You voted

for every African-American judge that has been up here. But a big

point is made of his race. I think he should be treated like any

other nominee, and that is what is fair. And he does have an important job now, which he will continue to hold. He is one of seven

judges there.

Now, before I became a Senator, I was Attorney General 2 years,

but for 15 years I spent full-time practicing every day in Federal

court before Federal judges. I have the greatest respect for Federal

judges. But I can tell you it is a pleasure to go to work before a

great Federal judge, and I had the rare opportunity to practice before a series of great ones. But a bad Federal judge can ruin your

day. It cannot be a pleasant experience. And they are there forever.

And you can go home, and you can be so frustrated that you want

to scream. But they are there. They will not be removed. I have

often wondered how our Founding Fathers made such a colossal

mistake to give a person a job he can never be gotten rid of. The

only opportunity the American people have to have public input in

who this person will be is at a confirmation hearing. So I think

that is what was done in this case, and serious questions were

given to it.

There are great powers to a Federal judge. They can grant motions. They can deny motions. They can order discovery. They can

rule on search and seizure issues and those sort of things, some of

which you can appeal. Many of them either practically can’t be appealed or as a matter of deference the Appeals Court will give to

them, you can’t be successful. There is great power in a Federal

judge.

One of the greatest powers in the entire governmental system of

this United States is the power of a Federal judge at the conclusion

of the prosecutor’s case to grant a judgment of acquittal. And at

that moment, that defendant is freed, jeopardy is deemed to have

been attached under law. He can never be retried no matter how

horrible that crime was. Most people don’t believe that is true.

Trust me. That is the law in America. It is unreviewable power,

cannot be appealed.

So I think from the point of view of a prosecutor—and John

Ashcroft served 8 years as an Attorney General who handles appeals on a routine basis before the Supreme Court, they know the

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importance of making sure that whatever we do, that not on my

watch as U.S. Senator from Alabama will I confirm a judge I believe is not fair to law enforcement. Not fair to law enforcement is

not fair to victims. Not fair to law enforcement is not fair to justice.

So this is a big deal, No. 1.

This Johnson case I believe is also a big deal. Let’s sum this

thing up. This defendant, a deputy came to his door because of a

domestic disturbance. He killed, shot that deputy several times. He

laid on the ground moaning. Then the defendant, Johnson, comes

out and shoots him through the forehead, murders him there, goes

to the home of the sheriff. The sheriff is not there. His wife is in

the house with a party, a social of some kind going on. He shoots

her five times through the window, killing her, then goes and

shoots another deputy, then goes and lays in wait and shoots two

more deputies out trying to do something about this event.

He was surrounded, finally surrendered, gave a detailed confession, did not say he was having—he thought they were Vietcong or

he thought he was in Vietnam, he was under attack. He had driven

from place to place, as a matter of fact. He did not give that kind

of defense. It was a complete confession.

And the defense attorney, I submit, was in a difficult position.

Obviously, the prosecutor was not going to agree to a plea bargain

of less than death in a case like this. If this isn’t a death case,

there was never a death case in Missouri. He could not give that

death case up. So what would he do?

So they came up with a homerun, goofy defense that it was posttraumatic stress syndrome. That is what they tried to pull off. And

it failed. They were caught in it. The defendant was convicted.

To my understanding, they were good lawyers. In fact, there was

a hearing at a later date on the competency of the counsel in this

case, and they were found to be competent. So they got caught. The

truth is that is what jury trials are all about: who is telling the

truth, the defendant or the prosecuting witnesses. They concluded

that he was not telling the truth. It was a false defense, and they

rejected the defense. That happens every day in court all over

America.

Now we are going to create—what Judge White did and why it

was big-time significant was he created a circumstance in which

you encourage a defense lawyer to try the most outlandish defense

scheme to see if they can get away with it, and if they don’t get

away with it and they get caught, they can ask for a new trial for

the defendant.

Why, this is a big deal, and I did not like the language that he

used that, well, maybe this is not insanity, Judge White wrote. He

said it is something akin to insanity, and we have had some real

problems in this country of getting a clear definition of ‘‘insanity.’’

After the Hinckley shooting of President Reagan, this Congress

dealt with and confronted that difficult question and came up with

a much more clear rule for Federal court. To me, his opinion indicated a lack of fully comprehending the importance of a clear definition of insanity in that case in addition to violating the established law about ineffective assistance of counsel.

In an exchange, Senator Durbin, between you and Senator

Ashcroft, I don’t think you do dispute that it is the established law

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that you must show not only effectiveness, which I suppose you

could say this was ineffective since they tried a defense that didn’t

succeed, but what other defense did he have, but, second, if it was

ineffective from that technical point of view, you don’t dispute that

it has to have an impact on the outcome of the trial. So that is the

established law, I believe, in America, as Senator Ashcroft has articulated, and that is why I think it was a big error.

I didn’t like the Kinder case either. I think that was almost a

very strange ruling. So that was, to me, significant.

Now, there were serious concerns about Justice White’s reputation for law enforcement effectiveness. Seventy-seven sheriffs in the

State signed a petition in opposition to his nomination. That is well

over half. I am quite sure many of those were Democratic sheriffs

in opposition writing to Senator Ashcroft as State Senator opposing

that nomination. I think that is very significant. In addition to

that, the National Sheriffs’ Association opposed the nomination.

The Missouri Federation of Chiefs of Police wrote, ‘‘We are absolutely shocked that someone like this would even be nominated to

such an important position. We want to go on record with your offices as being opposed to his nomination and hope you will vote

against him.’’ The Mercer County prosecuting attorney’s office wrote, ‘‘Justice

White’s record is unmistakably anti-law enforcement. We believe

his nomination should be defeated. His rulings and dissenting opinions on capital cases where he did four times as many dissents as

his brother justices, in capital cases and on Fourth Amendment

cases’’—that is the search and seizure where there is a lot of daily

work done there—‘‘should be disqualifying factors when considering

the nomination.’’ Now, I know that it is no fun. It is a difficult thing in a situation

like this to oppose a nomination of somebody who appears to be a

good person in every respect, but a lifetime appointment to that

bench is very important, and I think we can do better about it.

Do you have anything to add to that?

Chairman LEAHY. Don’t you agree?

Senator SESSIONS. The first one is do you agree.

Senator ASHCROFT. I appreciate your clear explanation of the

Johnson case. I think what you have to look for in a case is what

will be the rule if the opinion of the judge is embraced. The rule

in the Johnson case was is if you try a really whacked-out theory

of something and it is revealed as the lie that it is, then you get

a new trial because it was an incompetent or ineffective thing to

do at trial. If you succeed with it and get them to believe it, you

don’t need the new trial.

What bothered me about the case was that the judge basically

wanted to lower the standard, and frankly, what bothered me

about the Senator’s articulation of the case in addition to the fact

that—well, was that incompetence alone overturns the verdict.

As a matter of fact, in the Kinder case, which is another unpleasant case, I mean, this is another case of a woman who was beaten

to death with a pipe after being raped by a defendant who had

been seen with the pipe shortly before the rape and found with the

bloody pipe in his hand after the rape, and the defendant’s semen

had been found in the victim of the rape. And there was an allegaVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00183 Fmt 6601 Sfmt 6601 C:\HEARINGS\76342A.002 SJUD4 PsN: SJUD4
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tion about a statement that the judge had made prior to the trial

in another setting that indicated that the judge was a person who

was biased against African-Americans, and the defendant and the

victim were both African-Americans in the case.

Now, I don’t think there is any question about the fact that

judges should ever make statements that reflect racial bias. I think

swift and sure action should be taken to keep individuals like that

from being apart of our judicial system if they are biased, but you

have a situation here where there is an alleged bias. I am not going

to debate it. But Judge White said that the alleged bias alone

should overturn the murder conviction of that young woman,

should set aside the murder conviction, and it didn’t matter that

there has—that there was no error at the trial, none. There was

no allegation of any impact of the bias. As a matter of fact, I believe there was a separate review of the trial by authorities to try

and find an indication of bias that affected or otherwise was reflected in the trial and had an impact on the outcome and they

couldn’t.

Missouri v. Irvin is another case. Now, this was not about Judge

White urging broad, lenient, legal rules, but it still caused me a

great alarm. In order to have a death penalty in Missouri, you have

got to be able to say that the crime was committed with cool reflection, torture, or depravity of mind which includes brutality of conduct.

In this case, the defendant went to the victim’s residence late one

night. They appeared to get in an argument. The defendant

stabbed the victim, an older man, in the neck and the upper chest

and dragged the naked victim out of the trailer in front of others

by something tied around his neck. The victim had been stripped

of his clothes in the interim. I think the victim was propped up

against the tree, and the victim said, ‘‘Go ahead. Kill me, James,’’

at which time the defendant beat the victim in the head four to five

times with a brick and walked away, and shortly thereafter, when

the victim began to move and to moan, the defendant came back

again and beat him in the head with a brick, causing fatal wounds.

Now, I think there is enough depravity of mind and brutality of

conduct in that description to satisfy almost anybody—almost anybody, but Judge White says it just barely concurs that there is a

submissible case of first-degree murder here. Well, it is this kind

of view over and over again—there are other cases—that I came to

the conclusion that this was not a person that I felt should sit in

judgment in a setting where the ruling of the single judge could

displace the conclusions of the entire Supreme Court of Missouri.

Now, in these settings where he was the solo or with one other

judge in dissent, that is a different circumstance, and I don’t comment on that.

Chairman LEAHY. The Chair would note it has given the same

amount now of extra time to both the Senator from Alabama and

the Senator from Illinois.

Senator ASHCROFT. I thank the Chair.

Senator SESSIONS. Could I just have 1 second to wrap up?

Chairman LEAHY. Well, the Senator from Alabama, then, will

have more time. Let’s go ahead.

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Senator SESSIONS. I would just want to say that there was a

hearing later on these competent counsel. The judge found him

competent and, in fact, said they were highly skilled attorneys, devoted hundreds of hours to the defense. They were privately retained attorneys, not public defenders. They were professional trial

lawyers with extensive experience. One had been a leader in the

Criminal Defense Bar. Another one had graduated with Judge

White from college. They were all three competent and capable attorneys trying to make the best defense in a difficult circumstance,

and I don’t think they should be rewarded for failing in that effort.

Chairman LEAHY. I know the Senator from Alabama wanted to

note the fairness of both the Republican and Democratic leaders in

this Committee.

Senator SESSIONS. I will note that, Mr. Chairman.

Chairman LEAHY. The distinguished senior Senator from Delaware, as I noted before, has been absent because of chairing the

Powell hearing. So, at this point, he is able to rejoin us. I yield to

him.

I would also note that the Senator from Delaware did not have

the 3 to 4 minutes of opening statement he would have had yesterday. He is entitled to that today as well as his 15 minutes, should

he want it.

Senator BIDEN. I thank the Chair. I will try not to take all my

time, and I do apologize to Senator Ashcroft and my colleagues for

not being here.

Yesterday, I had the privilege of representing the Senate and giving one of the eulogies for our colleague, Alan Cranston, in San

Francisco, and that is why I was not here.

I am for a very brief fleeting moment Chairman of the Foreign

Relations Committee, and I am chairing the Committee on the

Powell nomination as we speak. That is by way of explanation of

my absence.

I asked the Chairman, and he was kind enough to put in an

opening statement yesterday. I just want to read one paragraph

from my opening statement:

You are to become the people’s lawyer more than you are to be the President’s lawyer. Consequently, the questions relating to your nomination are not merely

whether or not you possess the intellectual capabilities and legal skills to perform the task of Attorney General and not merely whether you are a man of

good character and free of conflict of interest that might compromise your ability to faithfully and responsibly and objectively perform your duties as Attorney

General, but whether you are willing to vigorously enforce all the laws in the

Constitution, even though you might have philosophic disagreement with them,

and whether you possess the standing and temperament that will permit the

vast majority of the American people to believe that you can and will protect

and enforce their individual rights.

That was my opening statement in 1984 when I was considering

how I would vote on the nomination of Edwin Meese. I cite that

only to say that my standard that I have applied—and I have told

you on the phone, Senator, and I appreciate you calling me and us

finally catching up with one another—has been consistent for the

28 years I have been a United States Senator.

My greatest concern is on questions relating to race. I will try

not to tread on the various issues that have been raised here except to say to you on the last point that I have always asked

whether or not the vast majority of Americans will believe that you

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will enforce the law vigorously on their behalf, not just whether

you will, whether they believe that you will.

There are only two places that black Americans and all minorities have over the last 40 years been able to go with some sense

of certainty that their rights would be vindicated and aggressively

pursued. One has been the Federal courts, and some State courts,

but primarily the Federal courts. The other has been the Justice

Department.

I sincerely wish, John, you had been nominated to be Secretary

of Defense or Secretary of Commerce or Secretary of State or Secretary of anything, but this single job as Attorney General.

I will, as is not unusual for me, be pilloried by the right and the

left for saying this. I find you a man of honesty and integrity. As

I said to you, I think you were the classiest person in the last election, the way you bowed out of your race. You did it with class and

dignity that was not seen by many Democrats or Republicans in

your position, and I have always had a good relationship with you.

I think you would agree to that.

But I told you bluntly what my concerns were when we spoke

and what they are now, and for those who suggest that maybe this

is a bit of an epiphany, I would suggest that it has been the standard I have applied my entire Senate career.

I say to folks it does matter what you are nominated for. For example, if I had—well, let me just say it this way. I am worried,

Senator, about the cumulative weight of items that lend the perception at least that you are not particularly sympathetic to African-Americans’ concerns and needs, not just the Ronnie White case

which is of concern to me, not just the voluntary desegregation

order which was obviously a very contentious issue during your

tenure back in Missouri, not merely your appearance at the Bob

Jones University, not merely your strong opposition to Bill Lann

Lee to be the head of the Civil Rights Division, but there seems to

be—not merely your sponsoring an act called a Civil Rights Act of

1997, I guess it was—don’t hold me to that—which said that no

longer could preferences be given in employment and Federal contracts.

The cumulative weight is what, quite frankly, concerns me, and

I raise with you an interview that you did in a magazine—if this

has been raised, please tell me, Mr. Chairman, and I will read it

in the record—in the magazine called the Southern Partisan. That

is a magazine to which you gave an interview, and it is a magazine

that has been characterized by the Associated Press and other

mainstream publications as a southern neo-Confederate publication

that regularly vilifies Abraham Lincoln as a tyrant, helps—and so

on and so on. I won’t go into all the details, but excerpts from the

magazine that I have asked my staff to get for me such as Negroes,

Asians and Orientals, Hispanics, Latins, Eastern Europeans have

no temperament for democracy, never have and probably never

will. Or, a 1996 article that came with the following claim, slave

owners did not have a practice of breaking up slave families, if anything, they encouraged strong families to further slaves’ peace and

happiness. Or, a 1990 Journal article of the same outfit, celebrating

former KKK Klansman David Duke as a candidate concerned about

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affirmative discrimination, welfare, profligacy, and taxation, a popular spokesman for a recapturing of an American ideal.

It goes on. After a visit by one of the writers for the Southern

Partisan to New York, he said, ‘‘Where are the Americans? For I

met only Italians, Jews, and Puerto Ricans,’’ and the list goes on

of these outrageous statements that this magazine carried.

Now, again, by way of context, it may seem by itself unfair to ask

you about this, but were I going to be the Secretary of Interior or

were I nominated to be the Secretary of Interior and I had given

a long interview with the outfit that is called the Earth Liberation

Movement, the one that goes and burns down any dwelling that is

on a Federal land in open space, or were I to give interviews to and

say some of the things you said about this magazine to the People

for Ethical Treatment of Animals, if I were going to be the head

of the Department of Agriculture, I think that most Midwestern

Senators would have a problem. I think most Western Senators

have a problem if it were regarding the Earth Liberation Movement.

Well, I have a problem coming to this Senate on getting involved

in politics because of civil rights. My State to its great shame was

segregated by law. We have not been very progressive until the

1970’s in my State on these issues, and so it bothers me.

Now, that is a long background to a relatively short question.

You gave an interview to that magazine where you said, ‘‘Revisionism’’—and I think you have a copy of this—‘‘Revisionism is a threat

to the respect that Americans have for their freedoms and liberty

that was at the core of those who founded this country, and when

we see George Washington, the Founder of our Country, called a

racist, that is just the total revisionist nonsense, a diatribe against

American values.’’ Well, so far, so good. ‘‘Your magazine also helped set the record straight. You have got

a heritage of doing that, of defending Southern patriots like Robert

E. Lee, Stonewall Jackson, Jefferson Davis. Traditionalists should

do more. I have got to do more. We have all got to stand up and

speak in this respect, or else we will be taught that these people

were giving their lives, describing their sacred fortunes in their

honor to some perverted agenda.’’

In the introduction of that article, they describe you—and you

can’t be responsible for how you are described, I acknowledge, but

in the description of it, it says, ‘‘John Ashcroft has made a career

of public service in Missouri after serving’’—and it goes on and it

says that ‘‘in a short time in Washington, the Senator has already

become known as a champion of States’ rights and traditional values. He is also a jealous defender of national sovereignty against

the new world order,’’ and so on and so forth.

Now, I have two questions relating to this, Senator, or actually

three. One, were you aware of the nature of this magazine before

you gave the interview, and, two, are you now aware, if you weren’t

then, of the nature of this magazine, and, No. 3, if you are aware

now, do you think it was a smart thing to do to give this interview,

not just because I am asking you the question?

Senator ASHCROFT. Thank you, Senator, and I appreciate the

candor of your remarks. I also appreciate the kind things you have

said about me.

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Senator BIDEN. I mean it.

Senator ASHCROFT. If some day there is a President Biden,

maybe you will consider Defense and Commerce and those other

things for me.

Senator BIDEN. America is in enough trouble right now.

Senator ASHCROFT. Let me make something as plain as I can

make it. Discrimination is wrong. Slavery was abhorrent. The fundamentals of my belief and freedom and liberty is that these are

God-given rights, and we have had the stain of slavery in our past,

and I recognize that our Nation’s history is complicated.

It is hard for me to know how Thomas Jefferson could write, ‘‘We

hold these truths to be self-evident that all men are created equal

and endowed by their creator with certain inalienable rights, and

that among these is life, liberty, and the pursuit of happiness,’’ and

at the same time be a slave owner. And while he owned slaves, I

think his articulation of these freedoms planted the seeds that resulted in ultimately doing away with slavery, and so it is complex

and complicated.

On the magazine, frankly, I can’t say that I knew very much at

all about the magazine. I have given magazine interviews to lots

of people. Mother Jones has interviewed me. I don’t know if I have

ever read the magazine or seen it. It doesn’t mean I endorse the

views of magazines and telephone interview, and I regret that

speaking to them is being used to imply that I agree with their

views.

Senator BIDEN. No, just to make it clear, John, I am not saying

that. I know you better.

Senator ASHCROFT. OK.

Senator BIDEN. Speaking to them implies to me an incredible insensitivity, No. 1. No. 2, speaking to them, learning who they are

and not condemning them after the fact implies a bit of bullheadedness at the least and a—I don’t know what else, but it ain’t

good. No, I sincerely mean this. It is a big deal. It is a big deal.

You have got 20 million black Americans out there whom you are

going to be representing. They are going to look to you and say, ‘‘Is

this guy going to enforce the law?,’’ and then they are going to say,

‘‘Wait a minute. This guy finds out that this outfit is this racist

neo-Confederate outfit that writes things about Jews and blacks

and Eastern Europeans and immigration, and he doesn’t condemn

them. He doesn’t condemn them.’’

I mean, look, we have all spoken to people we wish we hadn’t.

We have even had people contribute. I remember Jimmy Carter

when he had a picture taken in Ohio and it turns out to be John

Wayne Gacy was in the picture. Do you remember that? But after

he found out it was John Wayne Gacy and he got arrested, Carter

said, ‘‘I condemn the guy.’’ He didn’t say, ‘‘You know, well, I am not

really going to have anything to say about that. I talk to everybody

about these things, and John Wayne just happened to be there.’’

That is the part that confuses me, John. I don’t quite understand

that.

Senator ASHCROFT. Well, I condemn those things which are condemnable. I mean, slavery—

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Senator BIDEN. Isn’t the magazine condemnable? I mean, isn’t

the magazine condemnable? They sell T-shirts that says, you know,

the assassin was right.

Senator ASHCROFT. If they do that, I condemn them. I mean, if

they sell T-shirts saying that Abraham Lincoln should have been

condemned, I condemn that. Abraham Lincoln is my favorite political figure in the history of this country.

Senator BIDEN. Allegedly, they sold T-shirts with a picture of

Abraham Lincoln with the words, ‘‘Thus always to tyrants,’’ the

words of an assassin.

Anyway, what I still haven’t quite gotten, I still haven’t quite

gotten why—and by the way, a lot goes by in a campaign. We all

understand that. We have all been in campaigns, and we all get

faced with the proposition, ‘‘gee, if I disassociate myself with that

outfit, even though I don’t like him, is that going to raise more

questions? ’’ I can understand tactical judgments in the middle of

a campaign, but what I couldn’t understand is why right after

this—and this is called to your attention—you just don’t say boom,

boom, boom, ‘‘I should have never gone to get a degree from Bob

Jones University, I should have never had this interview.’’ I mean, as you all know, this place loves contrition. I mean, I

have had my share of having to do it. We all make mistakes, but

I don’t get it. I don’t get it.

And by the way, you are a great supporter of Scalia, as many

others are. I mean, Scalia said the same things, your old buddy did.

To illustrate the point, he voted on a case to overturn the death

penalty that had been imposed on a disgruntled ex-employee of a

married couple. The defendant entered the couple’s home, shot the

wife twice with a shotgun, then shot and killed the husband, and

then when he realized the wife was still alive, he slit her throat

and stabbed her twice with a hunting knife. In the second case, he

wrote an opinion reversing the death penalty that had been imposed on a defendant who had raped and strangled a 13-year-old

girl. Should Scalia not be on that Court? That was a publicized

case. I raised it on the floor of the Senate. I happen to think he

probably made the right decision under our Constitution, but what

people are looking for is balance.

So I would have less trouble with Ronnie White if you had gone

to the floor when this decision was made and say, ‘‘You know, I am

really disappointed in Scalia. He was one of my heroes. He was one

of the people I most respected, and look what he just did.’’

But nobody says that. I just want you to understand why people

are suspect, John. People are suspect not because they believe, at

least to the best of my knowledge, because they believe you are a

racist. They do not believe it. I do not believe that. But they are

suspect because they believe that your ideology blinds you to an

equal application of not just the law but the facts, and that is the

part that I have told you that troubles me. I mean, what would you

all have said if I had gone up here and my justification—I voted

for Scalia, as I tell you. He is a great guy. I told him. I was once

asked what is the one vote out of over 10,000 I regretted, it was

voting for Scalia. That was the one I most regret. I told him that.

He jokes about it. I teach a class in constitutional law. When he

found out, he called me and said, ‘‘Joe, I have got to come up and

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co-teach that class with you because you are really probably steering those kids in a different direction than they should go.’’ We

have a good relationship and I respect him, but I think he is dead

wrong.

But if I had stood up and said, you know, ‘‘I am voting against

Scalia for that reason and organized votes’’, I think you all would

have said, ‘‘Well, wait a minute.’’ I do not know, John. I guess what I am trying to get at, and it

is my frustration, because darn, I am not looking to vote against

you. I mean, this is not a comfortable thing. Just like my friend

from Alabama said when he came. He said, ‘‘You know, it is hard

to vote against a guy like Ronnie White. He is a decent honorable

guy, hard to vote against him, but on the issues he is wrong. He

is, obviously, otherwise, a decent honorable man.’’ But you know,

that old expression we remember from law school, ‘‘Hard cases

make bad law.’’ But this is a hard case, and I just want you to

know my frustration. I wish you were able to be more forthright— not forthright—more direct in your condemnation of things that

you know now to be mistaken, and further, I wish you would understand why—take away the interest groups. I am not a big fan

of interest groups, as you probably know. I am not a—I do not meet

with them any more because I do not trust them, with two exceptions in my experience. But I wonder why—and I will end with

this, and I am sorry—I hope you understand why there are so

many—as this stuff comes out—so many average black Americans

who sit there and say, ‘‘Geez, I don’t want this guy. I don’t want

this guy. I am not crazy about having this guy.’’ Just if you understand that, because you are probably going to be Attorney General,

and I hope that you take away nothing from this except this matters to people, John. Words matter. Words matter. And unless you

have—the more distraught you are, the less you think you can get

representation, the more the words matter.

Sorry. Sounds more like a lecture than anything else, but I do

not mean it that way. That is my frustration.

Chairman LEAHY. Senator Ashcroft, do you wish to respond? Obviously, you have time to.

Senator ASHCROFT. Well, thank you very much.

First of all, I want the make very clear that I repudiate racist

organizations and racist ideas, racist views.

Senator BIDEN. Is the Southern Partisan Magazine racist, in

your opinion?

Senator ASHCROFT. I probably should do more due diligence on

it. I know they have been accused of being racist. I have to say

this, Senator, I would rather be falsely accused of being a racist

than to falsely accuse someone else of being a racist. I have told

my children I would rather have my wallet stolen than for me to

be someone who steals a wallet.

Senator BIDEN. I got that, John, but all those folks behind you,

your experts, they knew this was coming up. Didn’t they tell you

what that magazine is? The guy sitting back to your left, he has

done ten of these. He has forgotten more—he has read every one

of those issues. You know it and I know it. Didn’t he tell you, ‘‘Hey,

this is a racist outfit?’’

Senator ASHCROFT. No.

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Senator BIDEN. What more do you need to know?

Senator ASHCROFT. No. No. I mean, I don’t want to be disrespectful, but for you to suggest that I was told that all these things that

you have alleged are true, I wasn’t told that, and frankly, I have

been told that some of them aren’t true, and I don’t know the

source of your things, but I’m not here to challenge what the senators on this panel say. I’m here to express myself— Senator BIDEN. John, if I am wrong, you should tell me, because

I am operating on this. If I am factually wrong, I would be happy

to hear.

Senator ASHCROFT. Well, I’m not—that’s not my purpose. Let me

express to you that I believe that racism is wrong.

Senator BIDEN. I know you do.

Senator ASHCROFT. I repudiate it. I repudiate racist organizations. I’m not a member of any of them. I don’t subscribe to them.

And I reject them. And had I been fighting in the Civil War, I

would have fought with Grant. I probably would have, at Appomattox, winced a little bit when Grant let Lee keep his sword and take

his horse home with him, but I think that was the right decision.

It was a signal at that time by the people on the ground that they

recognized that some people who fought on both sides were people

of decent will, and it is not time for us to find out who we should

be able to hate now that there is a long time gone by. You know

why we should respect Grant. You know why we should respect

Lee. This Congress has acted to restore the citizenship of Robert

E. Lee, and there are a series of members of this panel that voted

in favor of restoring the citizenship of Robert E. Lee. And at the

time they did so, they said that the entire nation has long recognized the outstanding virtues of courage, patriotism and selfless devotion to the duty of General Robert E. Lee.

Senator BIDEN. John, you are good, but this ain’t about Robert

E. Lee. I just hope when you are Attorney General, you will understand, you have got to reach out.

Chairman LEAHY. Gentlemen.

Senator BIDEN. I have spoken too much.

Chairman LEAHY. Did you have further?

Senator ASHCROFT. Well, I don’t mean to be—really, I don’t have

any purpose for arguing with my friend, and I believe he has a

good heart, and he has the right motive here. And his question is:

Can I serve America as the Attorney General of this country, and

will people be able to have confidence in me? And I assure him that

they will. And for those that don’t have confidence at the ab initio,

if we want to go to the law school phrase, they will, because I will

serve and I will serve well. And if the absence of unanimous confidence in any individual becomes a disqualifier, all we do is to invite groups to signal, and lack of unanimous confidence, and they

paralyze the system.

I will enforce the law. I reject racism. I will reach out to people,

all people, and enforce all of the law, and I respect this panel’s and

this Committee’s dedication, and I don’t have an argument with

the senator.

Chairman LEAHY. Gentlemen, we have extended extra time because the senior senator from Delaware was unable—while representing the Senate at a funeral yesterday, was unable to be here,

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so he had his time for then and today. The witness has had ample

chance to answer the question. Am I correct?

Senator ASHCROFT. I didn’t answer all of the things that—you

know, when a person spends 15, 20 minutes asking a protracted

question, it does place on the respondent a need to sort of say, ‘‘I

want to respond to the nature of the questions and not to all of

them.’’ And I think I did that. I’m not complaining, not asking. I

thank the Chair for its fairness in this respect, and if I come up

with something else that I think I should say, maybe I’ll submit

something.

Chairman LEAHY. As I said yesterday, the witness will not have

to feel his answers in any way are being cutoff. If the nominee feels

at any time there has not been adequate time to answer, as I said

yesterday, we will provide the time. I will provide the time to go

back to any answer that he wants to change, clarify or add to, and

of course, the record is always open for that. As I stated this morning, when I felt that there may have been an errant answer yesterday, I raised that point. Again, if the witness—the nominee does

not accept that analysis, he will also be given time. I want to have

as complete a record as possible. I do not want either the nominee

to feel that he has not had a chance to answer all of the questions

that are asked of him as completely as he wants, but in the same

token, I want to make sure that all senators, both Republican and

Democrat have the opportunity to ask their questions.

With that, I will turn to the Senator from New Hampshire, Mr.

Smith.

Senator SMITH. Mr. Chairman, because of being in and out with

another hearing which I was involved in, is it a 15-minute period?

How much time do we have?

Chairman LEAHY. You have not had a chance?

Senator SMITH. No.

Chairman LEAHY. Then you have 15 minutes.

Senator SMITH. Thank you, Mr. Chairman.

Let me just say in terms of watching, participating in the hearings yesterday with you, Senator Ashcroft, and watching how you

conducted yourself in response to the questions and the comments,

and then again today, my admiration for you is about tenfold beyond what it was yesterday, and it could not get much higher yesterday.

The way that you have risen above the attacks that have been

delivered upon you is remarkable. It is a tribute to you. The fact

that a distinguished person like yourself would have to endure

comments about racism and segregation and all of the other things

that have been said or insinuated throughout this hearing, dredging up racist organization charges and so forth, is really, in my

view, demeaning the U.S. Senate.

You know this—I thought we were going to start off in a spirit

of bipartisanship this year and to try to look at things if we could

on a more even basis. John Ashcroft, the nominee for this position,

has said that he will enforce the law period. He raised his right

hand and took an oath and said, ‘‘I will enforce the law.’’ Even

though I know John Ashcroft well enough to know that if he had

the choice on the enactment of some of those laws, they would be

179

a lot different, if he could have enacted them unilaterally. But he

also said, ‘‘I will enforce the law.’’ That is what this hearing is about, whether or not you think

John Ashcroft will enforce the law. Not enact the law. He had that

opportunity for 6 years here as a U.S. Senator. That is not what

this hearing should be about. Let us stay focused on what it really

is about.

It is ironic too, that where Senator Ashcroft has said that he will

enforce the law, even if he would rather change the law, he would

still enforce it. On the other hand, his critics from the left are saying that if you cannot agree with my view on the law, you cannot

be Attorney General. This is very, very, very, very troubling. You

could disqualify a heck of a lot of people from being Attorney General. One of them was an appointment by John F. Kennedy to the

Supreme Court of the United States, Byron White, who was prolife, one of the leading pro-life advocates on the United States Supreme Court. So I guess we would have to disqualify him as well,

using that kind of a marker.

I think this is thin ice that we are on. This is not a Supreme

Court nomination. This is the President’s cabinet, and I want to

make just a couple of points, Mr. Chairman. I doubt that I will use

the 15 minutes.

A while back this morning, former Senator Danforth testified,

and he made a very good point, I thought, and I would just like

to expand on it briefly. As a lawyer, we are talking now about this

so-called case before the State of Missouri, the Kansas City case.

His point was that as a lawyer, you have an ethical obligation to

vigorously defend your client. That is what you are obligated to do.

Every day in America we defend the most reprehensible people,

murderers, rapists, robbers, thugs, every day, as well we should. It

is the basis of our entire Constitution. If we ever walked away from

that, God help us.

And so I think when we—we would have to disqualify every single lawyer in America who applies the ethical code of his or her

state from being Attorney General of the United States if we are

going the use that marker. So I would hope that we would stay focused here, and say that to imply—even to imply, let alone say,

that somehow a lawyer—in this case the Attorney General who

was defending his state as he is obligated to do by law and by the

ethics of his profession, to somehow imply that borders or comes to

racism is outrageous, and especially since some, even on this Committee, were involved in supporting against the opposition of the

NAACP, I might add, and many other prominent people. People on

this very Committee were supporting certain candidates for reelection to office in spite of that. So we will let the chips fall where

they may.

But let me just add one more point. I might just say, Senator

Durbin, your quote on the Ronnie White matter, when you were

questioning Senator Ashcroft a few moments ago, quote, ‘‘It appears that your conclusion about Justice White is a conclusion that

is not shared by the law enforcement community of the State of

Missouri.’’ I do not know where that came from, but we have a letter from the National Sheriffs’ Association, Missouri Association of

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sition to Judge White. And I might—and Senator Ashcroft, if you

would like to respond or make a comment, feel free to do it. I want

everybody to understand—and I think Senator Ashcroft understands this—I heard all this stuff about how Senator Ashcroft led

the fight to deny Ronnie White. He never spoke to me about it personally, never asked me to do anything other than what my own

conscience would dictate. So I guess I am puzzled by all of this information that seems to be coming to light. But let me just refer

quickly to a letter from one of the victims, who is also a sheriff.

And you know, the issue here—and I am doing this only to get us

back to focus as to what this is about—Judge White had every

right to make the decision he did, as a Judge, every right to do it,

but there are consequences for that. The consequences are you

could be perceived as being against tough law and order, and that

is the way 54 United States Senators saw it. That is not about

race. And to imply that it is, is outrageous.

Let me tell you what it is about. This is from Kenny Jones,

whose wife was murdered. ‘‘I’m writing to you about Judge

White’’—and I’m not going to read it all, I’ve entered as part of the

record—‘‘of the Missouri Supreme Court, who’s been nominated to

be a Federal judge. As law enforcement officers, we need judges

who will back us up, and not go looking for outrageous technicalities so a criminal can get off. We don’t need a judge like White

on the Federal court bench. In addition to being sheriff of Moniteau

County, I am a victim of violent crime. So are my children. In December 1991, James Johnson murdered my wife, Pam, the mother

of my children. He shot Pam by ambush, firing through the window

of our home during a church function that she was hosting. Johnson also killed Sheriff Charles Smith of Cooper County, Deputy Les

Lork of Moniteau County and Deputy Sandra Wilson of Miller

County. He was convicted and sentenced to death. When the case

was appealed and reached the Missouri Supreme Court, Judge

White voted to overturn the death sentence of this man, who murdered my wife and three good law officers. He was the only judge

to vote this way. Please read Judge White’s opinion. It is a slap in

the face to the crime victims and law enforcement officers. If he

cared about protecting crime victims and enforcing the law, he

wouldn’t have voted to let Johnson off death row.’’

‘‘The Johnson case isn’t the only anti-death penalty ruling by

White. He has voted against capital punishment more than any

other judge on the court, and I believe there is a pattern here.’’

And he goes on to say, ‘‘Please write to our Senators Bond and

Ashcroft’’, et cetera. The point being there is nothing here about

racism or segregation, nothing. And to imply otherwise is really, in

my view, less than what this Senate should be about, to say it

mildly. This is the law enforcement people of the State of Missouri,

as well as a victim who was a law enforcement person, and as I

said, I respect Judge White for making that decision. He has every

right to make that decision. But so do we as people here in the

Senate in confirming or not confirming a person to go on the Federal bench. We have a right to use that information and to look at

that information and make a decision as to whether or not that

person should be on the bench.

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So I think I am going to stop here, Senator Ashcroft. You have

had enough questions, I am sure, to last you a long time, but just

to say again that it would be, in my view, one of the most egregious

acts ever committed by this Senate, should be filibustered or not

be confirmed. A man of your qualifications and decency, it would

be—I just cannot imagine that it would even be thought of in this

body to do such a thing. If there is anybody that is more qualified

or ever has been more qualified, I do not know who that person is.

I understand that Senator Hatch—is Senator Hatch here? I

thought Senator Hatch wanted some of my time. I will be happy

to yield it to him or any other senator on my side who would like— Senator Specter, would you like the remainder of my time?

Senator DURBIN. Mr. Chairman? Mr. Chairman?

Senator KENNEDY. [Presiding] Yes?

Senator DURBIN. Since the Senator has mentioned my name, I

would like to just briefly ask unanimous consent to enter into the

record a letter dated October 21st, 1999 from the 4,500 members

of the Missouri State Fraternal Order of Police, in which they say,

quote, ‘‘The record of Justice White is one of a jurist whose record

on the death penalty has been far more supportive the rights of victims and the rights of criminals.’’ Senator SMITH. Well, I have a letter here from the Fraternal

Order of Police, Grant Lodge, who support Senator Ashcroft, a letter to Senator Leahy, dated 10 January, supporting Senator

Ashcroft to be the Attorney General of the United States.

Senator KENNEDY. Both letters will be included as part of the

record.

Senator SMITH. Mr. Chairman, I also have some other documents, the letters from the Sheriffs’ Association, and as well as the

Supreme Court of Missouri Johnson Case that I would like also to

enter in the record.

Senator KENNEDY. They will be so included.

Senator SMITH. Thank you, Mr. Chairman. I yield my remaining

time to Senator Specter.

Senator SPECTER. How much time remains for Senator Smith?

Chairman LEAHY. 4 minutes and 30 seconds.

Senator SPECTER. With a little extra time, Senator Ashcroft, I

would be glad to oblige.

I turn to an issue which has been a major one during the administration of the current Attorney General, and that is the issue of

independent counsel on a statute which has lapsed. And now the

Department of Justice has structured through regulation a classification called Special Counsel. The critical art of that law has been

the difficulty—the Independent Counsel Law, the critical part has

been to have any review of the judgment of the Attorney General

of the United States in declining to appoint independent counsel.

It is possible to structure a legislative review for the special prosecutor, but I would like to explore with you at this time would be

first, what are your general views as to the desirability of having

an Office of Independent Counsel?

Senator ASHCROFT. I am happy to respond to that. Thank you.

May I just—since there was so much talk about race and the

White case in the last—may I just take a few seconds first to just

say that I don’t intend my actions or statements to be offensive,

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and to the extent they are, I’m very ready to say to people that I

don’t want that to be the case, and that I deplore racism and I always will. And I say to people, who want to look at the confirmation record, that I, for 26 out of 27 black judicial nominees, I voted

for them.

And in the Foreign Relations Committee, where it was my responsibility to shepherd the appointment of diplomats to our posts

around the world, I’m sure, given my assignment, that I saw more

people confirmed as minorities to those posts than any other person

in that interval during my service.

I just want it clear that I reject racism, and that I do not intend

my actions or statements to offend individuals, and I sincerely will

avoid that in every potential opportunity.

Let me address the special counsel item which you have raised.

Senator SPECTER. Senator Ashcroft, with only about 2 minutes

left, let me zero in on a point of particular interest to me, and I

will come back to the generalized question when I have another

round.

The difficulty has been in having any review of the Attorney

General’s judgment, and we have had a substantial number of

hearings, as you are well aware, in the Judiciary Committee, challenging the judgment of the Attorney General on declining to appoint independent counsel in a number of specific cases, where

there was a generalized view there was more than enough basis to

do so. Special counsel is the category now, as I have said, for the

Attorney General to appoint outside counsel if a conflict arises. It

is my thinking that to have an effective Independent Counsel Statute or a category of Special Prosecutor, that there has to be a

mechanism for reviewing the judgment of the Attorney General.

And what I would like to see structured, either by regulation

within the department, as the department now has a regulation for

Special Counsel, or a statute which would provide that a majority

of the Majority of the Judiciary Committee, or a majority of the Minority—and I take that standards from the old Independent Counsel Statute—could go to United States District Court and ask for

a review on a standard of abuse of discretion, where there is precedent for the Court to intervene and overturn the exercise of discretion of a prosecuting attorney, and there are some District Court

cases on that point.

What would your thinking be on such a procedure to review the

Attorney General’s discretion?

Senator ASHCROFT. I have lamented, as a member of this Committee, the unwillingness of the Attorney General to act in some

case, and I’m not sure what the remedy is, but one of my ambitions

and one of my aspirations, I should say, if I have the honor of being

confirmed in this responsibility, is to increase our participation and

our—the communication and our cooperation. I would be pleased to

consider with you this kind of proposal, but this is a delicate arena

of the line between the executive and the judicial. And the right

oversight is obviously a very important—pardon me—executive and

legislative—and the right oversight by legislative officials is very

important. So I would be happy to confer with you and to examine

these potentials with you.

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I know that as a career prosecutor—not a career prosecutor, but

once prosecuting and organizing an office of 300 probably prosecutors in Philadelphia, one of the most notable U.S. Attorney’s Office

in America, that you know the need for the right kind of information flow to the person in direction of the office, and if everything

were public, how chilling it could be. So that there are delicate balances here, and I would be pleased to confer with you about these.

Senator SPECTER. Let me explore it with you when my next

round comes.

Chairman LEAHY. I have tried to give the senator from Pennsylvania extra time. He has gone a couple minutes over, and the senator from Washington State has been waiting patiently, and I note

that the senator from Washington State is the newest member of

the Committee. She was also in attendance on behalf of the Senate

at the same funeral as Senator Biden yesterday and did not get her

4-minute opening statement, so if she wants to take that time in

addition to her 15 minutes, that is available.

Senator CANTWELL. Thank you, Mr. Chairman. I appreciate that

and I will defer my opening statement, which was submitted yesterday, and go right to questions, if I can.

Senator Ashcroft, you and I have not met before this morning.

I have not had the opportunity the same as my colleagues of working with you in the past, so I look forward to this question and answer session to, if I can, get some specifics on some policy areas

in your record as well as the process by which you intend to uphold

the law in these key areas. And I will try to be brief in my comments. If you could be brief in your answers, maybe we can get

through a couple of these key issues; otherwise, I will come back

to you.

But first I would like to go to the environment because obviously,

to be sure, the Attorney General plays a significant role in protecting the environment. The Environment and Natural Resources Division of the Department of Justice has been called the Nation’s environmental lawyer. In fact, with 700 employees, you could say it

is the largest environmental law firm in the country.

The Division is charged with several tasks obviously related to

protecting the environment. The Division ensures the environmental laws on the books, whether that is the Clean Air Act or the

Clean Water Act or the Endangered Species Act and vigorously enforces on behalf of its primary client agency, the Environmental

Protection Agency. It also defends the United States against suits

and challenges to Federal laws, and also the Division criminally

prosecutes the worst offenders of the environment.

So there can be no doubt that the Department of Justice through

this Division has a crucial role in maintaining a clean environment

for future generations. Unfortunately, Senator Ashcroft, I am troubled with your environmental record, particularly in attempts to

weaken enforcement tools that EPA has, but as has been said at

this hearing numerous times, the job of Attorney General is different. Now you will be charged with vigorously enforcing the very

environmental laws, some of which you may have disagreed with,

and obviously we have covered this, but it is a very important issue

that I would like to cover. That is, how do you proceed given that

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cises this vital role? Will we continue to see an aggressive Division

that enforces the current law and goes after polluters? And will we

continue to see a very aggressive and vigorous enforcement of the

Superfund laws that ensures that environmental cleanup is done

and completed?

Senator ASHCROFT. Well, let me thank you very much for your

questions, and thank you for the opportunity to meet you this

morning. I appreciate the clarity of your questions.

I have had an opportunity to enforce environmental regulations

before in prior incarnations as the State Attorney General and

Governor. Whether it was fish kills or whether it was making sure

that the way in which Federal projects were operated and power

generation facilities that threatened the wildlife and fish in my

home State, I took action. It is an important Division.

I believe that we should do everything we can to fully enforce the

environmental laws. That doesn’t distinguish it from other Divisions of the Attorney General’s office. It will be my responsibility

to fully enforce the laws in all of them.

I have a commitment to the environment personally as well as

a commitment to the environment that would come as a result of

my oath of office. I happen to be a private environmentalist. Janet

and I own a farm of 155 acres which we have tried to maintain in

ways that enhance the environment, with cultivating the right kind

of trees so it qualifies as a tree farm, sowing the right kind of

grasses, and leaving the right kind of borders between the river

and the rest of the farm so that we do that.

I say that just to let you know that I am a person that believes

that our responsibility is one of stewardship, and that certainly

would reinforce my willingness to obey the law and to enforce it.

Senator CANTWELL. Well, I do have some concerns about your environmental record, but I will leave that aside and get to a specific

question that I think may be very timely, and that is, the Department of Agriculture has recently issued a final roadless area conservation rule. Certainly the implementation of the roadless initiative has been long and somewhat controversial. Already the rule is

being challenged in the court.

As Attorney General, will you aggressively defend and uphold

this rule, which was implemented in accordance with the Administrative Procedures Act? If I am not mistaken, this is exactly the

type of case that the Environmental Defense Section of the Environmental and Natural Resources Division of DOJ is charged with

defending.

Senator ASHCROFT. Very frankly, I’m not familiar with this rule,

and I would have to examine it carefully and make a decision

based on the outcome of my consultation with members of the Department and others in the process.

Senator CANTWELL. It is a very timely issue, and I would like

further information on that as it relates to the particulars of a rule

that has now been put in place and obviously is being challenged

in the courts.

Senator ASHCROFT. I’ll be happy to work to provide you with additional information on that.

Senator CANTWELL. Thank you.

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My second line of questioning is in regards to family planning.

We have learned during the time that you were in the Senate you

have advocated what some would describe as an extreme position

in regards to reproductive choice and contraception. Many believe—

for example, you were a supporter of human life amendment to the

Constitution that would have declared life begins at conception, not

fertilization. Many believe that such a binding legal precedent

would outlaw common contraception such as the pill. And as I have

stated before, you are entitled, obviously, in your previous position

as Senator to your opinions. That said, the nominee of the office

of the U.S. Attorney General, let me ask you specifically about contraception.

Are your personal views opposed to family planning?

Senator ASHCROFT. I think individuals who want to plan their

families have every right to do so.

Senator CANTWELL. In the use of contraception?

Senator ASHCROFT. And I think individuals who want to use contraceptives have every right to do so.

Senator CANTWELL. So in regard—

Senator ASHCROFT. I think that right is guaranteed by the Constitution of the United States.

Senator CANTWELL. So about the laws that create legal rights to

contraceptive coverage, for example, the EEOC recently issued a

decision stating that employers who failed to include contraceptive

coverage in employee health benefit plans engage in sexual discrimination and violation of Title VII of the Civil Rights Act of

1964, as amended by the Pregnancy Discrimination Act.

Notwithstanding your personal opinion, will you defend challenges to this law or initiate actions against employers who fail to

provide such coverage?

Senator ASHCROFT. I have not examined the law on the requirement that a private employer provide coverage in this respect and

am at this time not prepared to comment or to provide advice

about the course of action I would take there.

Senator CANTWELL. And is that something that you wouldn’t

comment further on before your vote on nomination or just this

afternoon?

Senator ASHCROFT. Well, I would defend the rule. You know, it’s

the job of the Attorney General to defend the rule. But in terms

of my own comments about how I feel about it, I haven’t weighed

the legal—I thought you were asking me for advice on it. Maybe

I misconstrued your question.

Senator CANTWELL. Yes, would you defend challenges to the law

or initiate action against employers who did discriminate—

Senator ASHCROFT. I would defend challenges to the law and

seek to uphold the law.

Senator CANTWELL. Including actions against employers who

failed to provide such coverage?

Senator ASHCROFT. I’m not sure I have enforcement authority of

that rule in the Justice Department, were I to be confirmed. And

so I’d be reluctant to say that I would deploy the resources of the

Department of Justice to enforce the rule if the enforcement by

statute focused in another agency.

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Senator CANTWELL. Thank you. I would like to cover one last

issue, if I could, and it follows some line of thinking similar to some

of the questions asked earlier today about judicial appointments.

And I guess I’m trying to, if you will, understand the Ashcroft

standard on your process of judicial appointments.

There is one judicial appointment that I am familiar with, Margaret McEwen, a Federal judge from the Ninth Circuit Court of Appeals, and I won’t go through her various accomplishment, but she

was supported by both Senator Gorton and Senator Murray. And

in the end, after a 2-year delay, she was confirmed by an 80–11

vote on the floor of the U.S. Senate. So in that particular case, your

opposition to Margaret McEwen, I am just trying to understand,

again, the Ashcroft standard in looking at the decision in opposition to that appointment.

Senator ASHCROFT. Frankly, I don’t remember the case. There

were 230 different votes on judges. I do know that 218 times I

voted for confirmation, but I don’t remember the circumstance.

Senator CANTWELL. Well, I would ask if—this is a very important

appointment as it relates to the Northwest, and I guess my concern

is in a speech that you gave—and not to catch you off of comments,

because we all give speeches. This was given in March 1997, in

which you characterized Margaret McEwen as taking marching orders from the ACLU and characterized her efforts as sinister as

it—in, I thought, a very harsh tone against a nominee that you and

10 other Senators voted against. And so if you could give me information about your opposition to her, and I would be happy to provide a copy of these remarks that were part of the Heritage Lectures. But in trying to understand the framework of us moving forward on your nomination, I am trying to understand the framework of what you applied to other appointees and reflection upon

that as you put your own team together in the various divisions

underneath you.

Senator ASHCROFT. Well, thank you, Senator. Let me just add

this: The standard for judicial nominations and lifetime positions

are integrity, a commitment to rule of law, no issue litmus test.

President-elect Bush has said he wants judges who will interpret

the law, not legislate from the bench. I’ll be happy to provide you

additional information about the particular inquiry you made, and

thank you—

Senator CANTWELL. Well, I think my question relates to the fact

that she was held up for 2 years and your comments on record

have been very harsh. So I’d like to know your criteria and standards, so I appreciate you getting back to me on that.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you.

The Senator from Kansas will be recognized next. For those who

are watching this on television, they will see that the little red and

green lights have been going on. Somehow that seems to have broken down the last few minutes. I am having the staff notify me

when there is 2 minutes left in the Senator’s time, and I would just

make that announcement as unobtrusively as possible, both for

Senator Brownback’s case but also for Senator Ashcroft’s case.

Senator Brownback?

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Senator BROWNBACK. Thank you very much, Mr. Chairman, and

thank you, John, for hanging in here. It has, I am sure, been a long

day, and you would rather have been at the dentist all day than

here with the difficulties. I note some of the discussion back and

forth with some amusement at points. The questions on the magazine interview that you did, which I thought was interesting from

the standpoint a lot of people do interviews in magazines. I noted

that Al Gore gave interviews to Playboy and Rolling Stone magazine, and some of the advertisements in the back of the magazines

were for drugs, certain sexual items, paraphernalia, or such that

I do not care to really repeat them right here. However, I think it

would be fair to assume that Vice President Gore did not endorse

those advertisements.

Senator ASHCROFT. Nor do I.

Senator BROWNBACK. Very good.

Senator ASHCROFT. I’ll get that out as quickly as I can.

Senator BROWNBACK. And that is not to make light of the line

of questioning, but it is to say that there are a lot of publications

out there, and none of us endorse these horrible lines that some

would put in in those. The ideas of racism, it is just deplorable. But

there are a lot of magazines that put a lot of things out there, and

just because a person grants an interview doesn’t at all mean that

they agree or— Senator ASHCROFT. Let me see if I can clarify this. If the magazine has done the things that people on the Committee have said

to me that it does, I repudiate the magazine. I don’t want to be a

part of a magazine—I don’t even want to do an interview with a

magazine that in any way promotes slavery. I don’t. That’s my

not—I had no understanding that that was the case about the magazine. I don’t know if that is the case. But if it is, I repudiate it.

Slavery is abhorrent. It’s a stain on the fabric of America’s history and life, and it’s one we’ve had a hard time scrubbing out. And

we never will and perhaps we shouldn’t scrub out our memory of

it because it should warn us against the kinds of things that people

can do to each other.

Senator BROWNBACK. Thank you. I want to go down the line of

questioning on a couple things on law enforcement, and I noted,

Mr. Chairman, that in the panels assembled for the hearings, nobody has been invited, not a single member of the law enforcement

community on these panels. And I find that to be an unfortunate

omission since we are here to review the qualifications of the Nation’s chief law enforcement officer, the Attorney General of the

United States. So with the Chairman’s permission, I would like to

read and submit for the record a letter I received yesterday from

the National Sheriffs’ Association endorsing John Ashcroft. It says, ‘‘On behalf of the National Sheriffs’ Association, I’m writing to offer

our strong support for the nomination of Attorney General-designate John Ashcroft. As a voice of elected law enforcement, we are

proud to lend our support to his nomination and look forward to

his confirmation by the Senate. As you know, NSA is a non-profit

professional association located in Alexandria, Virginia, representing nearly 3,100 elected sheriffs across the Nation, and it has more

than 20,000 members, including deputy sheriffs, other law enforcement professionals, students, and others. NSA has been a longtime

188

supporter of John Ashcroft, and in 1996, he received our prestigious President’s Award. After reviewing Senator Ashcroft’s

record of service as it relates to law enforcement, we have determined that he will make an outstanding Attorney General and he

is eminently qualified to lead the Department of Justice. NSA feels

that Senator Ashcroft will be an outstanding Attorney General for

law enforcement and the U.S. Senate should confirm him.’’ And it

is signed by the president of the organization, and I ask that that

be submitted into the record.

Chairman LEAHY. That and the other letters from law enforcement agencies which have been sent here will all be—if they have

not already been included in the record, they, of course, will be.

Senator BROWNBACK. Thank you, Mr. Chairman.

I also note along those same lines, I would like to point out that

Senator Ashcroft, who has been designated by President-elect Bush

to be the Nation’s chief law enforcement officer, has also been endorsed by the Law Enforcement Alliance of America. While I won’t

read their entire endorsement letter, I would like to submit it in

its entirety for the record. And I would note at the outset that this

is the largest coalition of law enforcement, crime victims, and concerned citizens in the country. They state in here, quote, they are

‘‘firmly and vociferously working to ensure that former Missouri

Senator John Ashcroft is confirmed as the Nation’s highest-ranking

law enforcement officer.’’ That is a pretty good endorsement. The

LEAA has endorsed President-elect George W. Bush’s choice to

head up the Justice Department ‘‘because of his proven tough-oncrime record, not only in the U.S. Senate but also as Missouri’s

former Governor and Attorney General. John Ashcroft has consistently demonstrated his profound respect for the sanctity of the law.

Because the law and order issue is fundamental to the demands of

an Attorney General, Senator Ashcroft exemplifies the kind of individual who can be trusted to uphold the law. There is no doubt

that John Ashcroft will be a guardian of liberty and equal justice.’’

I ask that be submitted into the record as well.

Then from the Kansas Attorney General Carla Stovall, Carla

Stovall sent me a letter urging my support for John Ashcroft to the

esteemed position of United States Attorney General. While Carla

Stovall and I don’t agree on all the issues, we have a great deal

of respect for each other, and she sent this letter in support of John

Ashcroft: ‘‘I’m writing to urge you to support John Ashcroft for the

esteemed position of the United States Attorney General. Senator

Ashcroft, as you know, at one time in his career held the position

of Missouri Attorney General and served as the President of the

National Association of Attorneys General. I am hopeful he will be

responsive to the interest and needs of the States as we deal with

the Department of Justice on many issues of mutual concerns.

While I have numerous philosophical differences with the positions

I’ve read that Senator Ashcroft has taken over the years, I do believe President-elect Bush should be afforded the right to have the

men and women he has selected for key posts be confirmed by the

U.S. Senate. I hope his intentions are so honored by your colleagues.’’

I submit that into the record as well.

189

Now, an issue that I think is a major current one facing the

country that will be in the hands of the Attorney General coming

up is an issue of drugs, in particular methamphetamine. I want to

direct your attention—and I have a couple of questions along that

line.

I think we have to do everything we can to combat this scourge

on the Nation, and at the risk of being repetitive, I have received

again another letter yesterday, this one from the Director of the

Kansas Bureau of Investigation describing what is taking place in

my State in this problem with methamphetamine. And I think we

unfortunately are typical of many other places across the country

of this scourge of methamphetamine. He states this in his annual

report of what is going on in the State of Kansas regarding drugs.

He said, ‘‘In a word, the bad news is methamphetamine. In law enforcement, we seldom have the luxury of selecting our targets of

preference, our goals and objectives. We are compelled to face what

is in front of us at the time. We must confront the most serious

threats challenging the safety and security of our citizens. In Kansas, the past several years and at the present time and in the foreseeable future, what is in front of us is methamphetamine and

local meth labs. Kansas law enforcement seized approximately 700

meth labs. The final count is not yet tabulated, but obviously another record. At any rate, narcotics in general and methamphetamine in particular remain our agency’s top investigative and

forensics priorities. We have no other choice. Such is the demand

for our services and on our resources for municipal, county, and

State law enforcement agencies and Kansas prosecutors.’’ To put things in perspective, and then I would like to ask you

your views on what we need to do about methamphetamine, our

laboratories in 1994 received 5,513 drug case submissions. Last

year there were just under 9,000 new drug cases. Meth lab seizures

since 1994 have increased almost 15,000 percent. We continue to

receive an average of 33 new drug cases in our laboratory every

business day.

Chairman LEAHY. I would just note the light is back on and it

is at 3 minutes.

Senator BROWNBACK. OK. Thank you.

I would appreciate your comments on what we should do about

meth labs and methamphetamine and its scourge on this country,

John.

Senator ASHCROFT. Well, as you well know, Missouri has had the

unfortunate distinction of being one of the two meth capitals in

America. The State of California and the State of Missouri have led

the Nation in meth labs, and it’s certainly a sad thing. And I know

that local law enforcement authorities have needed the assistance

of HIDTAs, high-intensity drug-trafficking area, Federal assistance

programs to help us and have also needed the assistance of the

DEA, part of the Justice Department, in dealing with the contamination that is left behind when these meth labs are either abandoned or broken down by law enforcement officials.

The residue of methamphetamine production, which all can be

made from stuff you buy at a variety store, is toxic and it’s dangerous. And I think the role that we must take is comprehensive.

And I was pleased—I have mentioned on several occasions the

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privilege I had of working with Senator Feinstein of California not

only to have the right penalty structure so this drug which is characteristic of rural America in many cases has the same seriousness

attached to it that some of the urban drugs like cocaine do—and

I think that’s not only fair but necessary for us to fight against the

drug—but, second, that we have the ability to clean up and help

especially the small—in my area, a rural sheriff’s department

doesn’t have toxic cleanup capacity, and so we need cooperation

there.

But methamphetamine has been disastrous to the lives of individuals, and we need to explore treatment and to be emphasizing

education. That’s why in the last measure which was signed into

law just less than 6 months ago we had a component for assisting

law enforcement, assisting in law enforcement training, assisting in

cleanup, assisting in education, and assisting in treatment. And I

think this kind of problem only remediates when we have good cooperation between the local law enforcement officials and people at

the national level. And it would be my ambition and my aspiration,

if I have the privilege of being confirmed to this office, that we

would keep those relationships, some of which you recite earlier, at

the very highest level so that we can work together.

Methamphetamines are just one series of drug problems that could

very well steal a substantial portion of the future of America from

us.

Our young people are only 25 percent of the population. They are

100 percent of our future.

Senator BROWNBACK. I appreciate your work on that, and I also

appreciate your common-sense approach on the protection of the

weakest, most vulnerable amongst us in this society, no matter

what their stage in life. I think that speaks volumes about a society if we are willing to protect those who are the weakest. And

thank you for doing that.

Thank you, Mr. Chairman.

Chairman LEAHY. We have gone through the first round of questions, and we will now take a break for 10 minutes to allow the

witness and others to stretch their legs, and we will come back at

the end of that time.

[Recess from 4:10 p.m. to 4:42 p.m.]

Chairman LEAHY. We will give a moment or two for everyone to

have a chance to come on in.

So that we all understand the procedure, we are going to go to

5-minute rounds now, and I would really urge members to try to

keep it as close to that time as possible and that we do it in the

usual fashion.

I understand, Senator Hatch, everybody on your side has had

their initial— Senator HATCH. That is right. Everybody has.

Chairman LEAHY. Everybody has on this side, and I know a

number of Senators have had other confirmation hearings and have

been balancing their time, but let me begin.

In October 1997, President Clinton nominated James Hormel to

serve as the U.S. Ambassador to Luxembourg. He was an immanently qualified nominee, had a distinguished career as a lawyer,

a businessman, an educator, a philanthropist. He had diplomatic

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experience as the Alternate U.S. Representative to the U.N. General Assembly. Luxembourg’s Ambassador to the U.S., because as

we always do with Ambassadors, we check first with the country

that he would be sent to, to see if he would be acceptable. They

said the people of their country would welcome him. A clear majority of Senators were on record as saying they would vote for his

confirmation. That vote never occurred because it was blocked. In

the Foreign Relations Committee, only two Senators voted against

him, Senator Ashcroft and Senator Helms.

I am told, Senator Ashcroft, you did it without attending the

hearing or submitting questions or statements for the record. You

did say at a luncheon with reporters that, ‘‘People who are nominated to represent this country have to be evaluated for whether

they represent the country well and fairly. His conduct in the way

in which he would represent the United States is probably not up

to the standard that I would expect.’’ It would appear that you were referring to his sexual orientation,

although this is a man that, while you placed a hold on his nomination, all but one other member, Republican and Democrat, in the

Foreign Relations Committee voted for him.

Former Secretary of State in President Reagan’s administration,

George Shultz, strongly supported him. After you voted against his

nomination in Committee, James Hormel wrote a letter. He asked

to meet with you regarding his qualifications. He followed up with

a number of phone calls, to your office. You did not return the

phone calls. Your staff did not. You refused to meet him, which is

similar to a complaint made by Congressman Conyers, who shared

concerns about your nomination.

Now, I know it is traditional for Senators to extend the President’s nominees the courtesy of a meeting. I don’t think I have ever

declined meeting with any nominee of any President when they

have asked to. I know of no Senator who has refused to meet with

you when you have asked. So I am asking you this. Did you block

his nomination from coming to a vote because he is gay?

Senator ASHCROFT. You know, I did not, and I will enforce the

law equally without regard to sexual orientation if appointed and

confirmed as Attorney General.

He just addressed these issues as little bit since they— Chairman LEAHY. Why did you refuse to—why did you vote

against him, and why were you involved in an effort to block his

vote—his nomination from ever coming to a vote?

Senator ASHCROFT. Well, frankly, I had known Mr. Hormel for

a long time, and he had recruited me when I was a student in college to go to the University of Chicago Law School.

Chairman LEAHY. He was your dean, was he not?

Senator ASHCROFT. At the University of Chicago, he was an assistant dean of the law school.

Chairman LEAHY. OK.

Senator ASHCROFT. He, I believe, had focussed his efforts on admissions processes and things like that. The dean of the law school,

if I am not mistaken, was a fellow named Phil Neill, but I did know

him. I made a judgment that it would be ill-advised to make him

Ambassador based on the totality of the record. I did not believe

that he would effectively represent the United States in that parVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00205 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.002 SJUD4 PsN: SJUD4
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ticular post, but I want to make very clear sexual orientation has

never been something that I have used in hiring as in any of the

jobs in any of the offices I have held. It would not be a consideration in hiring at the Department of Justice. It hasn’t been for me.

Even if the executive order would be repealed, I would still not consider sexual orientation in hiring at the Department of Justice because I don’t believe it relevant to the—

Chairman LEAHY. To what extent will the fact—

Senator ASHCROFT.—Responsibilities.

Chairman LEAHY. I am not talking about hiring at the Department. I am talking about this one case, James Hormel. If he had

not been gay, would you have at least talked to him before you

voted against him? Would you have at least gone to the hearing?

Would you have at least submitted a question?

Senator ASHCROFT. I am not prepared to re-debate that nomination here today. I am prepared to say that I knew him. I made a

judgment that it would be ill-advised to make him Ambassador,

and as a Senator, I made the decision that based on the totality

of his record that I didn’t think he would effectively represent the

United States.

Chairman LEAHY. And it was your conclusion that all the other

Senators on the Foreign Relations Committee, with the exception

of Senator Helms were wrong and you were right; that George

Shultz who had been the Secretary of State under President

Reagan was wrong and you were right, and the people of Luxembourg who had the full record on Mr. Hormel were wrong and you

were right, and you did that without either meeting with him,

going to the hearing, asking a single question, or even answering

his letter.

Senator ASHCROFT. No. I did not conclude that I was right and

they were wrong. I exercised the responsibility I had as a Senator

to make a judgment. I made that judgment. I expected other Senators to reach judgments on their own. They have a responsibility

to do that. I have a responsibility to do what I did, and based on

the totality of the record and my understanding, I made that judgment. I did not pass judgment on other Senators or upon those who

endorsed his nomination.

Chairman LEAHY. But part of that judgment was to help make

sure that these other Senators never got a chance to vote on Mr.

Hormel on the floor. So, basically, you substituted your judgment

for what appears, at least by those who stated their willingness to

vote for him—you substituted your judgment for a majority of the

U.S. Senate.

Senator ASHCROFT. I don’t believe I put a hold on Mr. Hormel’s

nomination.

Chairman LEAHY. Never?

Senator ASHCROFT. I don’t believe I put a hold on Mr. Hormel’s

nomination.

Chairman LEAHY. If you find otherwise, feel free to correct the

record on that.

Senator Hatch?

Senator HATCH. As one who openly supported Mr. Hormel because of his experience, you made the decision based upon your

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knowledge and the totality of the evidence, and as a Senator, you

had a right to do so. Is that right?

Senator ASHCROFT. That’s correct.

Senator HATCH. I mean, we can disagree once in a while around

here—Senator ASHCROFT. I think that— Senator HATCH.—Or do we just have to play the political correctness game right on down the line?

Senator ASHCROFT. Well, I made a judgment based on the totality of the record. I am one of— Senator HATCH. I accept that.

Now, Senator Ashcroft, isn’t it true that while it has been suggested that as Attorney General, you essentially mounted too vigorous a defense of your client in the State of Missouri in the St. Louis

school litigation? You were the one insisting to State officials that

the court orders be followed. Indeed, didn’t the Democratic State

Treasurer get so frustrated with your insistence that orders to pay

for students’ transportation be complied with that he told the press

that he was planning to hire outside counsel to mount a more vigorous challenge to these orders? Is that correct?

Senator ASHCROFT. That’s my recollection.

Senator HATCH. All right. In other words, while some have criticized you for defending your State in these matters, others, including the Democratic State Treasurer, were criticizing you for not

litigating them hard enough. Is that right?

Senator ASHCROFT. That’s correct.

Senator HATCH. Well, so, in fact, you were being criticized for defending the State while the Democratic State Treasurer was resisting complying with the court orders which you were insisting he

had to comply with. Now, I sense maybe a little serious hypocrisy

here. Isn’t what you were doing simply following the law and discharging your duties in defense of your State as a State Attorney

General?

Senator ASHCROFT. I believe that I was faithfully discharging my

duties in protecting the interest of the State and the children in

the State. When the State Treasurer balked at writing the checks,

it became necessary to send a special delegation from my office to

him to indicate to him that we believed compliance with the law

was the inescapable responsibility, that we had the duty and responsibility to resist in the courts where we felt like there was injustice, but upon the conclusion of the matter by the courts, our

duty, we felt, was to pay the bill, and I still believe that to be the

case. And fortunately, the State Treasurer at the time made the decision to abandon plans for a separate counsel and to go ahead and

make the payments.

Senator HATCH. Mr. Chairman, I would like to return to one

point raised earlier today where Senator Ashcroft was criticized for

his defense of the State of Missouri in the school desegregation

cases.

Well, Jay Nixon, Secretary and Senator Ashcroft’s Democratic

successor, and the current Attorney General also opposed State

funding for desegregation, at least that is my understanding. Is

that true?

Senator ASHCROFT. Yes, it is true.

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Senator HATCH. Well, let me get it further. Jay Nixon took many

of the same positions as John Ashcroft. Yet, Senator Ashcroft has

been attacked by some of our Democratic friends, and Jay Nixon

has been supported by Democratic friends. Indeed, many of them

campaigned for him. Am I wrong in making those comments?

Senator ASHCROFT. I think it is fair to say that he has been supported by Democrats. He is the Democrat Attorney General of the

State.

Senator HATCH. I don’t blame him for that. I am just saying that

it just seems like kind of a double standard to me.

Senator ASHCROFT. Well, the standard that I referred to was the

need to represent the State and to defend its interests, but when

a matter would be concluded, we complied with the orders—

Senator HATCH. All right.

Senator ASHCROFT.—Of the Federal District Court and of the

Eighth Circuit Court of Appeals and of the United States Supreme

Court.

Senator HATCH. Senator Ashcroft, I think Senator Cantwell

raised an important issue regarding enforcement of environmental

laws in which you have a solid and positive record. For example,

as Missouri Attorney General, you aggressively enforced Missouri’s

environmental protection laws against polluters including an action

brought to prevent an electric company from causing oxygen levels

and waters downstream from the powerplant to fall, thereby harming fish; and to recover damages for fish kills, a successful action

brought against the owner of an apartment complex and an action

against an owner of a trailer park for violations of the Missouri

clean water law relating to treatment of waste water.

Furthermore, as Missouri Attorney General, you filed numerous

amicus briefs, friend of the court briefs, supporting environmental

protections. For example, Pacific Gas and Electric Co., the State

Energy Resources Conservation and Development Commission, a

1983 case, you filed a brief supporting a State of California law

that conditioned the construction of nuclear powerplants on findings by the State that adequate storage facilities and means of disposal are available.

In Svorhas v. Nebraska, a 1982 case, you endorsed the State of

Nebraska’s effort to stop defendants from transporting Nebraska

groundwater to Colorado without a permit.

Let me just mention one more. In Baltimore Gas and Electric

Company v. Natural Resources Defense Council, Inc., 1983, you

filed a brief supporting the Natural Resources Defense Council’s

position on tougher environmental relations relating to the storage

of nuclear waste.

Now, I could go on and on. This is impressive, and as U.S. Attorney General, will you similarly enforce our country’s environmental

laws?

Senator ASHCROFT. I will enforce the laws protecting the environment, and to do so to the best of my ability. It is a public trust,

and it is a special responsibility to the next0 generation.

Senator HATCH. Well, thank you, Senator. My time is up.

Chairman LEAHY. Senator Kennedy.

Senator KENNEDY. Thank you very much.

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Of course, Jay Nixon, no matter how nice a fellow he may be, is

not up for Attorney General. That is the major difference. That is

the big difference in this particular case.

Now, Senator Ashcroft, yesterday and today, you testified that

you will uphold your oath of office to defend the Constitution. Five

times before, you took that same oath. As Attorney General and

Governor of Missouri, you said, ‘‘I swear to uphold the Constitution

of the United States and of the State of Missouri and to faithfully. . .myself in the office, so help me God,’’ and yet, you fought

the voluntary school desegregation in St. Louis. In fact, Judge Stephen Limbaugh who was appointed by President Reagan noted

that the State has resorted to factual inaccuracies, statistical distortions, and insipid remarks regarding the Court’s handling of the

case. Limbaugh continued to warn the State to desist in filing further motions grounded in rumor, unsubstantiated allegations of

wrongdoing. He added that the State even resorted to veil threats

toward the Court to thwart implementation of the previous order.

That was his estimate.

When you became Attorney General in 1976, Roe v. Wade, guaranteeing a woman’s right to choose, had been the law of the land,

and needless to say, all during this period of time as after the

Brown v. Board of Education. Now, when you became Attorney General in 1976, Roe v. Wade

guaranteed a woman’s right to choose, had been the law of the land

for 3 years during the period from 1973 to 1976. The Supreme

Court had not altered its original ruling that the decision was settled law, but during the period between 1976 and 1992, the 16

years that you served as Attorney General and Governor of Missouri, you became one of the Nation’s most aggressive leaders of

the strategy to dismantle or reverse that decision protecting a

woman’s right to choose. You brought case after case in the lower

Federal courts. You pressed those cases all the way to the United

States Supreme Court. You personally argued the Planned Parenthood case in the Supreme Court. You signed legislation into law to

try to overturn Roe and to severely restrict a woman’s right to

choose, and in a 1991 dinner, you boasted that no State had more

anti-abortion cases that reached the Supreme Court than Missouri.

Isn’t there a serious loophole in your view of your oath of office?

You say you will enforce the laws of the land as long as they are

still on the books, but in the fundamental areas like civil rights,

women’s rights to choose, gun control, when you don’t agree with

the laws on the books, you have demonstrated beyond any reasonable doubt that you will use all the powers of your office to undermine those laws, to persuade the courts to overrule them. That is

what you have done very time before, every time. So why will it

be any different this time?

Senator ASHCROFT. Let me just say to you that I have lived within the rulings of the court in every one of those settings. Roe v.

Wade defined a setting which said that abortions were not to be

regulated or not to be forbidden, but it left a very, very serious gap

in the health care system regarding reproductive health services.

If you couldn’t regulate abortions, could you have minimal standards for abortion clinics? Could you require that abortions would be

conducted by physicians instead of back alleys? Could you require

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that there be certain conditions like parental consent for minors

who were going to have an abortion? Could you require that there

be certain counseling so that young women who were going to get

an abortion so that they could be assured they were making a decision that was in their best interest and that they understood the

health impacts? All of these questions were things that were left

unanswered and unresolved by the case of Roe v. Wade, and virtually every jurisdiction in the United States began to find ways

to safeguard everything from maternal health to provide the right

framework in which to exercise its responsibility as it related to

this situation in reproductive health care.

Senator KENNEDY. Well, my point, though, Senator, is that you

lived within the rule because you had to. That was the law, but you

tried to change and alter and took great pride in it, and we have

heard based upon deep-seated beliefs which I respect, but that is

the record. You took the oath of office all those times as Attorney

General and Governor and still were willing— Senator ASHCROFT. Senator— Senator KENNEDY.—In these areas— Senator ASHCROFT. Senator, let me respond. We are out of time

on this, but I think implicit in what you are saying here is that

a person swears to uphold the law. It means if he goes into government, he can’t govern by way of changing the law. Every time— and if you will allow me to answer this question. I have been very

patient in this respect.

Senator KENNEDY. OK.

Senator ASHCROFT. And I would just ask the Senate for the right

for me to respond.

Chairman LEAHY. The Chair will give you whatever time you

need. I have said that a dozen times during this hearing.

Senator ASHCROFT. Mr. Chairman, I appreciate that assurance

as well, but I would like to have an uninterrupted time to explain

my position here, and all the assurances of time will not allow me

to make a statement which I think I ought to be able to make here,

and I think in fairness, I would request that.

Now, you have criticized me because I said that I would uphold

the law and the Constitution of the United States, and then I did

things to define the law by virtue of lawsuits. I did things to refine

the law when I had an enactment role which is the job of a Governor when he signs things into the law.

I don’t think it is subverting the Constitution for a Governor to

sign a change in the law. I don’t think it is a breaking of his oath.

I think all those things are done within the framework of the law

and within the framework of the Constitution.

There seems to be a misunderstanding here today, and I am

sorry that I have this responsibility to clarify it that when someone

tests an order in court that someone is defying the law. Frankly,

I have always been raised to believe that the way you tested things

was take them to court, that the judicial system was established

for the purpose—for the purpose of resolving differences. That is

what our—that is why the Constitution sets it up, and so that, yes,

when the State was offended by an order which we thought was

illegal, our view was not to disrespect it. Our view was not to disobey it. Our view was to litigate it, and then if it came out in our

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direction, we were winners, and if it came out against us, we abided by the law.

You raised the case that I argued in the Supreme Court. There

were a handful of different provisions there, some the Supreme

Court said no, these don’t pass muster, some the Supreme Court

said these pass muster.

Now, I submit to you that to participate in the development of

the law is not to violate your oath as long as you participate in the

development of the law in accordance with the opportunities expressed.

Now, I defended the State of Missouri. I defended the State of

Missouri aggressively. That is the job of the Attorney General.

Jay Nixon has done the same. All the Attorneys General—Jack

Danforth did it before I did it. Jay Nixon did it after I did it. That

is the job of an Attorney General, and my job as Attorney General

would be for me to defend the law of the United States and I will

do it, all the laws. That is my job.

Now, one of the laws which might pass is a law that might deal

with partial-birth abortion. Now, I don’t know whether you would

ask me if the Congress comes up with a law that relates to that

issue to abandon my duty to defend that law. A majority of the

members on the panel of this Committee voted in favor of such a

law in the last Congress, and I think if Janet Reno—pardon me— if Attorney General Reno had defended the law, she wouldn’t have

violated her oath of office. So I just—I want to say that it is not

uncommon for Attorneys General to defend the interests of their

States. That is what their job is, and it is not a violation of their

oath of office or the Constitution of the United States to seek to

make sure that what is done at the State level is consistent with

the Constitution at the State level or consistent with the Constitution at the national level, and when we swear to uphold the oath

of office, I think we are swearing to do things in an orderly and

lawful manner.

Jay Nixon has done that as the Attorney General of Missouri. I

don’t criticize him.

I’m sorry, Mr. Chairman. I have gone too long, and I apologize,

and I thank all of you for allowing me to respond.

Senator KENNEDY. Just to finish it—but I appreciate your response—my sense, Senator, is that you were attempting to overturn the law on the Roe v. Wade. It wasn’t just testing it to find

out its limits. It was to overturn it. That was the thrust.

The reason I raise this is because earlier today you gave the assurances in response to Senator Schumer about how you would

treat that case in the future, and the logical question came into my

mind that if you challenged it in the past, having taken the oath

of office, wasn’t there a good likelihood that you would challenge

it in the future after taking it. That is the— Senator ASHCROFT. Oh, I think that is a very good question. I am

very pleased to have a chance to answer that.

When the State Legislature of Missouri passed a law that needed

to be evaluated in that context, I advanced that law. It was my job.

I advanced that in the courts to defend it. But my job as Attorney

General of the United States will be to defend the law and Constitution of the United States as it’s been articulated. And I think

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for me to have abandoned my responsibility as the Attorney General of the State would have been to set myself outside the system

at that time just as much as it would be for me to set myself outside the system if I were to break my word and not defend the law

that I would be sworn to uphold and defend if I am honored with

the confirmation by the U.S. Senate.

Chairman LEAHY. I would note that the Chair, at the request of

the nominee, extended more than double the time so that he could

have an uninterrupted answer, and he had it. I would hope that

we might follow the example, always of a hopeful nature that we

could follow the example of Senator Hatch and myself, who stayed

within seconds of our time.

I turn to the distinguished soon-to-be President pro tem.

Senator THURMOND. Thank you.

Senator Ashcroft, I want to congratulate you on the tremendous

support and endorsements you have received. For example, I notice

that you were endorsed by the National Association of Korean

Americans. Also, the largest grass-roots Jewish group in America

has urged the Committee in a letter to Senator Hatch to confirm

you. They wrote, and I quote, ‘‘We know John Ashcroft to be a man

of honesty and integrity, not only in regard to his personal and professional dealings but also in a broader, more profound sense.’’

What stronger endorsement can anyone get than that? I congratulate you. I think you are honest, I think you are capable, and I

think you are courageous. And I expect to vote for you.

Thank you.

Senator ASHCROFT. Thank you, sir. I am grateful to you.

Senator KENNEDY. [Presiding.] Senator Kohl?

Senator KOHL. Thank you very much.

Senator Ashcroft, the recent revelations about Firestone tires

and tread separation have generated tremendous concern throughout the country about tire safety. I am sure you share in the distress about the defective tires and the efficiency of the recall. I

wonder whether you share my concern that evidence of the defective tires was kept in for far too long through legal settlements

that gagged the disclosure of the information vital to the safety of

the driving public. In product-defective cases like Firestone, corporate defendants often ask plaintiffs to accept secrecy agreements

as part of a settlement. Sometimes these orders serve a legitimate

purpose, for example, keeping a trade secret confidential. But all

too often these agreements simply hide vital information that could

potentially affect the lives of many, many thousands of people and

certainly general public health and safety.

The Sunshine in Litigation Act would compel judges to consider

the impact on public health and safety before accepting secrecy orders. Since the Firestone cases, this legislation is necessary I believe now more than ever.

At a hearing before this Committee in 1995, I asked respected attorney Ted Olson about this bill. You probably know him as the

man who argued the election case for President-elect Bush before

the Supreme Court. Mr. Olson agreed with me, saying, and I quote,

‘‘It is the public’s business that is taking place before the courts,

and there ought to be an awfully good reason before the courts are

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used as an instrument and the public cannot know what is going

on.’’

I ask you, Do you agree with Mr. Olson on this issue? And as

the Nation’s top litigator, would you sign off on a Justice Department settlement that concealed information vital to the health and

safety of the American public?

Senator ASHCROFT. I believe, if I understand Mr. Olson correctly,

that I do agree with him. I think unnecessarily hiding or otherwise

concealing from the public those kinds of things would be against

the interests of the people. I think I would have to consider each

case on its individual merits, but I think there’s great danger in

not providing public information.

As it related to the Firestone Tire case, I was active following

that because I don’t think we have a good enough clearinghouse for

providing information about recalls. And I would hope that the

United States could find a way to take a lead in providing, if nothing more than a clearinghouse so that we could know when problems have emerged with products anywhere in the world.

Senator KOHL. The recalls are one thing, but, you know, we are

talking about judges to allow companies to sign settlements with

people who sue that give them money in return for gagging the settlement and as a result defective products continue to be sold.

Doesn’t that strike you as being a wrong thing to do in the United

States? And wouldn’t you agree that judges should at least consider, which is all this court— Senator ASHCROFT. Yes.

Senator KOHL. Just consider the impact on the public health and

safety before they agree to a gag order.

Thank you. One more, child safety laws. You have consistently

voted against gun safety proposals, including the moderate child

safety lock amendment that Senator Hatch and I wrote. You argued that we need to enforce the current gun laws rather than pass

new ones. The Senate and the House passed the child safety lock

provision overwhelmingly, and polls consistently show that about

80 percent of the American public agrees that we should sell all

handguns along with a child safety lock.

Now, everyone agrees that we need to enforce the current laws

as a part of a comprehensive gun safety strategy. Unfortunately, no

matter how many prosecutors we have, 10,000 children a year will

still be involved in accidental shootings unless we make it virtually

impossible or very difficult for children to fire the guns.

And so I ask you, Would you be willing to reconsider? Would you

be willing to consider whether or not it is legitimate along with a

handgun to see to it that a child safety lock is sold? To put it to

you another way, what would you have against it?

Senator ASHCROFT. Thank you, Senator Kohl. Let me try and answer this very quickly. I do support the Second Amendment and

the right to bear arms for citizens. But as I indicated earlier, there

are things that are within the range of that that can be done, and

I don’t think, for instance, child safety locks offend the Constitution

of the United States. The President-elect has expressed himself in

favor of a program for providing child safety locks, and I’d be very

happy to advance that interest of his and to work with you in

terms of improving our performance there.

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Senator KOHL. But that falls a little bit short, and this is my last

question because my time has run out. It falls somewhat short to

see to it that every handgun that is sold has a child safety lock.

Whether it is free or whether they pay for it is another question.

But I am suggesting that it makes common sense, and I’m asking

you your opinion. It is common sense, along with the person who

buys a handgun, should also have a child safety lock. There is no

requirement that they have to use it. That is not written into this

law. If they don’t want to use it, they don’t use it. But shouldn’t

we, in the interest of our children, see to it that when a handgun

is sold, a child safety lock accompanies that handgun?

Senator ASHCROFT. It’s my understanding that the Presidentelect of the United States would support legislation requiring child

safety locks and then supporting the provision of child safety locks

with that requirement, and I would be happy to participate with

the President in achieving that objective.

Senator KOHL. I thank you.

Senator ASHCROFT. Thank you.

Chairman LEAHY. The senior Senator from Pennsylvania.

Senator SPECTER. Thank you, Mr. Chairman.

Picking up on what Senator Kohl has said, the business about

disclosing those agreements on product liability cases is very much,

in my view, in the public interest. As I recollect it, we had a vote

on an amendment offered by Senator Kohl which passed, and then

the bill was taken down. And I would urge you to take a look at

Senator Kohl’s recommendation.

Senator ASHCROFT. I’d be happy to do so.

Senator SPECTER. When you take a look at Firestone and Ford

and the kind of conduct that they engaged in, there was a reckless

disregard for the safety of people who died. More than 100 people

died. And legislation has now been enacted which provides for

criminal penalties for failure to report those defects which will

come squarely under the administration of a vigorous U.S. Attorney General which is something you ought to take a hard look at,

if confirmed.

Let me move back to the question of independent counsel, which

I only had a very brief time on, time yielded by Senator Smith, and

I am not sure it can be handled even within a 5-minute time interval. But I raise the issue of having review of what the Attorney

General does. Now, whether it is by statute, like the independent

counsel statute, or whether it is by regulation, as the special prosecutor has been denominated by Department of Justice regulation,

there is, it seems to me, an urgent need for at least Congressional

oversight when the Attorney General makes a ruling which is so

much at variance with the facts and what others have recommended.

On the issue of independent counsel, Charles LaBella recommended it, Bob Conrad recommended it, Bob Litt recommended,

FBI Director Louis Freeh recommended it. We came down in hearings, and there were clear issues of law. For example, on a critical

question as to whether hard or soft money was being raised, there

was a memorandum in the file which referred to hard money as

evidence. And the Attorney General testified that she would not

consider it because the witness didn’t remember. But that missed

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the legal distinction between prior recollection recorded, which is

solid evidence, as opposed to present recollection refreshed. I see

Senator Ashcroft nodding in the affirmative.

Now, there simply has to be some remedy, and there is a lot of

litigation which says that a taxpayer can’t come into court and seek

redress, but where you have the Judiciary Committee—and the Judiciary Committee of both Houses has been singled out as a party

with standing under the old statute where requests could be made

that the Attorney General had to respond to, not for appeals but

had to respond to. And in order to give the minority standing, it

said if there was a majority of the minority on either Committee,

and the same applied to the majority, a majority of the majority.

Not every Senator in either party had to agree to give standing.

And it seems to me that you just don’t have the rule of law if

on something as critical as a conflict of interest—and there is no

division of view as to whether you need some remedy, somebody

outside the Department, if a ranking official, without getting involved in defining who that should be, and you have the special

prosecutor by regulation.

Now, it is true, as you said, there are sensitive matters between

the executive and judicial branches, and then you said, well, executive and legislative branches. Conflicts all around. And there are

constitutional issues. But I would urge you to take a look at it, and

I know that you have a deep regard for Congressional oversight.

Now, you may have a little different view as Attorney General

than as a Senator about the kind of oversight. But I would like

your response as to whether—and I will ask you a leading question. Don’t you think that the Attorney General of the United

States on matters of that importance ought to have a judgment reviewable by someone and initiated by an entity with standing like

the Judiciary Committee and reviewable in court? What about it,

Senator Ashcroft?

Senator ASHCROFT. Well, I, first of all, greatly respect your understanding of this issue. I don’t know of anyone who has devoted

more time and energy to it or thought to it. And you’ve done it

from the perspective of a prosecutor, which I think is the basic role

you would assign to the Justice Department in this setting.

Senator SPECTER. And a Senator.

Senator ASHCROFT. And a Senator. So you’ve understood both

sides in ways that I haven’t. I would be very pleased to confer with

you and to work toward greater accountability in those settings.

I would also say to you that I would hope that I would be able

to work with this Committee. I enjoyed this Committee greatly

when I had the privilege of working with it as a member. And as

the first Attorney General, if I am confirmed, to serve from this

Committee in a long time in that office, I would hope that we

would work together in order to resolve these differences in a context that would also protect the kind of flow of information that has

to exist in the prosecutorial operation.

I offer myself fully to confer with you about that and to find a

way to resolve these issues.

Senator SPECTER. Thank you.

Chairman LEAHY. The Senator from Wisconsin, Senator Feingold.

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Senator FEINGOLD. Thank you, Mr. Chairman.

Senator Ashcroft, I believe Senator Leahy touched on this a few

minutes ago, but I know that you have strongly held views on gays

and homosexuality. You and I have had discussions about this, and

in a 1998 appearance on CBS’ ‘‘Face the Nation,’’ you said, ‘‘I believe the Bible calls it a sin, and that’s what defines sin for me.’’ Now, following on Senator Leahy’s question, one of the great successes of the civil rights struggle of the 1960’s was the enactment

of Federal law prohibiting discrimination in employment on the

basis of race, national origin, religion, or gender, and in 1996, Attorney General Reno implemented a policy at the Justice Department that prohibits discrimination in employment on the basis of

the employee’s sexual orientation, as well as race, gender, religion,

and disability.

If confirmed as Attorney General, would you continue and enforce this policy of non-discrimination based on sexual orientation?

Senator ASHCROFT. As Attorney General, I will not make sexual

orientation a matter to be considered in hiring or firing in that

matter.

Senator FEINGOLD. So you will continue that policy?

Senator ASHCROFT. Yes, I will. I, as State Auditor of Missouri,

did not, as Attorney General of Missouri did not. I did not as Governor of Missouri, nor did I as a member of the Senate. I would

continue the policy, executive order or not.

Senator FEINGOLD. Thank you, Senator. Will you permit DOJ

Pride, a voluntary organization of gay, lesbian, and bisexual DOJ

employees, to continue to use Justice Department facilities on the

same basis as other voluntary employee groups or other minority

Justice Department employees?

Senator ASHCROFT. It would be my intention not to discriminate

against any group that appropriately was constituted in the Department of Justice.

Senator FEINGOLD. Thank you. Attorney General Reno clarified

that sexual orientation should not be a factor for FBI security

clearances. As Attorney General, would you continue and enforce

this policy?

Senator ASHCROFT. I have not had a chance to review the basis

for the FBI standard, and I’m not familiar with it. I would evaluate

it based upon conferring with the officials in the Bureau.

Senator FEINGOLD. I respect that and hope the conclusion will be

consistent with your earlier answers.

Let me switch to a topic that has been already covered in part,

the so-called Southern Partisan article. I want to return to the

question that Senator Biden asked about the interview you gave.

I understand that you told Senator Biden that when you gave that

interview, you didn’t know much about it, that it was a telephone

interview, and you give lots of interviews. And I certainly understand that as somebody who has given a lot of interviews. And Senator Brownback indicated that as well.

The fact that you did an interview with a magazine doesn’t mean

that you subscribe to its views, but if you didn’t know much about

the publication, how could you praise it in such glowing terms in

the interview? How could you say, ‘‘Your magazine always helps set

the record straight’’?

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Senator ASHCROFT. Well, I was told that they were involved in

a group that opposed revisionism. I had recently finished reading

a book published by a fellow named Thomas West from the Claremont Institute about the founders of our country and the revisionist history. The individuals who set up the interview said these

folks are interested in history. It was presented to me as a history

journal, and on that basis I made the remark.

Senator FEINGOLD. Thank you. Let me switch to one other area.

Yesterday, a number of people mentioned an Attorney General

opinion that said there was no basis in Missouri law to allow the

distribution of religious literature in the public schools, and at one

point you said something that struck me, and I want to make sure

I understood it. I believe you said that the Missouri Constitution

was more clear with regard to the principle of separation of church

and state than the Federal Constitution. Do you have any doubt

that the First Amendment of the Constitution—excuse me, of the

Bill of Rights of our Constitution requires a separation between

church and state?

Senator ASHCROFT. No, I don’t. But I would just say that for

things that had been approved by the United States Supreme

Court, like transportation to secular—religious schools and all,

have been approved under the Federal Constitution. That was

more explicitly defined out of the potential in the Missouri Constitution so that the interpretation of the Missouri Constitution

had been for a more durable barrier in this setting. And I think

I expressed that because there are a number of things which have

been ruled acceptable under the law of the United States of America that are not acceptable under the laws and Constitution expressed in—

Senator FEINGOLD. But you don’t consider the First Amendment

vague on the point of the separation of church and—

Senator ASHCROFT. No, I don’t, and I think the courts have construed it. And my point was that as the courts have construed it,

the courts have said things are OK in the Federal setting that

aren’t OK in the Missouri setting. So I had to go beyond the Federal law to go and read the law that I was charged to read in the

setting of the State Constitution.

Senator FEINGOLD. I thank you for that clarification. I think my

time is up. Thank you, Mr. Chairman.

Chairman LEAHY. The Senator from Arizona.

Senator KYL. Thank you, Mr. Chairman. I think I will just be

very brief and make this comment. It is difficult for us in this setting, I think, to really be able to evaluate things which we can’t

possibly anticipate. Some of my colleagues on the panel here have

concerns that Senator Ashcroft as Attorney General would try to

change the law. Senator Kennedy referred to this a moment ago.

And certainly based upon his firm advocacy in the past, it is a reasonable sentiment to hold.

Senator Ashcroft, on the other hand, is in the unfortunate position almost of having to prove a negative, to prove that, no, he

won’t do anything improper. Well, it is hard to prove that you are

not going to do something improper in the future. He has basically

said give me a chance and I will show you.

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It is also true that we are talking to some extent about shades

of gray here. It is not the case that there is something called ‘‘the

law’’ and that is all there is to it and everybody knows exactly what

it is and it is always clear to the Attorney General exactly what

to do as a result of that.

The Attorney General will have to make decisions, and as Senator Ashcroft pointed out, when he was Attorney General there

were some questions at the periphery of the settled law. Well, we

know what Roe v. Wade is, but can you require parental consent,

for example? That is a new question, so it has to be litigated. And

I think that those of us on the side of supporting Senator Ashcroft

have to acknowledge that there will be those kinds of situations,

and that there will be areas for judgment. And I also think that

some of our friends who have some skepticism about what Senator

Ashcroft should do should also then consider the fact that a lot of

these policy issues will be informed by the position of the new

President of the United States. I think we can all make our judgments about how aggressive he will be to move in certain areas,

but I urge my colleagues to at least consider that element of the

policy choices that the Attorney General will make. And I also urge

them to consider the integrity of the nominee and his strong commitment to keep his word.

So I guess what I would caution here is that both people who are

skeptical of Senator Ashcroft and those who are his adherents here

probably both overstate the case a little bit to make the political

point. In many respects, we can’t know, and that then raises the

question: What’s the default position?

And, Senator Ashcroft, to get back to something you said at the

very close of your opening statement, you can’t prove to us that you

will satisfy every one of us. Some of my colleagues are pretty pleasantly surprised, I must confess, that you have been so willing to

agree to enforce laws that you haven’t always agreed with. And so

the real question is: At the end of the day, what will persuade

them that they can trust you?

I would like to have you comment on that very briefly. In my

own case, what you said at the conclusion of your opening remarks

is very persuasive, and that is that you take your oath of office

very, very seriously. And you have also noted a couple times you

are going to be very available to us in the future. And since you

know us and we know you, I suspect you know how well you would

be treated if you went outside the bounds of some of the commitments that you have made.

So I just wonder if you would like to comment on that to try to

add to the assurances that you have already given to members of

this Committee.

Senator ASHCROFT. Well, I thank the Senator. I really believe my

record is a record of operating to enforce the law as Attorney—

Senator THURMOND. Speak in your loud speaker.

Senator ASHCROFT. Thank you, Senator. I believe my record demonstrates my willingness to enforce the law, and that’s why I was

so eager to clarify my position when Senator Kennedy asked me

about the school cases. And there is a difference, though, that I

would cite, and I think it’s important, that the State Attorney General is an elected official who makes final decisions on policy on his

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own. When the Governor of the State calls the State Attorney General on policy issues, the State Attorney General says, you know,

you ran for the wrong office if you want to run this office on policy.

In the Federal system, the Attorney General is—the structure of

the systems designs to make the Attorney General part of the administration, not an administrative or an executive office, part of

the executive, and there’s a delicate balance there. And I think the

responsibility to respond to the executive is one that is important

and it relates to policy, not to law enforcement in the same way.

Senator KYL. Thank you.

Chairman LEAHY. The senior Senator from New York.

Senator SCHUMER. Thank you, Mr. Chairman. And thank you for

your cooperation, Senator Ashcroft. It has been a long day.

First, I would ask you two quick questions, and please try to answer these yes or no. They are not complicated or intended as traps

in any way.

As you know, there is an ongoing Civil Rights Department investigation of Voting Rights Act violations that might have occurred

in Florida. As Attorney General, would you allow that investigation

to continue?

Senator ASHCROFT. I will investigate any alleged voting rights

violations that have credible evidence, and I’m not familiar with

the evidence in the case, but that would be the standard I would

apply and have no reason not to go forward and would not go forward for any reason other than a conclusion that there wasn’t credible evidence to pursue the case.

Senator SCHUMER. OK. The next one, just also quickly, and just

a little elaboration. You had mentioned that on the matter of sexual orientation you never discriminated in your various offices in

terms of hiring. But you were one of a minority of Senators who

refused to sign a statement that you wouldn’t discriminate when

you were a Senator. Can you explain the seeming disparity?

Senator ASHCROFT. I’ve never discriminated. I don’t have any

recollection about this statement, and, frankly, I’d have to answer

I don’t know or invent an answer now, and I don’t have any recollection of that.

Senator SCHUMER. OK. But we could take it, given your previous

statements, that you would fully enforce the Hate Crimes Act.

Senator ASHCROFT. I would fully enforce the Hate Crimes Act

were it to be passed, and— Senator SCHUMER. A few acts—the Statistics Act has been

passed already.

Senator ASHCROFT. Yes, OK.

Senator SCHUMER. I was the author of it.

Senator ASHCROFT. All right. Yes, sir.

Senator SCHUMER. You would. OK. And what would be your attitude toward the Hate Crimes Protection Act next year? Would you

urge that we pass it, not pass it?

Senator ASHCROFT. From what I know about the Act now, I believe it to be constitutional. I would defend it— Senator SCHUMER. How about—

Senator ASHCROFT.—If it were to be enacted by the Congress and

passed by the President. I would have to confer with the President,

obviously, before I endorsed any specific legislation.

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Senator SCHUMER. But you wouldn’t urge him to veto it on any

constitutional or legal or moral basis?

Senator ASHCROFT. Based on what I know now, I would not.

Senator SCHUMER. OK. Now, I’d like to just pursue a little further your follow-up initially to my questions earlier this morning,

and Senator Kennedy had mentioned them, and then you began to

clarify. I think what you were saying—and I am just trying to clarify here—is that on the issue of choice, when you were in the Missouri State Government, you thought it was your right, and certainly not unconstitutional, to challenge and change the law. But

as Attorney General, United States Attorney General, that because

the Supreme Court has ruled, and recently in the Stenberg case

said this is settled law, something you just—that was your words.

Senator ASHCROFT. That’s regarding the denial of cert of that

specific challenge— Senator SCHUMER. Correct. That you would not—and I just want

to get this clear—that you would not urge the Solicitor General in

any way to join suits to try and change those rulings. Is that correct? That is what you said to me earlier this morning, and— Senator ASHCROFT. I stand by my answer from this morning.

Senator SCHUMER. Thank you. Let me ask you this, then: Let us

say people in the Senate or the House try to introduce a statute

that was identical or very similar, nearly identical, for all material

purposes identical, to the statute where the Supreme Court denied

cert in the Nebraska case. Would you urge the President—a little

step further but the same basic reasoning. Would you urge the

President to veto it because it is unconstitutional based on the Supreme Court, the very same ruling in the Nebraska case, in the

Stenberg case?

Senator ASHCROFT. Let me understand what you’re saying. If the

Congress were to seek to do in exact language what the State of

Nebraska did— Senator SCHUMER. Correct.

Senator ASHCROFT.—What would my advice be to the President?

Senator SCHUMER. Correct. It passed both Houses. He has to sign

it or veto it.

Senator ASHCROFT. The President, when he announced his appointment of me, asked me not to share advice with the public that

I would be asked by him. I would tell you this: that I would give

him my best judgment as to what the law. It would not be a resultoriented judgment. I have promised him that I would tell him the

law, and I don’t think it takes—when you have an on-point case,

I think that’s pretty clear what that advice would be.

Senator SCHUMER. And I would just like you to say it because it

is not contradictory to what happened before. This is settled law,

in your judgment, settled law enough so that the Solicitor General

would not—you would not urge him to overturn it. Why wouldn’t

the same—I’m not asking your advice to the President. I understand the difference there and respect it. But we are talking about

the role that you have talked about quite well as implementer of

the law and definer of constitutionality. This is not a moral issue.

This is not an ideological issue. This is a constitutional issue where

it is extremely important for the Attorney General to enforce the

law, something you have repeated regularly today and yesterday.

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Why wouldn’t you just be able to tell us here—this is not a question of your private conversations about statutory or ideological

views with the President. Why couldn’t you say that the law is unconstitutional and the President should veto it?

Senator ASHCROFT. I would give the President my best estimate

of the law. I think it’s very clear that the Supreme Court has ruled

on that particular law. The only change that could be made is if

the Federal Government and its Congress had authority to do

something that the State of Nebraska didn’t do. I don’t have— haven’t considered that fully. But— Senator SCHUMER. But the Supreme Court’s ruling was a Federal

ruling, sir.

Senator ASHCROFT. Yes, it was, but— Senator SCHUMER. It was not based on State of Nebraska law.

It was based on the right of—it was based on the Federal right of

privacy in the Constitution—as the Supreme Court has defined the

Constitution and as you recently told us is settled law. This is an

important issue, and some of us don’t want to be unsettled that you

have said this and are now sort of taking it back a little bit.

Senator ASHCROFT. I’m not taking it back, sir. I will give my best

judgment as to what the law is to the President whenever he asks

me for legal advice, and that will be very clear. And the Nebraska

statute was ruled unconstitutional.

Senator SCHUMER. Correct.

Senator ASHCROFT. And I will tell the President that.

Senator SCHUMER. And that the—excuse me, just—and that the

same law that passed by the House and Senate is unconstitutional

as well? The same exact law using the same Federal ruling, what

would prevent you from saying that if you—and I believe you

have—if you truly believed what you told us before? There is no

difference.

Senator ASHCROFT. Well, nothing prevents me from saying it,

and I believe the Nebraska law has been clearly ruled unconstitutional.

Senator SCHUMER. Correct.

Senator ASHCROFT. And if you’re asking for my personal view, I

don’t know of any reason why the Federal Congress would be allowed to do what the State governments were forbidden to do.

Senator SCHUMER. So you would tell the President it’s unconstitutional?

Senator ASHCROFT. I would tell him that I don’t know of any reason the Federal Government has the authority to do what the State

constitution—State group couldn’t do that was ruled unconstitutional at the State level. And it would—I guess I would have to say

I would expect the same to be the result from the Federal level.

Senator SCHUMER. Thank you for your indulgence of a little extra

time, Mr. Chairman.

Chairman LEAHY. And I will certainly offer the Senator from

Ohio the same amount of extra time. The Senator from Ohio?

Senator DEWINE. Mr. Chairman, thank you very much. Senator

Ashcroft, thank you.

In examining your record as Missouri Attorney General, it is

clear that you had as part of your agenda the whole issue of consumer rights. You attacked pyramid schemes. You sued oil compaVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00221 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.002 SJUD4 PsN: SJUD4
208

nies, charging them with restraint of trade. You had one case

where you sued a company that was selling fraudulent franchises.

They were claiming that they were helping the disabled, and many,

many other cases.

I wonder if, as you define the job of Attorney General and you

look at your role you believe that is also part of your mission, part

of your agenda to protect consumers.

Senator ASHCROFT. I thank the Senator from Ohio. As Attorney

General, I had a portfolio of consumer protection, and I ended up

suing everybody from the oil companies, when they were either

contaminating—selling contaminated gasoline or when they were

price-fixing gasoline, a number of cases like that. I sued the pyramid schemes because they were just a means of defraud individuals, and I had the opportunity to sue people for fraudulent franchises and distributorships and all kinds of things like that.

I don’t know if the portfolio of the Justice Department is quite

as extensive when it comes to consumer protection. I enjoyed that

part of my responsibility in my job. And I also got involved in some

things nationally that I thought were important for consumers. The

one thing that I have dealt with years and years later now here

in the Congress, while I was a Member of the Senate, was copyright laws regarding television and other programs. I sued as an

amicus in the Sony Corporation v. Universal City Studios, which

allowed people to tape-record television programs if they couldn’t

be home at the time the program was on so that they could later

see it.

But I think that I’ll do what I can to try and help consumers in

settings, but I believe the Federal Trade Commission and other

agencies of the Government have the lion’s share of consumer protection, and I’d be happy to learn if I could be involved in that

arena, but my opportunity I doubt would be quite as extensive as

it was when I was Attorney General.

Senator DEWINE. Senator, thank you very much. Mr. Chairman,

thank you.

Senator KENNEDY. [Presiding.] Senator Durbin?

Senator DURBIN. Thank you very much.

Senator Ashcroft, to follow up on Senator Schumer’s question, for

several years now, we have been debating the so-called partialbirth abortion ban on the floor of the U.S. Senate. Many of us have

argued that if it included a health exception for the woman involved, we could support it. And Mr. Santorum from Pennsylvania

has adamantly stuck to his position that it should not include a

health protection.

Now, the Stenberg v. Carhart decision, which has been the subject of this debate, really says that Casey gives us no choice. Casey,

a case which you referred to in your opening statement, made it

clear that you had to include a health exception, and I want to

make it clear in my mind that the Santorum bill, which has been

debated and voted on in the House and the Senate now, based on

what you have said today and what we understand Stenberg v.

Carhart to say, clearly would be unconstitutional and that it does

not meet the test of Stenberg v. Carhart of providing for protection

for the health of the woman.

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Senator ASHCROFT. If legislation regarding partial-birth abortion

is passed by the U.S. Senate, I will ask Department lawyers to assemble the best assessment of that legislation and evaluate its

pluses and minuses and its likelihood of constitutionality. And I

would advise the President of that.

If it is arguably constitutional, I would defend it because I think

that’s the responsibility of an Attorney General. I think it is important to be able to advise the President confidentially because you

might find yourself in the setting where you advise the President

that something is unconstitutional, but he decides to sign it, and

because it is arguably constitutional, but maybe not going to be

constitutional, you go in to defend it.

Now, if you have advised the President publicly that this is probably unconstitutional but it could be constitutional, and then he

signs it and you have to go defend it, you have cut the legs out

from under your ability to effectively sustain the enactment or

argue for its sustenance in the court. So— Senator DEWINE. But, Senator, this element, this element of protecting the health of the woman is clearly the decision made in

Stenberg v. Carhart based on Casey, a case which you yesterday

said in your opening statement was settled law of the land. It is

not a question of constitutionality if it settled law of the land in

your mind. And how then could you have any question, as you sit

there, and say, well, maybe Stenberg really didn’t say the health

of the woman? It was based on Casey, and it related to protecting

the health of the woman, and Santorum, which we have considered

in the Senate for years now, does not include that protection. I

can’t think of a clearer illustration of your earlier statement where

you said the administration is not going to set out to overturn Roe

v. Wade and that you were committed to the settled law of Roe v.

Wade and Casey. Senator ASHCROFT. I am and I would advise the administration

in regard to any proposed—or legislation it was considering that I

considered Casey and Roe v. Wade and Stenberg to be settled law,

and in evaluating those—any proposed enactment or any enactment which came for signature to the President, I would advise

them with that understanding.

It’s possible—the number of permutations in legislation, as we

all know, is infinite, and I would give my best advice to the President. I would give it to him privately, because if he signs something, it would be my responsibility to defend it and seek to defend

it and harmonize it with those cases. I just think that’s one of the

places where you have a situation that tells you why you should

advise confidentially to the President, because some advice about

constitutionality doesn’t—if it were 51–49 constitutional, this may

not be the case. You said I really think this is unconstitutional but

you were wrong about that and you could later defend it, you’d

have a responsibility to do so. So I would like to take that option.

Senator DEWINE. If I might ask you an unrelated question, if you

were confirmed as Attorney General of the United States of America, would you appear at Bob Jones University?

Senator ASHCROFT. My appearances at a variety of places depend

on what I think there is to be achieved and accomplished. When

I get an invitation, I have to ask myself why is this invitation here,

210

what can I support by responding to the invitation, what will be

the consequence of my response.

I will tell you that I understand, having been a participant in

these hearings and the prelude to these hearings, that the Attorney

General is a person who needs to exercise care in—greater care, I

think, than a Senator does. I reject the racial—any racial intolerance or religious intolerance that has been associated with or is associated with that institution or other institutions. And I would exercise care not to send the wrong message, but—and I think that’s

the basis upon which I’d make decisions about going from one place

or to another.

Senator DEWINE. But even in light of President-elect George

Bush’s comments to the late Cardinal O’Connor and the obvious

embarrassment he felt when he learned of the anti-Catholic, and

some racial comments, that were made by the leaders of that university, you would not rule out as Attorney General of the United

States appearing at that same school?

Senator ASHCROFT. Well, let me just say this: I’ll speak at places

where I believe I can unite people and move them in the right direction. My church allows women as ministers. The Catholic

Church doesn’t. My grandmother happened to have been an ordained minister. I’ll go to a Catholic Church and speak. It’s discrimination against a woman from one perspective, but I’m not in

the business of trying to find things in one faith setting that make

it impossible for me to be there. I want to be there to try and promote unity.

There are other different faiths that have different aspects of

their belief. I mean, some churches will forbid me to take Communion. My church invites people to take Communion if they feel like

they want to. But I don’t discriminate against going and doing

things that I—if they invite me to come and do something that’s

helpful and therapeutic and will unite people and not divide them,

I want to reserve the ability to do that. And I’m grateful for the

friends who tolerate me by inviting me. Frankly, I want to focus

my energy and effort to unite rather than divide and to find things

of mutual respect rather than to find things that I can pick at or

otherwise challenge.

But I want to make it very clear that I reject racial and religious

intolerance, and I reject any current or prior policies of those. I do

not endorse them by having made an appearance at any—in any

faith or any congregation. Those who prefer not to allow women in

certain roles, I don’t endorse that when I go there, nor do I endorse

any racial or other intolerance at other places when I make appearances.

Chairman LEAHY. So are you equating Bob Jones with the Catholic Church, Senator?

Senator ASHCROFT. Obviously not. And I thank you for clarifying

that. Throughout this hearing you have helped me clarify things

that were important.

Chairman LEAHY. The Senator from Alabama.

Senator SESSIONS. Well, Mr. Chairman, I think that would have

been better left unsaid. I don’t think that was a fair summation of

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text. If you take anything people say out of context, you can make

people look bad.

Chairman LEAHY. As the Senator addressed that to me, I will respond. I gave Senator Ashcroft the chance so he would not leave

that implication. I think I understood what he meant. I thought

that my question to Senator Ashcroft—and in his response he saw

it the same way—was done as helpful to him.

Senator SESSIONS. Well, if that was the spirit, I will apologize for

my error.

I do notice that Senator Ashcroft said some time ago these positions of Bob Jones University I reject categorically, I reject the

anti-Catholic position of Bob Jones University categorically. Bob

Jones University is a narrow university with many views I do not

agree with, not consistent with my faith, but, frankly, some good

things have been happening. The ban on interracial dating as a result of this hoopla and the visits of political attention has changed.

They also have softened apparently their statements about the

Catholic Church saying they do not hate them but love them.

And so I think maybe these things have been healthy. Maybe it

has been healthy to have that, and to say you will never go somewhere, I am not sure is wise.

On the partial-birth abortion question, I think Senator Durbin

opposed the vote we had, but 64 Senators, as I recall, a bipartisan

group, voted in favor of the partial-birth abortion amendment that

was in the Senate, and two-thirds of the American people favor

that. Eighty-six percent, according to the April 2000 Gallup poll,

oppose abortions in the third trimester, and according to a conversation I had with Senator Boxer, there may be some ways we

can develop some bipartisan progress on that, but I think we need

to realize that the American people are not comfortable with unlimited abortion in this country. I, for one, do not condemn a person

like Senator Ashcroft who is troubled by the ease and blase-ness

we have about this most serious matter.

Senator Ashcroft, you talked about the role of Attorney General.

I served as Alabama’s Attorney General. Is there anybody else but

the Attorney General that represents the State of Missouri but the

Attorney General?

Senator ASHCROFT. In the courts, the Attorney General represents the interests of the States—State.

Senator SESSIONS. You speak for the legal interests of the State.

Senator ASHCROFT. Yeah. Now, there are some agencies that

have their own counsel, but most of the time, say the Board of

Healing Arts, if there is a dispute between whether doctors can

prescribe medicine or—and some other group, you know, the State

frequently—or the position of the Attorney General resolves those

by Attorney General’s opinions, or if someone sues, the position of

the board or the State is defended by the Attorney General.

Senator SESSIONS. Well, I guess I have had personal experience

with the kind of proposed consent decrees that are being talked

about and you have been criticized about here today.

It is only the Attorney General that represents the State, and it

is only the Attorney General that can bind the State in a court of

law on a consent decree. Isn’t that basically correct, or have I overstated that in some fashion?

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Senator ASHCROFT. No, I think in general that correctly states

the law.

Senator SESSIONS. So the point— Senator ASHCROFT. You know, it has been a while since I was Attorney General.

Senator SESSIONS. Well, I had this.

Senator ASHCROFT. That was in 1984, I ceased that role.

Senator SESSIONS. I have been through this problem. I have been

through the problem where plaintiffs sue school board, mental

health system, prison system, and the people who get sued, they

want more money for what they want in their programs. They

want more money. So they go in and say, ‘‘Well, let’s settle, and

we will have the State pay for this, and get a Federal judge to

order us. If we can just get a Federal judge to say that the mental

patient is not being treated well enough, the prisoners are not

being treated well enough, the school system is not being treated

well enough, then we can go tell the legislators who won’t give us

more money that the Federal court ordered it.’’ This is a systemic

problem in America that Attorneys General have to deal with, and

it is difficult to go in and say no.

I have had to do it. My predecessor agreed to a settlement I

could not believe that altered the way Supreme Court justices were

to be elected, and when I was elected, I switched sides and reversed it in the Eleventh Circuit Court of Appeals. Had I not been

elected, the Alabama constitution would have been altered because

the Attorney General, in my view, didn’t defend the State. He did

what was perhaps what the people wanted, but really not that.

Is my time out? I guess it is, Mr. Chairman. I apologize.

So I think there are times when the Attorney General represents

the State, he has an obligation and duty regardless of what the

parties to a litigation may say to ensure that it is fair for all the

people of the State. I think you did that. That is why Jay Nixon

who I knew and served with, a Democrat, Attorney General after

you, did the same thing, and I also would note for the record that

Senator Kennedy and Tom Harkin had fund-raisers for Jay Nixon

while he was taking this very position. Apparently, it is the problem of whether you got a ‘‘D’’ or an ‘‘R’’ after you name whether

that is worthy of criticism.

My time is up.

Chairman LEAHY. Is the Senator from Alabama finished?

Senator SESSIONS. Yes.

Chairman LEAHY. The distinguished senior Senator from California.

Senator FEINSTEIN. Thank you very much, Mr. Chairman.

Senator Ashcroft, let me just qualify Senator Durbin’s question

and ask it another way. You are now confirmed as Attorney General. In 6 months, you receive an invitation from Bob Jones University. You now know about Bob Jones University. Do you accept that

invitation?

Senator ASHCROFT. Well, it depends on what the position of the

university is, what the reason for the invitation is. It depends on

what I might be able to achieve.

They have abandoned the policy on interracial dating, which was

offensive. Their website, which I wasn’t aware of when I went

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there, if it still had the anti-Catholic aspects, I would be loathe to

go back.

I would hope that they would approach things differently, and I

don’t want to rule out that I would ever accept any invitation there

because I think I would hope that they would make what I consider

to be progress. They did when they abandoned the interracial dating ban which they had, and I would hope they would make other

progress as well.

Senator FEINSTEIN. Do you have reason to believe that they are

no longer anti-Catholic?

Senator ASHCROFT. No. I don’t know whether they are abandoning or changing or modifying their position.

I would state this. I think it is clear, and these hearings have

been valuable in this respect, that I am sensitive at a higher level

now than I was before that if the Attorney General in particular

needs to be careful about what he or she does and I would be sensitive to accepting invitations, so as to not allow a presumption to

be made that I was endorsing things that would divide people instead of unite them.

Senator FEINSTEIN. Along those lines, let me ask you another

question. You were on the Foreign Relations Committee, and Jim

Hormel, a person whom I happened to know very well—he comes

from my city and I have known him for many, many years—was

up for Ambassador to Luxembourg. You voted against him at the

time saying because he engaged in a gay lifestyle.

My question to you is would someone be denied employment by

you or not be selected by you for a top position in the Justice Department if they happen to employ a gay lifestyle.

Senator ASHCROFT. No. They would not be denied. I have never

used sexual orientation as a matter of qualification or disqualification in my offices. I have had individuals whose situation became

apparent to me, sometimes tragically, that worked for me, and I

have not made that a criterion for employment or unemployment

in my office and would not do so.

I will hire as if that is not an issue, and it is not, and whether

or not the executive order would be in effect or not, that is my

practice and has been in all the offices in which I have conducted

myself since I have got into politics, and that began in January

1973.

Senator FEINSTEIN. Thank you.

If I might ask you a question about the Hyde amendment, now

law. The amendment requires States to fund abortions for women

who rely on Medicaid and who choose that option if the pregnancy

is a result of rape or incest or if it threatens the woman’s life. The

amendment attempts to ensure that poor women with the consequences of rape or incest have the service and are not disadvantaged because of their economic status.

It is my understanding that at least two States are not in compliance with the Hyde amendment. What action as Attorney General

would you take?

Senator ASHCROFT. First of all, I voted for the Hyde amendment

on several occasions. I don’t really know what enforcement actions

there are, whether they are taken through the Attorney General’s

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office or whether they are taken through some other agency of the

Government, but I would seek to enforce the law.

I am just not sure what the enforcement action is that is appropriate in that setting. I don’t know whether HHS has a way of

dealing with that or not.

Senator FEINSTEIN. I wanted for a moment to talk about another

past position, and this has to do with felons obtaining weapons.

The National Rifle Association has consistently supported enabling

felons to restore their privilege to purchase firearms both through

taxpayer funding, for a ‘‘relief from disability’’ program, and lawsuits.

Many in law enforcement have serious concerns about enabling

convicted felons to possess guns. In 1999, you voted for an amendment to the juvenile justice bill that would have required the FBI

to create a data base to identify felons who have been granted relief. Rather than establishing a national data base, my question is

why don’t we just prevent felons from getting guns in the first

place.

As Attorney General, would you support felons obtaining this socalled ‘‘relief from disability’’ so they could buy guns despite their

felony convictions?

Senator ASHCROFT. Thank you, Senator.

The restoration of gun rights is not a Justice Department function under the law now. It is a Treasury Department function, and

I know Senator Durbin, I think, was instrumental in—maybe I am

wrong about that. I thought you made sure that wasn’t funded.

Pardon me. But—pardon me for—it is getting late, and I’m—things

are—

Senator FEINSTEIN. No, I understand. My question is a very simple one.

Senator ASHCROFT. Yes, I understand that, and let me address

that.

This is a matter of policy about which I would confer with members of the Justice Department and also with the President of the

United States in arriving at a decision.

Senator FEINSTEIN. My point is I think all of law enforcement believes that felons should not possess weapons, and my question to

you, as Attorney General, do you agree with that, would you be

supportive.

Senator ASHCROFT. Keeping guns out of the hands of felons is a

top priority of mine, and it would be as Attorney General.

Senator FEINSTEIN. So the answer is yes, you would be supportive?

Senator ASHCROFT. Yes. I think that’s—yes, it is.

Senator FEINSTEIN. Let me ask another gun question, if I may.

Chairman LEAHY. The Senator’s time—

Senator FEINSTEIN. Oh, it is? I apologize. Thank you very much,

Mr. Chairman.

Chairman LEAHY. The Senator from Kansas.

Senator BROWNBACK. Thank you, Mr. Chairman.

I think every question has been asked three or four or maybe five

different ways so far. So the only thing I would like to add at this

point is I would like to submit to the record a letter received by

the Judiciary Committee from Charles Evers. He is the brother of

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slain civil rights leader Medgar Evers, and this letter is in favor

of the nominee, of John Ashcroft for Attorney General, and strongly

supports that. So I want to submit that into the record.

Chairman LEAHY. Without objection.

Senator BROWNBACK. I think that pretty well wraps up the topics.

Thank you, Mr. Chairman. I would like to yield some time to my

colleague, Senator Kyl.

Senator KYL. No. No, I don’t.

Mr. Chairman, might I just ask unanimous consent to insert in

the record at this point an op-ed piece in the Arizona Republic by

the columnist, Robert Robb, on this subject.

Chairman LEAHY. Yes.

In fact, following the normal practice, the practice under both

Senator Hatch and myself, the record will be available for Senators

as long as the hearing is going on to submit statements of that nature. We have a number of them, and several Senators do.

The Senator from Kansas, is that it?

Senator BROWNBACK. That is sufficient for me.

Chairman LEAHY. I would also submit questions, as we have in

the past, of other Senators not on the Committee to have been able

to submit questions on behalf of the two Senators from Florida,

Senator Bob Graham and Senator Bill Nelson, regarding the investigations into allegations of discrimination, November 7th, 2000,

election in Florida, including the use of voting devices that resulted

in significantly higher numbers of minority voters, ballots being

thrown out. This refers to the Civil Rights Division and the Commission of Civil Rights investigation. I would submit that, and we

will give copies to your staff and the questions for the record.

Senator FEINSTEIN. Mr. Chairman, may I submit some amendments—or some questions to be answered in writing?

Chairman LEAHY. Yes. The Senator from California may, of

course.

If nobody else has any submissions, the Senator from

Washington— Senator KENNEDY. Mr. Chairman, I was wondering, Senator

Biden had yielded the time. If everybody is ready, I don’t want to— others have questions, but there is one. I am wondering if I could

use his time. I will only take 1 minute.

Chairman LEAHY. Do you want to use it now, or do you want

to—

Senator CANTWELL. I yield to the Senator. I yield.

Senator KENNEDY. I’ll do whatever. Oh, I’m sorry. Excuse me. I

apologize.

Chairman LEAHY. Why don’t we have the Senator from Washington State—

Senator KENNEDY. I apologize.

Chairman LEAHY.—And then the Senator from Massachusetts.

Then, just so that people understand, once the Senator from

Washington State has finished, the Senator from Massachusetts is

using the time of the Senator from Delaware. I discussed this with

the Senator from Utah. We will recess for an hour to have dinner

and then return.

Senator Cantwell?

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Senator CANTWELL. Thank you, Mr. Chairman.

Senator Ashcroft, thank you for your patients and fortitude.

Senator HATCH. Excuse me. Could I ask one question? Are we

coming back to re-question Senator Ashcroft, or will that be it for

him?

Chairman LEAHY. Well, I have got a couple of questions. I mean,

I would be happy—

Senator HATCH. Well, why don’t we finish the questions.

Chairman LEAHY. Well, I will tell you what we will do, we will

stay until 6:30. We will stay until 6:30 and break at that time, and

then at what seems like a logical time, come back to 7:30. I give

you my commitment, to the Senator from Utah, to go late at night

if need be to help get this done. We can start the clock on the Senator from Washington State.

Senator CANTWELL. Thank you.

Again, Senator Ashcroft, thank you for your patience and your

fortitude. Yes, the hour is getting late, so I appreciate your attention to these issues.

If we could go back to the roadless area, the question that I

brought up earlier, and I can go back to the record of your statement. Since I don’t have that in front of me, I am not clear whether

you said you were unfamiliar with it or unfamiliar with where it

was in the Administrative Procedures Act and the rulemaking authority.

Senator ASHCROFT. Maybe I need to be refreshed, and I am very

sorry, but I don’t understand what you are talking about.

Senator CANTWELL. OK. The roadless area policy—

Senator ASHCROFT. Oh, roadless area. OK.

Senator CANTWELL. Roadless area policy that has now been implemented by the Administrative Procedures Act, and just completed that process, and I asked you earlier about that and I was

unclear exactly—you said you weren’t familiar. I wasn’t clear

whether you were—and I can go back to the record where you say

you were unclear about the policy or—

Senator ASHCROFT. It is my responsibility to defend both the

laws and the rules and regulations, and it is my understanding

that it would be my responsibility to defend these regulations upon

it if and when they are attacked.

Senator CANTWELL. OK.

Senator ASHCROFT. But I am not familiar with them.

Senator CANTWELL. Well, you have sent—from—according to

Mining Voice, you have sent a letter basically raising concern about

the roadless area policy and the Clinton administration’s, as you

called it—it appears the administration has launched an orchestrated campaign to preclude mining on vast acreages of public

lands and multiple-use land. I understand you don’t always remember everything you have—

Senator ASHCROFT. Well, I think that this maybe makes reference to what would be the situation in the Mark Twain National

Forest in Missouri, the old lead and zinc mines, but I shouldn’t

speculate. Frankly, it is getting late in the day—

Senator CANTWELL. Yes.

Senator ASHCROFT.—And I don’t want to do that, Senator.

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Senator CANTWELL. Here is why I think it is such an important

issue, because you may have, again, legislative—which we said numerous times today, what you have done as a Senator is different

as you might do as Attorney General, but, yet, it seems as if you

raised concerns about or opposition to that policy. Now it has actually been, as far as the Administrative Procedures Act, completed.

It is now law.

It may be that the President-elect opposes that policy, but you

as Attorney General—and there are court cases already now being

filed and challenged to that administrative—to the roadless area

policy that has now been implemented by this Administrative Procedures Act.

So, even if the President-elect is opposed to that policy, will you

as the enforcement agency underneath your office enforce and uphold that law and defend those cases?

Senator ASHCROFT. I will, regardless of whether or not I supported something as a Senator, defend the rule, and if it is a rule

with the force and effect of law, I will defend those cases.

Senator CANTWELL. Even if the President might be seeking a

new administrative overturn of that?

Senator ASHCROFT. I think if the President wants to change the

law, he has to follow the law in order to do so.

Senator CANTWELL. OK.

Senator ASHCROFT. And I will support and enforce the law. I

think that’s—that’s a responsibility, and I think that is what I

have promised to do.

I can’t be result-oriented. I have to be law-oriented, and I think

I would disserve the President and the country were I to do otherwise.

Senator CANTWELL. Thank you very much. Thank you.

Chairman LEAHY. Thank you.

Senator Kennedy who has reserved the time of Senator Biden.

Senator KENNEDY. I will tell my good friend, Senator Sessions,

that if Jay Nixon was nominated, I would be asking him the same

questions.

Senator, this is just on the tobacco. I would like to ask you just

two quick questions, one on the issue of guns. There are three

cases now. I will ask you the questions, and perhaps you can respond to them in writing, unless you want to give an answer. There

are three occasions now where the gun law, that is, the Brady bill,

is under a review, case pending on the Fifth Circuit of Appeals

where the defendant is challenging conviction of weapons under the

Brady bill. There is a case pending in the D.C. Circuit on the ban

of assault weapons with the high-capacity ammunitions, and there

is a case pending in the Sixth Circuit of Appeal which the gun

lobby is, again, challenging the assaults ban.

If you can give us your reaction to those. I did not tell you before

that I was going to raise those. There is no reason that you ought

to know about them, but if you could, please.

Senator ASHCROFT. I believe these are all enactments of the Congress signed by the President, laws of the United States that are

under attack.

Senator KENNEDY. Good, OK.

Senator ASHCROFT. I would expect to defend those vigorously.

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Senator KENNEDY. Good. Thank you.

Finally, just in your May speech—this is on tobacco. In your May

speech, you ridiculed the administration’s effort to reduce the youth

smoking, criticizing the ethic of victimology that treats tobacco as

a drug and drugs as tobacco. In that statement, you appear to reject the overwhelming weight of scientific opinion that nicotine in

tobacco is a highly addictive drug and reject the massive evidence

that children have been the victims of a deliberate effort by the tobacco companies to addict them to smoking at a young age.

Now, the administration has a legal action on that particular

question moving forward. It has gotten to the point where a Federal judge has already examined the Government, in this case, the

RICO claim and rule, that it can go forward as a matter of law.

We are all aware of the mountain of evidence showing that the tobacco industry did engage in unlawful acts. This is basically a recommendation of DOJ professionals.

Can you give us any assurance about that case if you intend at

this time to withdraw it? Do you intend to carry it forward? Can

you give us any indication of what your disposition on that will be?

Senator ASHCROFT. Well, let me clarify that I am no friend of the

tobacco industry. I don’t smoke. My family doesn’t smoke. I regret

the fact that smoking is very dangerous to individuals.

I will—I have no predisposition to dismiss that suit. I would

evaluate that suit, conferring with members of the Department of

Justice. I note—and hoping to learn from it—that the Attorney

General, 2 years ago, said that the Federal Government had no

independent cause of action against tobacco companies in a statement which I think she later reversed, and I don’t want to make

a statement ignorant of the kinds of facts and considerations that

ought to inform my judgment when I get to the Justice Department

if I have the benefit of confirmation.

I don’t mean to be presumptive in my statements, but I will consider it, and is this the case where there were three causes of action and two of them have been dismissed, but the RICO cause remains? That is about all I think I know in terms of that.

Senator KENNEDY. That is correct, and they have said that the

defendants cannot possibly claim their alleged conspiracy was isolated. The complaint described that. Well, they have upheld this.

There are three different criteria for RICO, and they have gone

through.

Senator ASHCROFT. Well, suffice it to say—

Senator KENNEDY. And I won’t take the time of the Committee

to go through the justifications, but they have met that particular

requirement. The case is moving ahead.

You have taken a very strong position on the questions of substance abuse. I doubt if there are many medical professionals who

don’t believe that tobacco is a gateway drug, and I think that there

is such an extraordinary concern, from parents as well as professionals, in terms of trying to make a difference with youth smoking

and the targeting of companies toward youth smoking. I certainly

hope that would get some action. I appreciate your attention to it

now, and we look forward to talking about it some more.

Thank you. Thank you, Mr. Chairman.

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Senator HATCH. I think our side is about wrapped up, at least

I hope so, and I hope yours is, too.

Chairman LEAHY. Let me do this. I do have a couple of questions

I will ask him, and then we will break unless somebody on your

side wants to do one. The Senator from Pennsylvania wishes to ask

questions.

I will ask a couple. We will go to the Senator from Pennsylvania

so that he can ask some. We will then break. I am concerned about

the amount of time the former Senator from Missouri has had to

spend here, but with all due respect, I am even more concerned

about Mrs. Ashcroft who has had to look at all of us, but then we

have had to look at you. So we will do my questions. We will then

turn to the Senator from Pennsylvania. We will break, and during

that time, I would ask the Senator from Utah if he would check

on his side which, if any, Senators will still have questions. I will

do the same on our side.

Bob Jones University is not up for confirmation here, but just as

you have spoken of a heightened awareness about some of these

issues because of the confirmation hearing, you will not be surprised to know that many nominees in both Democratic and Republican administrations have said that they became more aware of

some of the issues following their confirmation hearing.

But just so you understand the concern, when President-elect

Bush spoke at Bob Jones University about a year ago, he did express regret for the appearance in recognition of their anti-Catholic

and racially divisive views. When your Republican colleagues received an honorary degree from Bob Jones University, Representative Asa Hutchinson later called the school’s policies indefensible.

In March, Bob Jones made clear on national TV that he views

the Pope as the antichrist and both Catholicism and Mormons as

cults.

My suggestion—and you can do whatever you want—I made my

position very clear yesterday how I feel about you—on any questions of racial or religious bias. I stated at that time that neither

I nor anybody on this Committee would make that complaint about

you.

But let me say this, if you are being somewhat sensitized to this,

frankly, if I were you, with all the information that has come out—

some of which you may have known because there was a dispute

with one of your own judicial nominees over the question about

whether Bob Jones should have a tax exemption or not—with all

that, if I can make a recommendation to you, I would put that honorary degree in an envelope and send it back to them, and say this

is your strongest statement of what you feel about their policies.

But let me ask you this. I gave your staff a speech that you made

in 1997 called ‘‘On Judicial Despotism.’’ You characterized the Supreme Court’s landmark abortion decision in Roe v. Wade and

Casey as illegitimate. You called the justices who struck down in

Arkansas a Congressional term limit law, you called them ‘‘five ruffians in robes’’, and said that, quote, ‘‘They stole the right of self

determination from the people.’’ And you posed a rhetorical question, quote, ‘‘Have people’s lives and fortunes been relinquished to

renegade judges, a robed contemptuous intellectual elite fulfilling

Patrick Henry’s prophecy that have turned the courts into nursVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00233 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.002 SJUD4 PsN: SJUD4
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eries of vice and the bane of liberty?’’ And you also said, ‘‘We

should enlist the American people in an effort to reign in an outof-control court.’’

Now, I have disagreed with Supreme Court decisions, and I have

always emphatically stated that while I may disagree, we have to

follow them. I disagreed with Gore v. Bush, but I went over with

the then-Chairman of the Senate Judiciary Committee, my Republican counterpart, went to the arguments, came back out and said,

‘‘We have to obey the law, whether we agree with it or not.’’

Now, the ‘‘five ruffians in robes’’ to whom you refer are members

of the Rehnquist Supreme Court. That’s a conservative Court, oftentimes activist, decidedly conservative. I have heard Justice Anthony Kennedy and Ruth Bader Ginsburg called a number of

things, but ‘‘ruffians’’ is a little bit stronger than I have ever heard

before.

How do you feel about that speech today?

Senator ASHCROFT. Well, first I’d say that I have never said that

people shouldn’t obey their outcomes, and inasmuch as I may be

spending substantial time presenting things to the Court, I think

I’ll be respectful to the Court.

Chairman LEAHY. And would it be safe to say—I do not want to

put words in your mouth—how do you feel about your term ‘‘ruffians in robes? ’’ Probably one best headed for the trash can?

Senator ASHCROFT. I don’t think it will appear in any briefs.

[Laughter.]

Chairman LEAHY. Well, probably not on your side. You may find

it quoted on the other side about you, but I think I understand

your answer. The Senator from Pennsylvania?

Senator SPECTER. Thank you, Mr. Chairman.

Senator Ashcroft, we are trying to wrap up. It is late. I want to

touch on a couple of areas and urge you to give consideration to

them.

On campaign finance there is a memorandum of understanding

between the Department of Justice and the Federal Election Commission which I had questioned the Attorney General about extensively, because there are criminal penalties, and under our law,

they are to be enforced by the Department of Justice, and I would

urge you to take a look at that memorandum of understanding

with a view to reasserting Department of Justice authority to enforce the statutes of the United States which have penal provisions.

On the issue of espionage, I would urge you to take a very close

look at the procedures which are used under the Foreign Intelligence Surveillance Act, to make sure that major matters do not

fall between the cracks on the investigations which are of the utmost critical nature. Some of those matters have gone directly to

the Attorney General, and have been delegated without supervision, and major investigations have been thwarted.

With respect to international terrorism, there have been tremendous advances made by the Federal Bureau of Investigation in

overseas activities, leading to some really remarkable prosecutions

on extraterritorial jurisdiction, something we did not have before

1984 and 1986 statutes were enacted, and I would urge you to take

a close look there and to pursue that.

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On the antitrust laws, I approach that very briefly, and I would

urge you to take a look at areas where there can be an aggressive

pursuit, and with some specificity, I would your attention to OPEC.

Just in this morning’s news, they are going to curtail production

in order to raise prices. And there is a very solid legal theory for

proceeding against OPEC under our antitrust laws, Sherman and

Clayton. And an impediment had been the Foreign Sovereign Immunities Act, which prohibits law enforcement from going after

acts of state, but there is an exception if there is a commercial

practice and there is an acceptable international standard available, which there is now, with an emerging international consensus, that price fixing is unlawful. And what OPEC is doing, pure

and simple, is an old-fashioned violation of the cartels, in restraint

of trade, keep up the prices. And Americans are being victimized

there, and they really do not have sovereign immunity because of

a new brand of international standard. The advances in international law are remarkable in many, many fields with the War

Crimes Tribunal and a consensus on international law.

And I mention those to you just in passing for your attention, because it has been a long day, and it would be my hope that we

would move on to other witnesses following today’s termination.

Let me ask you as a final question, Senator Ashcroft. There have

been a lot of concerns expressed—and you have heard them all, you

heard them all and then some—about many, many touchy subjects,

and President-elect Bush has articulated a really desirable view of

being a healer. And we talk about bipartisanship and about bringing America together, and that is going to be a very, very important item. And I believe that the assurances you have given on

many items are really important, and if confirmed, people are going

to be looking at you to see that you are going to carry them out.

And I would urge you to establish a dialog with the groups which

have been identified as being opposed to you, whatever the line

may be, the desegregation cases, the abortion clinics, the pro-choice

issue, all of these items, and show them the man that I know from

working with you for 6 years in the Senate, with a sense of humor,

and balance, and realism, and integrity, and very strong-held

views, but a very sharp delineation between your personal philosophy and law enforcement, which we have tried to articulate and

pin down, and I think you have made a lot of very important commitments.

So I would ask you in a final question, what do you see that you

can do in an active way to carry forward the healing that President-elect Bush talks about, and give assurances on an ongoing

basis to so many people who have raised these tough questions?

Senator ASHCROFT. While I see the time is up, let me just briefly

say that—

Chairman LEAHY. I think the Senator from Pennsylvania has

asked a very good question, so certainly take the time to answer.

Senator SPECTER. Senator Ashcroft, on time, I do not think there

is any time limit on you. There are time limits on us, not on you.

We have seen a lot of practices around here, on 10 minutes, a long

speech, and a question at the end of the 10 minutes. It is a common practice for senators to take all the time, but you have the

time you need.

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Senator ASHCROFT. Let me just say thank you for the question.

I’m delighted to respond to the question.

I am very eager to be the Attorney General for the people of the

United States of America. I’m eager to talk to them. I’m eager for

the Justice Department to have an elevated understanding by the

public, and standing with the public. I personally feel that the Justice Department has, of necessity, been sort of inward focused in

a lot of ways recently because of circumstances that have surrounded the executive branch of government, but I think we can

invite people to participate in fashioning and shaping and understanding a Justice Department that will be seen as a Justice Department for all the people.

I have toyed with a variety of ideas, not presuming my confirmation, but it’s hard if someone invites you to think about being the

next Attorney General, not to think about what you could do. And

I’ve thought about a variety of ways to be involved with the people,

with being in various cities and asking people to come and tell me

what they expect from the Justice Department, being on college

campuses and asking people, young people to chat about the justice

objectives for the United States of America. Some of you I’ve

shared these dreams with, and I’ve even suggested that it would

be appropriate for, in these sort of things outside the strict legal

responsibility we have to participate together in, because I think

the future of America is very bright, and I would hope that we

could find a way to fashion that brightness as a team effort.

So that I look forward to reaching out to people. I don’t know

that I will be as interest-group oriented. I want to reach out to people, not just interest groups. But I will not reject the opportunity

for individuals who are associated with groups to be involved as

well, because I think it’s time for the Justice Department to be

seen as an instrument of American justice for all the people, not

necessarily just a defense of the administration or defense of the

executive branch of government. And it shouldn’t be something

that’s merely Washington based. I think it should be something

that’s understood across America.

I would plan to visit—I hope to visit, early in my opportunity, if

I am confirmed—personally every jurisdiction, to meet with the US

Attorneys there. I want them to be inspired about what the Justice

Department does. I want them to be proud of it. I want them to

have a sense that there is integrity about what we do, that we’ll

operate based on principle, the kind of principle that—more eloquently than I could state—Jack Danforth, your former colleague,

spoke to you about. It was the kind of thing he established in the

Attorney General’s office in Missouri, and frankly, I followed assiduously that example when I was there.

People who—a culture that doesn’t have a reference to the rule

of law doesn’t have freedom, and I believe freedom is the circumstance in which people flourish and individuals grow. My philosophy of government is government exists so that people grow,

people reach the maximum of their potential. That’s what government is about, and I’d like for the Justice Department to be a part

of that. So I intend to engage in a conversation with the American

people as aggressively as I can, to help them understand the Justice Department, and to help them inform me about what they exVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00236 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.002 SJUD4 PsN: SJUD4
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pect from the Justice Department. And then I would take those

conversations to the President of the United States with a view toward being responsive to the people of America to give them the

kind of Justice Department in which they can have confidence, and

on which they could rely for integrity and justice.

And it’s an exciting, very exciting thing to me. If I am honored

with the confirmation of the U.S. Senate, I will make it my highintensity effort, and I believe the outcome will be very, very satisfactory and pleasing, and I thank you for the question.

Chairman LEAHY. Thank you. The Committee will stand recessed

until 7:30. During the break, Senator Hatch will check with members on his side, I with members on my side, to see if there are

further questions of the nominee, or whether there are simply

questions that can be submitted. You have had a long day here,

and I would hope that you and your staff, but especially Mrs.

Ashcroft, could take some time to relax.

[Recess from 6:38 p.m. to 7:44 p.m.]

Chairman LEAHY. Let me tell you where we are. During the

break, as I had suggested we would do, Senator Hatch and I conferred. We have checked with the senators on both sides of the

aisle. We do not have—assuming nothing unforeseen in later questions of other witnesses—we do not have other oral questions of the

nominee.

What we will do, because there is still some of his paperwork

that has not yet come to the Committee, and senators have to have

a chance to see that, but also, once they have had a chance to

check the transcript of yesterday and today’s hearing, and once also

that Senator Ashcroft has had a chance to see if he wants to make

any changes in any of his answers, we have the right, both sides

do, to submit further written questions to the nominee. That, of

course, is a practice we have always followed with any nominee,

and those answers would have to come back prior to any vote. But

I do not intend to recall Senator Ashcroft tonight under these circumstances. We will hear from a Congressional panel this evening,

and have questions.

Senator Hatch?

Senator HATCH. Well, I am really happy to have this basically

over for Senator Ashcroft. I think he more than answered the questions, and I think that he did a very good job.

Now, it is my understanding, Mr. Chairman, that we will proceed

with whoever is here tonight congressionally.

Chairman LEAHY. That is right.

Senator HATCH. But I have to take the blame, because I thought

we would be going late tonight on Senator Ashcroft, which we have

done, and I basically indicated to our witnesses J.C. Watts and

Congressman Hulshof, that I did not think they would need to be

here, so they are not.

Now, I have also requested, and I respectfully request again, that

since Congressman Hulshof is the prosecutor in the Johnson case,

that the prior practice of the Committee, at least during my tenure,

where you have a witness in the case of Ronnie White, we allow

Congressman Hulshof, who was the prosecutor, who wants to testify with regard to the law in that area, that we allowed them to

appear together, which would be the fair thing to do. I do not think

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there will be any bombastedness or anything. I just think it would

be good to allow the two witnesses together and especially since

Congressman Hulshof has requested in writing, respectfully, the

privilege of doing so, if we could do that, I would feel very good

about this. However, if we are just going to have one witness, and

then throw Hulshof, who is relevant to that witness, then Ronnie

White is relevant to Hulshof.

Senator SPECTER. Mr. Chairman?

Chairman LEAHY. Yes?

Senator SPECTER. I would like to second what Senator Hatch has

to say. It is frequently done, really customary, where there are two

witnesses who have testimony on the same subject matter, to have

them appear together. I anticipate that there may well be a difference of contention as to what the facts are, and in my tenure

here, which is not as extensive as Senator Thurmond’s, but a while,

and where I have presided at hearings, I make it a practice to

bring the people in who have the same things to say, and there are

frequently clashes where—for example, we had key officials of the

Department of Justice and key officials of the FBI, who flatly disagreed with each other. They did not quite call each other liars, but

there was a kind of a conflict where you could follow up on questions on factual matters that you do not have if you have Justice

White, and then you have Congressman Hulshof, unless you are

going to recall Justice White, and we are not going to do that. So,

it seems to me preeminent and fair, and also, there is no doubt

that what Justice White has to say is very germane. He is a major

witness. And as a matter of fairness, there ought to be an opportunity for the other side to be heard simultaneously, so I would

press to have what Senator Hatch has requested be the rule.

Senator HATCH. If I could just add one last thing. I think, Mr.

Chairman, you have conducted very fair hearings here. This is no

reflection on you whatsoever, except that we believe that the only

fair way to do this is to allow the two relevant issues, on those relevant issues to be able to be on the same panel. If we do it that

way, it seems to me, we get rid of the problem. People can ask their

questions both ways if they would like to, or not ask any questions,

and it is just the fair thing to do. If we do not do it, I would think

it would be pretty unfair.

Senator DURBIN. Mr. Chairman?

Chairman LEAHY. Yes.

Senator DURBIN. Mr. Chairman, I would object to that, and I

want to state my reasons for it. The difference is this: Ronnie

White was rejected in his effort to be appointed to Federal District

Court, without an opportunity to ever explain his point of view. He

did not receive the same fair hearing that Senator Ashcroft has received during the last 2 days, or that virtually every other judicial

nominee receives, and I would say this. I think he is entitled to

present his opinion and his decision in the context of how he saw

it and how it was interpreted. You can bring in your witnesses

against him, other witnesses against him, whatever you want to do,

but I think he is entitled, since he is the first Federal District

Court Judge rejected on the floor of the U.S. Senate in 40 years,

he is entitled to have his day before this Committee to state his

position, and we should make that a record. You can put whatever

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rebuttal witnesses you want on at that point, Congressman

Hulshof or others, but give this man his opportunity to sit before

this Committee and defend himself after what he has been

through.

Senator SPECTER. Mr. Chairman, may I respond? And I have

great respect for Justice White, but the issue is not what happened

to Justice White. The issue is what—his bearing on Senator

Ashcroft, and we need to have a procedure which would enable this

Committee to find the facts fully.

Now, I think they ought to be together, but perhaps some middle

ground would be that if Justice White testifies, and then Congressman Hulshof testifies, and Justice White remains, so that we are

able to follow up with Justice White on what Congressman Hulshof

has said. That is the only way we can have any conflict, which I

anticipate will be present, and to let us find the facts. And the

issue is not what happened to Justice White. The issue is what is

going to happen to Senator Ashcroft.

Chairman LEAHY. If I might, just so people understand, Congressman Hulshof was invited to appear with a panel tonight. He

will have an opportunity to appear. I have not met Congressman

Hulshof, but he was kind enough to send me a detailed letter explaining to me how to do my job, and what the Senate should do

in carrying out its responsibility. That is very helpful to the Senate, and I appreciate his giving us the benefit of his experience and

wisdom from the other body, as I always am. Perhaps I am a slow

learner and I have not understood fully what I should do to follow

his directions.

But in any event, what I will do as Chairman, I will hear from

a congressional panel, those members who are here today. Congressman Hulshof and other members who are unable to be here

tonight will also have an opportunity to be heard. I mean, I will

try certainly to get them onto a panel during the time when I am

Chairman. If I cannot, I am sure that Senator Hatch, during the

time he is Chairman, will be able to get them on to a panel. The

irony is, in a question of fairness, Congressman Hulshof will get

the last word because he will be testifying after Justice White testifies. Now, it may well turn out, and a suggestion was made of having Justice White testify again, maybe for a different reason than

what the Senator from Pennsylvania suggested. It may be because

he feels he should talk. But the point is, we are not talking about

the confirmation of Justice White. We are talking about the confirmation process of Attorney General Nominee John Ashcroft.

Now, he would be able to testify by himself, although we have

broken into his testimony several times at the request of Senator

Hatch, on behalf of himself and the Bush transition team, to have

a long series of senators come in and speak on his behalf. We did

that again today. It has been somewhat unprecedented. We have

had a Senator from Texas, a Senator from Maine, a former Senator

from Missouri. I, in turn though, out of courtesy to the nominee,

did not bring, while he was here, did not bring another former Senator from Missouri who is opposed to his nomination I did not

bring other Members of Congress who are opposed to his nomination to come in during that time. He was allowed to interrupt any

226

time Senator Hatch told me he wanted to, to bring in people to

speak on his behalf, sit with him at the witness table and do it.

But just so that we are not here all night long talking about

what is going to happen, we will go ahead. I will include in the

record the kind letter from Congressman Hulshof, explaining how

I should do my job I appreciate suggestion of course—I am always

open to suggestions, and trust me, I get a lot of them, 17,000 emails in 1 day this week. And we will go ahead with our—

Senator SPECTER. Mr. Chairman, did you say you are putting the

letter in the record?

Chairman LEAHY. Yes.

Senator SPECTER. OK. Because I think that is important, because

this letter does not do what you said. This letter does not tell you

how to do your job, and I think it is a disservice to Congressman

Hulshof for you to make that statement. It simply does not do that.

I want to read the letter.

Chairman LEAHY. Well, the letter was given to the press. I heard

about it after he gave it to the press.

Senator SPECTER. I think I have the floor, Mr. Chairman, and I

would like to read the letter, because Congressman Hulshof is entitled to not be characterized as doing something as taking on the

business of the Senate. This is what he says: ‘‘Dear Senator Leahy,

As a matter of personal privilege, I respectfully request that I be

allowed to testify on the same witness panel as Judge Ronnie

White during your confirmation hearings on the nomination of Senator John Ashcroft to be United States Attorney General. My appearance before the Judiciary Committee does not come because I

am a sitting member of the U.S. House. My appearance is solely

because I was co-counsel in the prosecution of a murder case which

became a critical issue during the consideration of Judge White’s

nomination to the Federal bench. I believe I can provide significant

and unique testimony relevant to the State of Missouri v. James

Johnson and Judge White’s expected testimony. Your current invitation to have me testify as part of a panel consisting of interested

Members of Congress will not provide the Judiciary Committee

with a full, fair and accurate account of the James Johnson case.

I respectfully request that my appearance occur on the same panel

as Judge White. Any other invitation would reflect a politicization

of the hearing process and would be unfair to the Senate, the incoming administration, and the American people. Sincerely, Kenny

Hulshof.’’

Now, I believe that is very respectful, but if we are to have a

process where these witnesses are not going to testify together and

it comes down to the raw power of the Chairman, then my suggestion would be to the incoming Chairman, that we reconvene the

hearing on the afternoon of January 20th or Monday, January the

22nd, and call the two witnesses.

Chairman LEAHY. Well, the incoming Chairman, of course, would

have that opportunity.

Senator HATCH. I do not intend to do that, but let me just bring

this to closure because we have to go to our next—

Senator KYL. Mr. Chairman, I still have not been recognized on

this point, and I would like to be as a member of the Committee.

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Senator HATCH. Let me just say this, and then of course I will

step aside. Both Justice White and Congressman Hulshof are fact

witnesses to the Ashcroft nomination. They are not appearing in

their official capacities. All I am asking is for basic fairness. Now,

the Chairman can do whatever the Chairman wants to do. I am not

trying to embarrass him. I just feel deeply about this. And I think

I have the reputation of the last 6 years that I have been Chairman of this Committee before now of allowing the Minority to

present opposition witnesses. I do not think that is an untoward request. And what it looks like is that if you just have Justice White

and no opposition witnesses, a fact witness who is relevant to this

on the same panel, then basically it just looks like you are setting

aside one person and giving that person a single panel without any

opposition, and then throwing a Congressman in the mix with a

bunch of very important, but other witnesses who are not at all

fact witnesses with regard to the issue in question. So I just respectfully ask the Chairman to think it over, and I hope that you

will do this because I think it is the right thing to do.

Chairman LEAHY. What this tends to ignore though, is the fact

that because Congressman Hulshof is not here this evening, as we

had expected him and several other members—

Senator HATCH. Well, neither is Justice White.

Chairman LEAHY. And several other members of that panel are

not here this evening. He actually has an advantage that everybody seems to be overlooking. He gets to appear after Justice

White. He gets the last word. I do not know what could be more

fair.

Senator HATCH. Will he be on his own panel?

Chairman LEAHY. I am going to recognize—well, if you want to

have him next Monday, you can, or you can have him Saturday

afternoon as—

Senator HATCH. Frankly, I am asking for fairness. I am not asking for anything else. If you do not want to do it, you are Chairman, and we will live with it. However, I am telling you that we

will put him on afterwards, but make him solely at the table then

just like Justice White.

Chairman LEAHY. Orrin, you can do whatever you want. Now the

Senator from—and we do not need histrionics—but the Senator

from Pennsylvania suggested Saturday afternoon. I, like a loyal

American, U.S. Senator, will be at George Bush’s inauguration Saturday afternoon, but you do what you want.

Let me—and I am going to recognize the Senator from Arizona

first, but let me call to the table, so we can at least try to get started—you are after all the one who asked me to move along here—

Congresswoman Maxine Waters and Congresswoman Sheila Jackson Lee. Would you please come up and take places.

And I yield to the Senator from Arizona.

Senator KYL. Thank you. Mr. Chairman, for 6 years I have been

a Subcommittee Chairman of this Committee, and I have held numerous hearings in which we created panels. And I have been told

in every instance, where we had a witness on one side, that of

course, we had to afford the Minority the right to have a witness

on the same panel to deal with the same issue.

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I inquired as to whether that was a rule, and I was informed,

no, it is not a rule, but it is a longstanding tradition and practice

of the Committee, because of course, it represents the rule of fairness that where you have a particular issue involved, it is fair for

the Minority to have a witness on the same panel as the Majority.

I would urge the Chairman to think this over as well, because

the Chairman will be setting, I think, a very—if I can have the

Chairman’s attention on this, because I am actually speaking to

you, Mr. Chairman, I do not want to be unkind here—I would urge

the Chairman to think this over carefully because the Chairman

would be setting a precedent here. We are going to be in the Majority, at least for a while, starting next Monday. And we would then

have the right, under the last action of this Chairman, under the

precedent that he set, to deny the Minority the right to have members or witnesses on panels that we create. I do not think that is

a very good precedent. I think we should stick with the precedent

of the Committee. It is longstanding. It is traditional. It is fair, and

it is pretty obvious, I think, what the effect of having just one witness on this panel would be, especially if it were not immediately

followed by our witness dealing with the same subject, which as I

understand it, is not the Chairman’s intention.

So while up to now I would consider this process very fair, I

think it would be eminently unfair to proceed as the Chairman

suggests, but worse, would create a precedent that unfortunately

would provide the temptation to those in charge from thereafter to

simply do what they wanted, irrespective of the interest of the Minority. So I would urge the Chairman to think this over this

evening.

Chairman LEAHY. I appreciate that. The precedent, of course, already exists, certainly has in the 26 years I have been here, three

times in the Majority, twice in the Minority, and I have seen the

precedent many times.

If Congressman Hulshof is that concerned about appearing with

his colleagues from the House, we can arrange a time.

Senator KYL. That is not what we are asking.

Chairman LEAHY. We can arrange a time for him to appear by

himself, so he would have the same treatment that Justice White

is having, but I told all of you I would try to move these things

forward. Senator Hatch and I will talk about that. Let’s start with

the witnesses who are here today.

Senator HATCH. Let me just make one last comment. Regardless

of what you decision is here today, should I become Chairman of

this Committee, I am going to practice what I have always practiced, and that is, if the Minority has an offsetting witness, they

are going to be able to call that witness. And I do not care what

your decision is, that is what I am going to do. But I asked my colleague, and we have gotten along very well, and frankly, I think

you have done a very good job in these hearings. I am hopeful that

you will think this over, and I would even agree to let Justice

White go first if you want, and then call Ken Hulshof, Congressman Hulshof, by himself immediately afterwards. And then if Justice White does not like what he says, you can bring him back.

That would be fine with me. But I would like to have this resolved

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because it is only fair. If it was not fair, that is another matter,

but it is so clear on its face that it is fair.

Now, just to make the record clear, should I become Chairman,

the Minority will have the right that I hope we will not be barred

from having as the Minority here, and I will just treat it that way.

So leave it at that. That is all I can—

Chairman LEAHY. As the Senator from Utah knows, I have

stopped this hearing several times to bring in witnesses that I had

not been told we were going to have until the very last second. I

have accommodated them. I put them in. I have been trying to accommodate everybody there. We could have had a whole other

round at his request, and on behalf of Senator—

Senator HATCH. We were prepared.

Chairman LEAHY.—Ashcroft though, we will go into our private

conversation. I worked at having senators who might have wanted

to ask further questions, not to do it.

Congresswoman Waters.

STATEMENT OF HON. MAXINE WATERS, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA

Representative WATERS. Thank you very much, Mr. Chairman

and members. I appreciate the opportunity to appear before you

this evening. I respect the tremendous responsibility that you have

in a matter such as this. It is very serious, and I know that you

will do the very best job that you can. I am here because this issue,

this confirmation is extremely important to me and to people that

I represent.

I have listened very carefully to Senator John Ashcroft yesterday

and today. It is clear to me that John Ashcroft is attempting to

deny the passion and poor judgment he has displayed on certain

critical issues, such as abortion, guns, civil rights and voter rights.

He would have us believe that despite his extreme positions, we

should trust him to be the Attorney General of the United States

of America with the responsibility for enforcing the nation’s laws.

I hate to say this, members, but I must share with you, I simply

do not trust John Ashcroft. I believe he is simply saying whatever

he believes is necessary to be confirmed. John Ashcroft has a

record of opposing minorities nominated to key positions by President Bill Clinton, such as Bill Lann Lee, David Satcher, Judge

Ronnie White.

And it was the unprincipled attack on Judge White that really

caught my attention. Ronnie White has bipartisan support during

the Judiciary Committee hearing. He was also supported by Kit

Bond, the other U.S. Senator from Missouri. John Ashcroft used

Ronnie White as a pawn in his reelection campaign. He manufactured an argument that Ronnie White was soft on crime. After

Ronnie White’s confirmation had been voted out of Committee,

John Ashcroft organized fringe police groups to oppose the confirmation. John Ashcroft then recruited Kit Bond and other Republicans to vote against Judge White on the Senate floor. Ronnie

White’s career has been seriously damaged by an unusual partyline vote, simply because John Ashcroft misrepresented this African-American man as a poster boy for soft on crime, and portrayed

230

Judge White as being too liberal and too dangerous to be entrusted

with a lifetime tenure to the Federal bench.

All of this was a shameless, cheap political sabotage of a fine

judge, who had worked his way out of poverty to obtain an education and serve his country and his state. What John Ashcroft did

was not honest. He knowingly distorted Ronnie White’s record and

misrepresented decisions Judge White had made twisting and distorting his judicial record.

John Ashcroft’s position on abortion is extreme. He rabidly opposes a woman’s freedom of choice even in cases of incest and rape.

In addition, information disclosed by Senator Kennedy during this

hearing today, documented the actions John Ashcroft took to

thwart voter registration by the people of St. Louis, particularly

the black, the poor and the disadvantaged. These revelations are

startling and unsettling.

I am particularly concerned about his record in Missouri because

I was born in Missouri, attended both segregated schools in St.

Louis, Missouri, and I witnessed poverty and exclusion of AfricanAmericans in that city. We had a rough time growing up in St.

Louis, Missouri.

I was in St. Louis 4 years ago during an election where there

was disenfranchisement, and I called the Justice Department from

there.

I know that people like John Ashcroft—now I know that people

like him are responsible for dashing the hopes and dreams of poor

people and African-Americans because of the kinds of decisions

they make in their role as public policymakers.

We have heard no reasonable explanation from John Ashcroft

about his obstruction of efforts to educate and train voting registrars from St. Louis. When these disclosures are added to his attempts to block desegregation programs in Missouri, we are left

with a nominee who should not and must not be confirmed.

I would be happy to answer any questions you may have.

Chairman LEAHY. I should point out also Congresswoman Waters

has been here a great deal, and I know that Congresswoman Jackson Lee has been present throughout these hearings. She is probably as weary as the rest of us, but the Senator from Utah and I

see her often in the House Judiciary Committee. She is a respected

member of that, and I am glad to have you here.

Congresswoman, go ahead.

STATEMENT OF HON. SHEILA JACKSON LEE, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Representative JACKSON LEE. Thank you very much, Mr. Chairman. Might I add my appreciation for the fair and impartial way

in which you have conducted these hearings, and to Mr. Hatch, the

ranking member, let me thank you as well for your graciousness

and those of the members, and members who are here, Senator

Durbin, and, of course, the members who are here as well that

were kind enough to allow us to participate this evening.

If I might, to capture the essence of the nature of concern that

many of us have with respect to the nomination of Senator

Ashcroft, I think it goes to a statement made by Dr. Martin Luther

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King in 1962, ‘‘It may be true that law can’t make a man love me,

but it can keep him from lynching me.’’ Certainly, many of us in the 21st century would like to think

that those kinds of travesties are behind us, and if I was here to

contest Senator Ashcroft’s conservative views, I would be hypocritical. If I was here to contest his religious vigor, I would be likewise hypocritical, for our democracy allows us to hold a number of

different and diverse beliefs, and I am proud of the fact that we

live in a democratic society that gives us that privilege.

But I do want to say to this Committee that I am a product of

a segregated America. I know what it is to be bussed to a school

to integrate that school. I have lived with people who in varying

ways have either been hurt or harmed or felt intimidated because

of the color of their skin, because someone treated them differently.

I had maybe the privilege to understand what it is like to ride

in the back of a train with a brown paper bag with food because

I could not go to the car where food was served.

This is an emotional and passionate time for many of us, and we

thought that as we crossed the bridge into the 21st century, we

might have a time we might not have to look upon those times in

our lives when we were treated so differently and distinct and others took it lightly that we should even be concerned.

So the reason I am here as a member of the House Judiciary

Committee and representing constituents from a Southern State,

the State of Texas, that itself has faced the challenge of integration

over segregation, is to tell you that what bothers me and bothers

my constituents is what has been shown in Senator Ashcroft’s

record.

Chairman Leahy, I have spent time in this hearing room, and I

have heard a man say quite differently, quite in contrast to his

record. He speaks eloquently now of Roe v. Wade, but I know as

a young woman growing up what it meant not to have the protection of the law, women who lost their lives in back-room alley abortions. Roe v. Wade is the law of the land, but it is a life-and-death

issue.

I also understand very well this whole question of discrimination

because I am a product of watching Martin Luther King be assassinated, and I take very seriously his day of honor, January 15th,

the day we honor him and as we honored him this week. Many of

us still cry when we hear the words ‘‘We shall overcome.’’

So I come, again, I hope not in the viewpoint of being in opposition to an American who has presented himself to this country for

service, nor particularly in opposition to the President’s right to

choose his Cabinet. I would say to President-elect Bush that I was

taught to believe a person’s word, and I do believe he indicated

that he would seek to find ways of healing this Nation and bringing us together.

I do believe when you reject people because they are different,

such as Ambassador Hormel, that you do raise the question of

whether you can accept in your spirit, in your heart, and in the

practice of law the fact that we all are created equal.

Charlene Hunter, the Little Rock 9, and James Meredith represent the names we somewhat identify with kicking open the

doors of opportunity quality in higher education. It doesn’t seem

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right that just about 20 years ago, Attorney General Ashcroft was

in the middle of denying equal opportunity to education. It seems

that it was something that did not really have to be done, which

is one of the reasons that I come before you.

John Ashcroft as Attorney General, as Governor of the State of

the Missouri consistently opposed efforts to desegregate schools in

Missouri which for more than 150 years had legally sanctions separate and inferior education for blacks.

Let me cite for you a report, the Woodstock Report, that talks

about the fact that we have not overcome in desegregating our

schools. As recently as 1993, it said while there has been significantly an amount of success in school desegregation of the last 25

years, in general, segregation has not decreased significantly since

1970. In fact, in some areas, it has gotten worse. Today, 22 or 23

of the 25 largest central city school districts in this Nation are predominantly minority. What that means to this Committee is that,

yes, an Attorney General of this vintage, of this era, of this millennium will still have issues of how do we desegregation.

Missouri had a long and marked history of systematically discriminating against African-Americans in the provision of public

education, and during 45 years of slavery, the State forbid the education of blacks. After the Civil War, Missouri was the most Northern State to have a constitutional mandate requiring separate

schools for blacks and whites. This constitutional provision remained in place until 1976. For much of its history, Missouri provided vastly inferior services to black students.

After the Supreme Court’s ruling in Brown v. Board of Education, the Missouri Attorney General’s office, rather than ordering

the dismantling of segregation, simply issued an opinion that local

districts may permit white and colored children to attend the same

schools and could decide for themselves whether they must integrate.

Local schools in St. Louis and Kansas City perpetrated segregation by manipulating attendance boundaries, drawing discriminatory bussing plans and building new schools in places to keep races

apart.

The St. Louis case that is relevant in this proceeding over these

next days was filed in 1972. St. Louis had adhered to an explicit

system of racial segregation throughout the 1960’s. It took a long

time. White students were assigned to schools in their neighborhood, black students to black schools in the core of the city. Black

students who resided outside the city were bussed into black

schools in the city. The city had launched no effort to integrate. It

simply adopted neighborhood school assignment plans that maintained racial segregation. There was a need for healing. There was

a need for leadership. There was a need to get outside of the box

of the representation that the Senator made that he was only representing the State.

In 1972, Minnie Ladelle and a group of black students filed a

class-action lawsuit against St. Louis Board of Education. In contrary to the Senator’s testimony, the State was made a party to

this action, and the Eighth Circuit ultimately found that the State

and the city school board were responsible for maintaining school

segregation for many years following Brown and that they acted in

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violation of the constitutional rights of the plaintiff school children.

With this ruling, the Eighth Circuit ordered that a desegregation

plan be revised.

In 1980, the parent and student plaintiffs along with the city

board amended complaints seeking a metropolitan school to segregation remedy. They did it voluntarily. They worked together.

Subsequently, the District Court announced a voluntary inter-district desegregation plan and added that the 22 St. Louis County

school districts as defendants—or added them as defendants.

Senator Ashcroft, then Attorney General, challenged the desegregation plan. He argued that there was no basis for holding the

State liable and that the State had taken the necessary and appropriate steps to remove the legal underpinnings of the segregative

schooling as well as affirmatively prohibiting such discrimination.

The courts rejected the attempts. They characterized his acts as

dilatory.

In 1983, the city school board and the 22 suburban districts all

agreed to a unique and comprehensive settlement, implementing a

voluntary 5-year school desegregation plan for both the city and the

county. Importantly, the plan was voluntary. It relied on voluntary

transfers by students rather than so-called ‘‘forced bussing.’’ The

District Court approved the plan, and, again, Attorney General

Ashcroft representing the State was the only one that did not join

the settlement. He opposed all aspects of the settlement. In fact,

he sought to have it overturned.

The Eighth Circuit upheld, however, most of the provisions of the

plan and emphasized that three times over the prior 3 years, it had

specifically held that the State was the primary constitutional violator. Not satisfied then, Senator Ashcroft sought review in the Supreme Court and was denied his request, and even after his unsuccessful appeal, Senator Ashcroft continued to obstruct the operation

of the settlement leading the District Court to conclude if it were

not for the State of Missouri and its feckless appeals, perhaps none

of us would be here at this time.

And when he became Governor, Governor Ashcroft continued to

obstruct the desegregation plan of the State’s educational institutions well into the 1990’s. Judge Stephen Linbaugh who was appointed by President Reagan actually stated that the State was ignoring the real objections of this case, a better education for city

students and public schools.

Might I say to you this. I wanted to chronicle the history of this

desegregation order and plan not because this Committee is not

really in its own way in securing its own information, but I personally needed to add to you a very disheartened voice.

I don’t know how long I can continue, maybe, without feeling a

real deep pain. I would hope that Senator Ashcroft’s representation

before this Committee were absolutely true, that he could vigorously defend the laws whether it is Roe v. Wade, affirmative action,

as it is in the Federal law. It is mend it, don’t end it. It still exists,

the Voter Rights Act of 1965 which has to be reauthorized.

But there is another key element to being the Attorney General

of the United States of America. It is the perception that vulnerable people have about what the Federal Government does, and I

am reminded of what happened in Little Rock. They called PresiVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00247 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.002 SJUD4 PsN: SJUD4
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dent Eisenhower. They called President Kennedy. They called

President Lyndon Baines Johnson, and the men that had to act at

that time, since it was not women, were the Attorneys General of

the United States of America, and when they acted, they acted

sometimes out of the realm, not out of the rule of law, but out of

the realm that what was popular or what was standard or what

was the basis or maybe what was even centennial law in order to

ensure that vulnerable people were protected. Every single day,

more so than Health and Human Services or Commerce, more so

than the Secretary of State, the Department of Justice is called

upon to work for the vulnerable, Alabama, Ohio, Utah, Vermont,

Illinois, California, Texas, and elsewhere.

What disturbs me, Mr. Chairman, and why I ask this Committee

to consider the record of Senator Ashcroft is the fact of whether or

not he can be the protector that needs to be for the people of the

United States.

I will close by simply saying this. I know that Judge White will

present himself tomorrow. I, however, believe that temperament of

words is a key element as well. All of us will live by what we say,

and I believe that words that will suggest a jurist has a pro-criminal bent based upon one case or cases that are a bare minimum,

if you will, of the cases that he decided shows some question of an

individual’s temperament for protecting the vulnerable.

I thank the Committee for their kindness and the opportunity to

make my testimony this evening.

Chairman LEAHY. Thank you very much to both Congresswoman

Waters and Congresswoman Jackson Lee. I think your testimony

is extremely important, and I can’t begin to summarize either the

eloquence to the depth of your statement.

Let me touch, both of you, on three points. There is a discussion

of Roe v. Wade. I remember the days of the back-alley abortionists.

I prosecuted one of the worst people I ever knew. We first found

out about what he was doing when I was called to the emergency

room of our local hospital. A young woman in her teens, a college

student in the area of her school nearly died from a botched abortion. She lived, sterile as a result.

This particular person who I then prosecuted as doing this would

be found that he had arranged this back-room program. He would

bring young pregnant women to Montreal. The abortions would be

conducted by a woman who learned how to conduct abortions while

working for the SS at Auschwitz. He would then blackmail these

women for money or for sex.

Now, I was a young prosecutor, a father of three children, in my

twenties. I prosecuted him. I convicted him, but I went a step further. I arranged a case which became Beecham v. Leahy in Vermont. It was a precursor of Roe v. Wade, and basically Vermont

took the same position as Roe v. Wade and said that abortions

under appropriate mediate circumstances and all would be legal. I

had already arranged that in our county because I made it very

clear there not be prosecutions within the hospital, period. It is

now the law in Vermont, anyway. First, it was case law. Now it

is statutory law. So I understand that.

You had spoken of Justice White, and I understand how easy it

is to condemn a judge who usually cannot respond, but I know and

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I had spoken about this on the floor of the Senate how terrible it

is when there is condemnation because one disagrees with a judge

who said not that I want to release a person who has been charged

with a heinous crime and by all accounts was guilty of a heinous

crime. He never said I wanted to release him. He said, ‘‘I want to

make sure he is guaranteed a fair trial.’’ I mean, to condemn him for that is almost like condemning an

attorney who is assigned to represent a criminal. They are fulfilling

and upholding our Constitution to do.

Now, some may agree or disagree in the law that he applied, but

what he was saying is not release a criminal but guarantee that

all of us have a fair trial, because that guarantees that the guilty

are punished, the innocent remain free.

Now, how anybody can condemn that—and I was both a defense

attorney and a prosecutor—I don’t know. He has been labeled a

number of things. He voted to uphold convictions 95 percent of the

times that the Justices of the Missouri Supreme Court appointed

by then-Governor Ashcroft. So I understand that.

The one area that your experience, both of you—and I have

known you both for years—that really touches me that I can’t

know—I come from a State which is 98, 99 percent—I haven’t got

the latest census records—white. I think probably—when we talk

about ethnic groups or minority groups in Vermont, we are talking

about recent immigrants to our State either from Canada or other

countries, like my grandparents or my parents-in-law. The relationships between whites and blacks I have learned in my years of

going to law school here or on the first trip that I made as an 18-

year-old, which would be 1958, to Washington with my parents,

sightseeing, and seeing segregated water fountains. Inconceivable

in our State of Vermont. I mean, we wouldn’t know what you’d do

with them. Seeing that here in Washington, D.C., the capital.

Now, what I have learned, though, in my years here, I think, a

depth of the feeling that you have expressed far more eloquently

than I ever could. And what I have learned is that all of us, white,

black, or whatever, who serve in positions of trust in the government of this country or the government of our State have a responsibility to everybody. That is not just to say I have no bias, I have

no prejudice or anything else, but to make sure you take the steps

necessary to demonstrate that it is an inclusive not an exclusive society, a society I want for my children and grandchildren. I want

to be inclusive, not exclusive.

We are a Nation of 280 million Americans. It is our inclusiveness

that makes us strong. It is our exclusiveness that shatters us and

makes us weak.

Now, there are only 100 of us who can vote on a question of a

nomination, a Presidential nomination. When we vote, we have to

ask, Do we include or do we exclude?

The Senator from Utah.

Senator HATCH. Thank you, Mr. Chairman. I won’t keep you

long. I want to express my gratitude to both of you for being here

today and being here this late this evening and for the eloquent

statements that you have made.

I will just say this: I was raised in poverty, and I learned a trade

as a young man. I was fortunate enough because my father was a

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skilled tradesman, and I was able to join the union. We had three

African-American lathers in our local, and they always got the

worst work there was. I worked with them, not very much, but I

was one of the few who did. I was proud to do it, and that meant

on one occasion, if I can remember correctly, climbing with about

a 65-pound tool box on one arm straight up five floors up to about

the 15th floor of a building, one rung at a time, and then putting

floor lath down, which was the most back-breaking work there was,

which is what they were given. So I sense very strongly and feel

very deeply about your feelings.

Now, I also know Senator Ashcroft very well, and I believe, having watched him very closely, that when he says he will do something, he will do it. He is a religious man. He is a very good man.

He has had 30 years of public service—at least 27 to 28 years, I

guess. I say about 30 years. And I am sure anybody who has been

in public work for that long is going to have a record that can be

condemned from time to time by somebody.

But everybody here knows he is a man of integrity, and when he

says he will do something, I think he will. But I just wanted to

make that point. I don’t want to prolong this.

I want to thank you both for being here. I respect both of you,

as you know, and I am grateful that you could be here and express

your particular points of view.

Chairman LEAHY. Senator Durbin?

Senator DURBIN. Thank you, Mr. Chairman.

To my two friends and former colleagues from the House, thank

you for your patience. I have watched you all day sitting there listening as we have gone through this Committee hearing, and it

says a lot about your commitment to this issue and this nomination

that you would wait here for this opportunity to speak.

And, Congresswoman Waters, I grew up across the river in East

St. Louis, and so we come from similar backgrounds.

And, Congresswoman Jackson Lee, thank you, too, for being

here.

I am a product of the 1960’s. I naively believed as a college student that if we could pass those civil rights laws that my children

wouldn’t even understand what racism was all about, wouldn’t understand what prejudice meant. I would have to sit down and explain that is the way it used to be.

Things have gotten better, and thank goodness for that. But I

have come to understand that it just isn’t the law that makes it

better. You need a government that believes in that law, that enforces that law and implements that law, and doesn’t just do it out

of duty but does it out of a heartfelt commitment. That government

is not an abstract unit. That government consists of people. And

the reason why this Committee, this Judiciary Committee, seems

to struggle with the question of race so frequently is because the

Department of Justice is really the place we turn to when it comes

to civil rights.

We want to know that whoever is heading that Department not

only understands the law and their legal obligation but has a commitment in their heart to make sure that it works.

I have not accused Senator Ashcroft of racial prejudice, nor will

I. I don’t believe that is appropriate. But I do question some of the

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decisions which he has made which have raised questions in the

minds of people who wonder if he has that heartfelt commitment.

What happened to Justice Ronnie White should never happen to

anyone. To be pilloried on the floor of the U.S. Senate as being procriminal after what that man has gone through in his life, in his

professional background, that is why I believe it is appropriate for

him to sit in that chair tomorrow by himself with that microphone

and defend himself, for the first time in over a year to have a

chance to tell his side of the story. The rebuttal witnesses will have

their time, too. But he deserves that respect.

And I said it to Senator Ashcroft today, and I will repeat it. I

believe what happened to him was disgraceful, and I don’t believe

the facts back it up. And if Senator Ashcroft disagreed with one decision or another, that is not enough to reject a man who had waited over 2 years for that opportunity.

Congresswoman Jackson Lee, that school desegregation story

that Senator Kennedy has returned to time and time again is an

important one, and it is, I think, especially important to note that

we are talking about a voluntary desegregation plan. The people in

St. Louis came together and said put the judges aside for a minute,

let’s let the parents and teachers and administrators and interested

citizens find the solution for our community, and consistently ran

into opposition from Senator Ashcroft in his official public positions. That is what causes some concern and questions as to whether he has the heartfelt commitment to make sure that the laws are

implemented well.

Thank you both for being here. Your testimony makes a big difference.

Chairman LEAHY. The Senator from Pennsylvania.

Senator SPECTER. Thank you very much, Mr. Chairman. Just a

word or two.

Thank you for coming. Thank you for staying. We are in the 11th

hour of this hearing today. At 10 a.m., it was standing room only.

Now there are plenty of seats. If anybody wants to come and see

the hearing, there is easy access to the Russell Senate Office Building.

I appreciate what you Congresswomen have had to say. You are

both very, very vigorous advocates. Congresswoman Sheila Jackson

Lee is outspoken. She has outspoken me on a number of occasions

when we have been on shows together. And with Congresswoman

Maxine Waters, just a very short story. I chaired the Intelligence

Committee a few years back, and we were having a hearing on

whether the CIA was selling narcotics in Los Angeles to finance the

contras. And Congresswoman Waters came in to quietly raise a

point or two, and I invited her to sit on the panel, made her a part

of the Senate panel. I demoted you for a day, Congresswoman Waters.

And I understand your concerns about civil rights, about the

issues you have raised, and I won’t detail why I understand them,

but I do. And I don’t have to talk about a record here. We all can’t

agree on everything, and my vantage point of Senator Ashcroft is

a little different, having worked with him very closely, and he has

answered a lot of very important questions. And there will be a lot

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of Congressional, senatorial oversight. But you are a couple of

fighters, and I have great respect for you.

Thank you.

Representative JACKSON LEE. Thank you, Senator.

Chairman LEAHY. I thank the Senator from Pennsylvania.

The senior Senator from New York.

Senator SCHUMER. Thank you, Mr. Chairman, and let me join all

of my colleagues here in the Senate in thanking the two Congress

Members not only for their testimony but for their diligence and

patience. They are both former colleagues of mine, and we both

worked together, Maxine and I on the Banking Committee and

Sheila and I on the Judiciary Committee. And we had a lot of good

times over there.

Let me ask just one question here, and I think this is—I agree

with Senator Durbin and all of my colleagues. I do not believe that

Senator Ashcroft is a racist. I believe that he has appointed people

of color to high office, and I think those of us who are on the more

liberal side of the spectrum shouldn’t demand that diversity means

ideological similarity.

What troubles me here is a certain insensitivity, I guess I would

say, to the long and tortured history of race as a problem in America. And to me, that insensitivity deals with the always present or

often present double standard. In other words, the way I would

look at something is I would try, and I think we all should try, to

be very careful. When you are opposing a black person for an office,

you ought to make sure that you have imposed the same standard

on everybody else. And you wouldn’t normally have to do that if we

didn’t have a history of racism and if we didn’t have a history of

racial division. Then you would just say let’s look at the merits and

go for it. And certainly my views on crime issues and the views of

both of you are not quite the same, as we learned during the crime

bill. But that to me is not the issue. It is not a question of whether

Judge White was soft on crime. Senator Ashcroft could well believe

in good conscience that he was.

The question is: Did Senator Ashcroft apply the same standard

to Judge White’s, quote, soft-on-crime stands that he applied to

other judges? I can’t remember the numbers in his testimony, but

he approved, he voted to approve something like, I don’t know, 210

out of the 240 judicial appointments that President Clinton put together.

My guess is—I have not researched this, although I hope by tomorrow morning I will—that a good number or some number of the

judges that Senator Ashcroft voted for were probably more liberal

on crime issues than Judge White. That is the troublesome thing

here.

I think as a Senator, as an American, and certainly as an Attorney General, we need somebody who is going to be sensitive to that

issue, that because a double standard has existed in America for

so long, we have made progress in eradicating that standard over

the last 30 or 40 years, but it is still there all too often, that one

has to be sensitive to that. And the job of Attorney General demands particular sensitivity.

I understand there was a political campaign going on, and I understand that when you get down to the wire there are lots of

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things any human being, all of us included, might do. But I think

there are certain areas off limits, and one of them is not being sensitive to that double standard because double standards have been

so poisonous to America for our history. And I just wonder if either

of you would like to comment on that concept.

Representative WATERS. I certainly would like to comment on

that concept, Senator. I want to try and share something with you

that may help you to understand our very, very deep feelings about

something like this.

First of all, let me just say this: Coming up, having been reared

in St. Louis, Missouri, where there was a lot of poverty and segregated schools and parents who were striving very hard to give

their children a chance—and, I mean, it was rough. Just as Judge

Ronnie White describes how he used to clean up, worked as a janitor as a kid in the White Castle stores, we started working when

we were 11 and 12 years old. We didn’t work for extra money. We

worked because if we didn’t work, we wouldn’t have any clothes to

go to school with. And during the summertime, we took jobs in segregated restaurants. I worked in Thompson’s where black people

couldn’t eat. And at lunchtime, we could not eat in the restaurant.

We had to eat in the basement. We did that because we had to

have clothes to go back to school in September.

All of the kids in our neighborhood started work at a very early

age, and many of us not only bought clothes, but the dollars that

we earned helped to feed the other kids. There was no birth control. My mother had 13 children. She had a fourth-grade education.

And she worked on the polls. She didn’t know a lot. She could not

help a lot of the people who wanted to vote. That’s why this business about excluding St. Louis in the voter registration training of

registrars kind of strikes at me. I watched her work on the polls

and do the best that she could. She believed in voting, and a lot

of people in our neighborhood did not believe in voting.

And so when you talk about these things, we are not relating to

them in abstract. It touches us very, very deeply, and it hurts.

Now, when you talk about the insensitivity, it could be described

as that. But, you know, there is something called 1,000 nicks.

Chairman LEAHY. What?

Representative WATERS. A thousand nicks. They add up. And

when the nicks continue over a period of time, then you define

yourself. You define yourself in ways that many of us who have

had to be on the lookout all of our lives for the obstacles, how to

get around them, how to keep people from limiting our opportunity.

We know it when we see it. And he fits the description.

And I want to tell you that the insensitivity that you describe is

even deeper than that, because to be an African-American man

who has had to struggle through poverty and struggle through all

that he had to go through with, knowing that you have to be better

than most in order to get something like an appointment to the

Federal bench. There are not many of us who get appointments

like that. And you work your way up, and you work hard. You play

by the rules. You do everything that you possibly can, and you get

the support in the Judiciary Committee, bipartisan support. And

you have a lot of supporters with you—only to be stopped on the

floor in an unusual and extraordinary way is beyond insensitivity.

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You cannot fall back and describe yourself as being a person of

high moral character and a person deeply steeped in religion. We

know something about religion, too, and it teaches us to be better

than that. You don’t destroy human beings simply because you

have the power to do it. You help people. You don’t take this vulnerable African-American man who has worked all of his life

against the odds to get to a place where most of us will never get

and sandbag him because all of a sudden you have got an election

and he becomes the poster boy for your election, and you can only

be appealing to a certain element in our society with that kind of

argument is beyond sensitivity, Senator.

And I want you to know that that is when he really caught my

attention. And I want to tell you, he could sit here and he could

say to us over and over again, Well, I did that then, but I am going

to be better, yes, I know I have been passionate on this, but I am

going to enforce the laws.

It does not ring true. It does not ring true.

And let me close by saying this, and it is kind of a secret I will

share with you about what happens in African-American communities and in homes. We fear for our children, and we fear for these

black boys. And I can recall when my son was in school in a certain

place in the State that was known to have Ku Klux Klan activity.

And he met a very nice young white boy who wanted him to go to

his house for Thanksgiving. But it was in a community where there

were no blacks, and this community had a reputation. And I said

to my son, You can’t do that, you cannot do that. You cannot be

caught in a community where we know there have been some problems in the past, no matter how much you like your friend and no

matter how good you think he is. He probably is a very fine person.

But we know that if you get caught at the wrong time and the

wrong place, you will become fodder for people whose intentions

are not honorable, for people who are racist, for people who would

destroy you. And we have to continue to remind our children day

in and day out about what they can’t do, where they can’t be, how

they got to be careful. And Ronnie White followed all of the rules

and he had to be careful in order to get where he got. And to be

treated the way that he was treated, to be sandbagged the way

that he was treated, he will never get over it, and his career may

have been damaged forever.

And so, yes, I understand what you are saying, Senator, about

sensitivity. But let me just tell you, those of us who have to guard

against getting sandbagged all of our lives call it something else.

It goes a little bit deeper than simply a lack of sensitivity.

Representative JACKSON LEE. Would the Chairman allow me to—

Chairman LEAHY. Of course.

Representative JACKSON LEE. He said one or both of us, and I

feel compelled to respond, Senator Schumer, because I think you

captured the relationships, the working relationships. We can all

work together. You worked with both of us, Congresswoman Waters and myself, and Senator Hatch made a comment as well, along

with Senator Durbin, on this whole issue of race. And I want to

just refer you—and we ask the question where were we on the day

tragically of the assassination of President Kennedy. Many of us

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ask the same question of where we were the day Martin Luther

King was killed.

This is not an attempt to create hysteria as much as it is an attempt to characterize for you what we hear and see. We still have

heroes in the African-American community. We still look to that

one judge on the Missouri Supreme Court. It was Ronnie White. He

is a hero. It was an honor. You may think that African-Americans

do not pay attention to that journey on the floor of the Senate, but

they did. And frankly, they viewed the actions of Senator Ashcroft

more as a shredding of a man’s reputation and his dignity.

I read the transcript when he came to this Committee and he introduced his wife and his son, and he was proud of that, and he

had his aide here. I saw the language of Senator Kit Bond, in fact,

that said he had the necessary qualifications and character traits

which were required for the job.

William Clay, who retired, presented him and mentioned that he

went first to Senator Ashcroft to get his blessings and believed that

he had it.

I just want to put into the record the numbers as I conclude

about this whole issue of the death penalty cases because, whenever you see faces like mine, you immediately box us in. There is

a diverse opinion in our communities on crime, on the death penalty. I can assure you that the African-American community are

law-abiding. They are intimidated by crime. They want to make

sure that those who are convicted fairly of a crime, the crime is addressed, but that is no reason to blanket us and to assume that

Justice White could be so tattered and tainted without really looking into his record.

We find that Judge White voted to uphold the death sentence in

41 of the 59 cases that came before him, roughly the same proportion of Ashcroft’s court appointees when he was Governor.

In fact, of these 59 death penalty cases, Judge White was the

sole dissenter in only three of them. That means that he was joined

by other members of the Missouri Supreme Court.

Lastly, what seemed to not get to be part of the record is the 15

cases, and it may be in this record, of course, of which Judge White

wrote the majority.

Senator Biden asked the question to Senator Ashcroft that I

think was never asked. Justice Scalia wrote an opinion in contrary

to what you think his views were as relates to the death penalty

which might have been characterized as liberal, meaning that it

might have been characterized as an opinion where the defendant

was given the right to redress his grievances.

The question is that Senator Ashcroft go to the floor of the House

to comment on that decision or maybe other decisions of like-situated individuals or did he single out Justice White, and so the

question I have on both the segregation or desegregation order and

as well as Justice White, it is not where we stand in times of comfort and calm. It is not the 200 non-controversial appointees that

the Clinton administration put forward even in the Foreign Relations Committee or the Judiciary Committee. We all can find common ground on the non-controversial.

It is not the question of whether or not we have friends, that we

don’t have it in our heart. Senator Hatch, I don’t have any reason

242

to believe that Senator Ashcroft is racist in his spirit, his heart. I

only go on his record, on his actions, and when I ask the question— and so I make no accusations here. What I ask the question, the

vulnerable need the Attorney General. I need him. My community

needs him, and he will have to make decisions in controversy. He

will have to make decisions when it is unpopular to do what is

right.

My challenge is or the question I raise is why in the voluntary

efforts of his community, why he didn’t rise to the occasion, a man

of faith, a man who loved this country, to heal us, applaud the

agreement, bring the agreement to the point of success, use his office to guide the agreement to a successful legal end and a successful end in terms of the communities having it work, and last with

Justice White, why did he not in the course of making a decision

about Justice White rise in this controversial time that had been

created to the point of looking at his holistic record for the greater

good, rising above politics and championing Justice White’s nomination and successful vote on the floor of the Senate. It is where

you stand in time of controversy, and that is what African-Americans, but as well vulnerable Americans, look to the Attorney General position and the Department of Justice, will you help us when

we need you.

Chairman LEAHY. Thank you.

The senior Senator from Ohio.

Senator DEWINE. Thank you, Mr. Chairman.

I just want to thank our witnesses for their patience today, and

I appreciate their testimony. I don’t have any questions.

Chairman LEAHY. The Senator from Alabama.

Senator SESSIONS. I join in thanking the witnesses, and it is good

to see you. Congresswoman Jackson Lee, you have been here all

day. I kind of wish you could have been on this side and maybe

seen John’s testimony on the face. I think he was very sincere, and

I think you will be very pleased with his service.

Chairman LEAHY. Unless there are further questions, we will

stand in recess until 9:30 in the morning.

Representative JACKSON LEE. Thank you so very much.

[Whereupon, at 9 p.m., the Committee was recessed, to reconvene

at 9:30 a.m., Thursday, January 18, 2001.]

(243)

NOMINATION OF JOHN ASHCROFT TO BE

ATTORNEY GENERAL OF THE UNITED STATES

THURSDAY, JANUARY 18, 2001

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, DC.

The Committee met, pursuant to notice, at 9:36 a.m., in room

SR–325, Russell Senate Office Building, Hon. Patrick J. Leahy,

Chairman of the Committee, presiding.

Present: Senators Leahy, Kennedy, Kohl, Feinstein, Feingold,

Schumer, Durbin, Cantwell, Hatch, Thurmond, Specter, Kyl,

DeWine, Sessions, Smith, and Brownback.

Chairman LEAHY. The Committee will be in order. I would urge

those who are attending to please take their seats.

Judge White, I want to thank you for responding to the Committee’s request to be here today. As you know, there has been a great

deal of discussion about Senator Ashcroft’s efforts to defeat your

nomination to the United States District Court. Many have said

that it was a defining moment of his Senate career. His supporters

say it defined him in a way he wanted. Those who disagreed say

it defined him in yet a different way. Most importantly, your testimony may help us understand what happened, even why it did

happen. And so I thank you for being here.

We will hear your testimony, but first did you have anything you

wanted to add?

Senator HATCH. No. I am happy to just proceed. Thank you.

Chairman LEAHY. And you know we have these lights. I think I

explained the way they work. We will have your statement, Judge,

and then we will do the usual bit, as I explained, going back and

forth. You have been in legislative bodies. You are well aware of

this. Thank you for being here, sir.

STATEMENT OF HON. RONNIE WHITE, JUDGE, MISSOURI

SUPREME COURT, JEFFERSON CITY, MISSOURI

Judge WHITE. Thank you, Mr. Chairman, Senator Hatch, and all

members of the Judiciary Committee, for inviting me here to testify

today. Thank you for twice voting in favor of my nomination to the

Federal district court in 1999 and 1998.

I appreciate this opportunity to tell my story to the U.S. Senate

and to reclaim my reputation as a judge and a lawyer.

It will be up to you, members of the Committee, to determine

what light this narrative casts on the decision you will make in

voting to confirm the next Attorney General of the United States.

244

I am the oldest son born to teenage parents. When I was born,

my mother was 16 years old and my father was 19 years old. My

mother dropped out of high school in the ninth grade to take care

of me. My father worked in the post office, first as a mail sorter

and then as station manager. As I grew up, I watched my mother

and father work hard, play by the rules, and never quite make

ends meet.

We lived in an unfinished basement of a home with jagged concrete walls and without a kitchen or bathroom. I grew up in a segregated neighborhood in St. Louis.

When I was 10 years old, I was bused to a grade school in south

St. Louis where kids would throw milk and food at us and tell us

to go back to where we came from. This racism only strengthened

my determination. I was not going to let my color, the color of my

skin—or the ignorance or hatefulness of others—hold me back. I

would get the best education I could, and I would use that education to make a better life for myself and for my family and for

my community.

My parents could not afford to pay for my education. Since age

11, I have always worked to earn money. I sold newspapers for a

half-cent each, and I worked as a janitor at a fast-food restaurant.

I worked my way through high school, college, and law school. Although balancing work and school was not always easy, I struggled

through it and made it.

I have earned my good reputation as a lawyer and a judge by

earning the respect of my neighbors. I was elected to the Missouri

Legislature in 1989, and when I was in the legislature, I was twice

selected to be chairman of the Judiciary Committee. As Chair of

this Committee, I worked with my legislative colleagues, members

of the executive branch, and citizens and law enforcement officials

to strengthen the laws and the application of those laws on behalf

of the people of my State.

In 1994, I was appointed to the Missouri Court of Appeals by the

late Governor Mel Carnahan. One year later, Governor Carnahan

appointed me to the Missouri Supreme Court. It is the law in Missouri that State Supreme Court judges are voted on by the people

after they have been appointed. I came up for a retention vote in

1996 and received more than one million votes.

I was the first African-American to serve on the Missouri Supreme Court, the first in the 175-year history of the court. Born

into segregation, I broke this color barrier.

The high point of my professional life came in 1998 when President Bill Clinton nominated me to the Federal district court at the

suggestion of then-Congressman William Clay. What an amazing

feeling for a young man from the inner city of St. Louis.

At that moment, I felt that I was living the American dream. If

you work hard, no matter your race, class, or creed, you can succeed. This is why my parents—and millions of hard-working families throughout this great country—dream of for their kids.

However, even though the American Bar Association gave me a

unanimous qualified rating, my nomination was not confirmed. I

was approved twice by this Committee, by votes of 15–3 and 12–

6, but I was voted down by the U.S. Senate at the urging of Senator John Ashcroft.

245

What happened? When I came before this Committee, I was introduced by Senator Kit Bond, who urged my confirmation. Congressman Clay also introduced me and reported to this Committee

that Senator Ashcroft had polled my colleagues on the Supreme

Court, all of whom he had appointed when he was Governor, and

that they spoke highly of me and said I would make an outstanding Federal judge. After the hearing, we received additional followup questions from Senator Ashcroft. The other nominees were

asked six questions. I was asked those questions and an additional

15. I answered all of those questions in a full and timely manner.

And then I learned that Senator Ashcroft was opposing me. I was

very surprised to hear that he had gone to the Senate floor and

called me ‘‘pro-criminal,’’ ‘‘with a tremendous bent toward criminal

activity,’’ that he told his colleagues that I was ‘‘against prosecutors

and the culture in terms of maintaining order.’’ I deeply resent those baseless misrepresentations. In fact—and I

want to say this as clearly as I can—my record belies those accusations.

Senator Ashcroft said on the Senate floor that I had a ‘‘serious

bias’’ against the death penalty. According to my records, at the

time of my hearing, I had voted to affirm the death penalty in 41

of 59 cases that I had heard. In 10 of the remaining 18 cases, I

joined in a unanimous court in voting to reverse. In two other reversals, I voted with the court majority.

These are the facts: I voted with the majority of the court in 53

of 59 death penalty cases. In only six cases did I dissent, and in

only three of those was I the lone dissenter.

Senator John Ashcroft has pointed to the case of State v. Johnson as the main reason he opposed my nomination. Yet this case

did not appear in any of the questions he sent to me. Senator

Ashcroft never raised the Johnson case with me, never questioned

me about my opinion, or asked me to explain my reasoning.

My dissenting opinion in this case urged a new trial, not a complete release. I based my opinion on the sound and settled constitutional law as handed down by the U.S. Supreme Court in Strickland v. Washington. I never disregarded the terrible violence that

had been done in this case. Senator Ashcroft’s rhetoric left the impression that I was calling for Johnson’s release. This is just not

true.

The record of this case—indeed, my entire record—shows that it

is not true—a record I am now glad to have the opportunity to explain to the U.S. Senate. My record as a judge shows that the personal attacks made on me were not true. I am proud of my record

as a judge. I have lived up to the confidence expressed in me by

Governor Carnahan and the people of Missouri. After decades of

public service, I come before you today more committed than ever

to the rule of law.

When I was 10 years old, I stood up to the bullies who made

mean-spirited comments and tried to drive me away. Today, I am

here to stand up for my record, my reputation as a judge, and as

a citizen.

Thank you for giving me the opportunity to testify today, and I

will be pleased to take any questions you may have.

[The prepared statement of Judge White follows:]

246

STATEMENT OF HON. RONNIE WHITE, JUDGE, MISSOURI SUPREME COURT, JEFFERSON

CITY, MISSOURI

Thank you Chairman Leahy, Senator Hatch and all of the members of the Judiciary Committee for inviting me to testify today. Thank you for twice voting in favor

of my nomination to the Federal District Court, in 1998 and 1999.

I appreciate this opportunity to tell my story to the United States Senate. And

to reclaim my reputation as a lawyer and a judge.

It will be up to you, members of the Committee, to determine what light this narrative casts on the decision you will make in voting to confirm the next Attorney

General of the United States.

I am the oldest son born to teenage parents. When I was born my mother was

16 years old and my father was 19 years old. My mother dropped out of high school

in the 9’’ grade to take care of me. My father worked in the post office; first as a

mail sorter and then as station manager. As I grew up, I watched my mother and

father work hard, play by the rules and never quite make ends meet.

We lived in an unfinished basement of a home with jagged concrete walls and

without a kitchen or bathroom. I grew up in a segregated neighborhood in St. Louis.

When I was 10 years old, I was bused to a grade school in south St. Louis where

kids would throw milk and food at us and tell us to go back to where we came from.

This racism only strengthened my determination. I was not going to let the color

of my skin—or the ignorance and hatefulness of others—hold me back. I would get

the best education I could, and I would use that education to make a better life for

myself, for my family and for my community.

My parents could not afford to pay for my education. Since age 11, I have always

worked to earn money. I sold newspapers for half a cent each, and I was a janitor

at a fast food restaurant. I worked my way through high school, college and law

school. Although balancing work and school was not always easy, I struggled

through and made it.

I have earned my good reputation as a lawyer and judge by earning the respect

of my neighbors. I was elected to the Missouri Legislature in 1989, and when I was

in the Legislature I was twice selected to be Chairman of the Judiciary Committee.

As Chair of the Committee, I worked with my legislative colleagues, members of the

executive branch, and citizens and law enforcement officials to strengthen the laws

and the application of those laws on behalf of the people of my state.

In 1994, I was appointed to the Missouri Court of Appeals by Governor Mel

Carnahan. One year later, Governor Carnahan appointed me to the Missouri Supreme Court. It is the law in Missouri that Supreme Court judges are voted on by

the people after they have been appointed. I came up for a retention vote in 1996

and received more than one million votes.

I was the first African-American judge to serve on the Missouri Supreme Court;

the first in the 175 year history of the court. Born into segregation, I broke this

color barrier.

The high point of my professional life came in 1998 when President Clinton nominated me to the Federal District Court at the suggestion of then-Congressman William Clay. What an amazing feeling for the young man from the inner city of St.

Louis.

At that moment, I felt that I was living the American dream. If you work hard—

no matter your race, class or creed—you can succeed. This is what my parents—

and millions of hard working families throughout this great country—dream of for

their kids.

However, even though the American Bar Association gave me a unanimous ‘‘qualified’’ rating, my nomination was not confirmed. I was approved twice by this Committee, by votes of 15 to 3 and 12 to 6, but I was voted down by the United States

Senate at the urging of Senator John Ashcroft.

What happened? When I came before this Committee I was introduced by Sen.

Kit Bond, who urged my confirmation. Congressman Clay also introduced me and

reported to this Committee that Senator Ashcroft had polled my colleagues on the

Supreme Court, all of whom he had appointed when he was governor, and that they

spoke highly of me and said I would make an outstanding federal judge. After the

hearing we received additional follow-up questions from Senator Ashcroft. The other

nominees were asked 6 questions. I was asked those questions and an additional

15. I answered those questions in a full and timely manner.

And then I learned that Senator Ashcroft was opposing me. I was very surprised

to hear that he had gone to the Senate floor and called me ‘‘pro-criminal,’’ ‘‘with a

tremendous bent toward criminal activity;’’ that he told his colleagues that I was

‘‘against prosecutors and the culture in terms of maintaining order.’’

247

I deeply resent those baseless misrepresentations. In fact—and I want to say this

as clearly as I can—my record belies these accusations.

Senator Ashcroft said on the Senate floor that I had a ‘‘serious bias’’ against the

death penalty. According to my records, at the time of my hearing, I had voted to

affirm the death penalty in 41 of 59 cases that I have heard. In 10 of the remaining

18 cases I joined a unanimous court in voting to reverse. In two other reversals,

I voted with the court majority.

These are the facts: I voted with the majority of the court in 53 of 59 death penalty cases. In only 6 cases did I dissent, and in only 3 of these was I the lone dissenter.

Senator John Ashcroft has pointed to the case of State v. Johnson as the main

reason he opposed my nomination. Yet this case did not appear in any of the questions he sent to me. Senator Ashcroft never raised the Johnson case with me, never

questioned me about my opinion or asked me to explain my reasoning.

My dissenting opinion in this case urged a new trial, not a complete release. I

based my opinion on sound and settled Constitutional law as handed down by the

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). 1 never disregarded the terrible violence that had been done in this case. Senator Ashcroft’s rhetoric left the impression that I was calling for Johnson’s release. That is just not

true.

The record of this case, indeed my entire record, shows that it is not true—a

record I am now glad to have the opportunity to explain to the United States Senate. My record as a judge shows that the personal attacks made on me were not

true. I am proud of my record as a judge. I have lived up to the confidence expressed

in me by Governor Carnahan and the people of Missouri. After decades of public

service, I come before you today more committed than ever to the rule of law.

When I was 10 years old, I stood up to the bullies who made meanspirited comments and tried to drive me away. Today, I am here to stand up for my record, my

reputation as a judge, and as citizen.

Thank you for giving me the opportunity to testify today. I will be happy to take

any questions that you may have.

Chairman LEAHY. Thank you, Judge.

I think the last time I saw you was at your other appearance before the Committee, at your confirmation hearing back in May

1998. As you noted in your testimony today, Senator Ashcroft said

that he based his opposition to you on three of your decisions from

the hundreds of cases you have heard. He told the Senate that you

were pro-criminal, with a tremendous bent toward criminal activity, anti-death penalty, and against prosecutors and the culture in

terms of maintaining order, inflammatory charges, and they are

charges that have always troubled me. And I was concerned in the

2 days and hours and hours of hearings that Senator Ashcroft

never disavowed that language. He had a lot of opportunities to do

so in answers to questions by Senator Durbin and a number of others here.

In fact, I went back and reread the three cases in which he convinced his colleagues, his Republican colleagues, to vote against

you on October 5th. That was the time when they all came out of

the Republican Caucus and in a party-line vote, something I had

never seen before in a case like this, voted to not allow you to go

on the Federal bench. And I hope all Senators will read those cases

themselves or consider the two columns written by the noted conservative columnist Stuart Taylor in National Journal over the last

2 years on these decisions. And I will be inserting those and some

other items in the record.

So I thought about this. It has troubled me for really more than

a year. I still don’t understand what motivated Senator Ashcroft to

fight so hard to have your nomination defeated. I have gone over

and over the record. I have talked to him about it. I have found

something interesting. Senator Ashcroft inserted a short statement

248

in our Committee record in May 1998 in which he noted a different

reason to oppose your confirmation. He wrote, ‘‘I have been contacted by constituents who were injured by the nominee’s manipulation of legislative procedures while a member of the Missouri

General Assembly. This contributes to my decision to vote against

the nomination.’’ I wasn’t sure what he was talking about, so I went back to some

of the questions that he had submitted to you, written questions.

He asked you about a vote, and so I would ask you about that.

That vote that he asked you about was a vote on restrictive antiabortion legislation that then-Governor Ashcroft was supporting. Is

that correct?

Judge WHITE. That is correct.

Chairman LEAHY. And do you recall what happened in that incident?

Judge WHITE. Yes, Mr. Chairman. I was asked this question by

Senator Ashcroft regarding that, and here is the answer I gave.

The question was: I understand that while you served in the State

legislature, you called an unscheduled vote that resulted in the defeat of a measure designed to limit abortions. Could you please provide the details of this incident?

Here was my answer: As chairman of the House Judiciary Committee, I promised to sponsor the legislation, that I would give him

a hearing date that was convenient for a majority of the Committee

members. On the evening in question, the bill’s sponsor repeatedly

demanded that we take up his bill. I objected and stated we would

hear the bill at a later time after I had had an opportunity to notify all the Committee members. The bill’s sponsor continued to disrupt the Committee by speaking loudly without being recognized by

the Chair. This conduct persisted for at least 15 minutes.

Finally, I recognized a Committee member who made a motion

to bring up the bill. This motion was seconded and a vote was

taken, which defeated the measure by a tie vote.

This drastic action only occurred as a result of the unruly behavior of the bill’s sponsor. There was no attempt to deceive the Committee members not present by taking a vote behind their backs.

Chairman LEAHY. So the sponsor of the bill, which then-Governor Ashcroft supported, as I understand— Judge WHITE. I believe that is correct.

Chairman LEAHY. He insisted you bring it up. When you brought

it up, he lost on a tie vote. This is something that happened years

and years ago in a legislative body where people for and against

an issue have voted on it. Do you feel this contributed to Senator

Ashcroft’s efforts, as it turned out, successful efforts, to derail your

nomination to the Federal bench?

Judge WHITE. Senator, I don’t know exactly what Senator

Ashcroft’s concerns were, but it caused me a concern when I received the additional questions and he specifically asked about that

legislation in 1992. And what I said to you this morning are the

facts surrounding that.

Chairman LEAHY. Judge White, you serve on the bench with a

number of justices who were appointed by then-Governor Ashcroft.

Is that correct?

Judge WHITE. That is correct.

249

Chairman LEAHY. You have had a number of death penalty cases

that have come before the court. Do you know how often you voted

the same way, either to uphold or to remand, death penalty cases

in conjunction with those appointed by then-Governor Ashcroft?

Judge WHITE. I don’t have the specific numbers, Mr. Chairman,

but I believe that it is about 75 percent of the time. As the numbers indicate, there were 41 of 56 or 58 cases where I voted to affirm the death penalty.

Chairman LEAHY. Would it surprise you if I told you that a survey done independently finds that you voted with the Ashcroft appointees 95 percent of the time?

Judge WHITE. Well, not really, because there is not that much

variation on those death penalty cases.

Chairman LEAHY. So if you are so completely out of step, they

have got to be a bit out of step, too. That is my point. And the fact

is on the case we keep hearing about, this gruesome murder case,

is it not a fact that you were not trying to release the person

charge with murder, you were just trying to make sure he got a

fair trial. Is that correct?

Judge WHITE. That is correct. What I was trying to do was to

make sure that the defendant had competent counsel before there

was any talk of punishment. And in that case, I urged him—I

urged a new trial so that he could get competent counsel.

Chairman LEAHY. And in your experience, is there any question

that in a case like that, if he was found guilty, a jury would in all

likelihood recommend the death penalty and that death penalty

would be upheld.

Judge WHITE. I believe so.

Chairman LEAHY. Thank you.

Senator HATCH. Justice White, welcome to the Committee. We

are happy to have you back before the Committee.

Judge WHITE. Thank you, Senator.

Senator HATCH. I have a lot of respect for what you went

through in your life and how you came up the hard way. Having

worked as a former janitor myself, I understand a little bit about

that. But let me tell you, I have a lot of respect for you personally.

Senator FEINSTEIN. We can’t hear.

Chairman LEAHY. They can’t hear you, Orrin.

Senator HATCH. I think they can. I will just do my best.

I just have two questions—

Chairman LEAHY. Senator Feinstein can’t hear you.

Senator HATCH. Oh, you can’t hear?

Senator FEINSTEIN. It is hard to hear back here.

Chairman LEAHY. I don’t know if we are having trouble with the

sound system.

Senator HATCH. I don’t know how to make it work any better,

but—

Chairman LEAHY. Boost it up a bit.

Senator HATCH. I just have two questions that maybe I ought to

clear up. To your knowledge, did Senator Ashcroft ever actually

state that you were calling for Mr. Johnson’s release, this fellow

who had killed four people?

Judge WHITE. To my knowledge, he did not.

250

Senator HATCH. OK. Now, I know that ten lawyers can look at

a statute and have ten different opinions and interpret the law in

different ways, and that is even true with two-letter words. We can

always get into fights among lawyers. But when you said, referring

to your dissent in Johnson, that ‘‘I based my opinion on sound and

settled constitutional laws handed down by the Supreme Court in

Strickland v. Washington,’’ is it not true that you were the only justice on your court who came to that conclusion in that particularly

heinous case, and all other justices, whether appointed by a Republican or a Democrat, disagreed with your interpretation of the Supreme Court settled law?

Judge WHITE. I was the only judge who came to that conclusion,

but all of the judges agreed that the defendant had incompetent

counsel. Yet those judges in the majority didn’t get to the prejudice

part, where I did. And my separation from them was I believed

that I was following the probable result standard set out in Strickland v. Washington versus the outcome determinative result that

they were following.

Senator HATCH. I understand. Those are the only questions I

want to ask you, and, again, I am happy to have you before the

Committee, and I want you treated fairly, as always.

Judge WHITE. Thank you, Senator.

Chairman LEAHY. Senator Kennedy?

Senator KENNEDY. Justice White, welcome, and I want to thank

you very much for agreeing to appear before the Committee. I

know it is not easy to continue to relive this long ordeal.

Let me ask you, did Senator Ashcroft ever raise these issues with

you prior to the vote in 1999?

Judge WHITE. No, he did not, Senator.

Senator KENNEDY. Did he ever give you the opportunity which

you have here today to be able to explain these positions or to discuss these positions prior to the time of the vote? Did he ever call

you in and let you know what his problems were and ask you for

an explanation, give you a reasonable opportunity to answer these

kinds of charges that he made against you on the Senate floor?

Judge WHITE. Senator Kennedy, the only question that he gave

me an opportunity to respond to was the question about the antichoice bill in 1992. I never had an opportunity to discuss the Johnson case.

Senator KENNEDY. Do you have any idea why Senator Ashcroft

would make these charges about your judicial record that were inaccurate? Do you believe you know the reasons why he opposed

your candidacy so vociferously?

Judge WHITE. Senator Kennedy, I don’t know exactly what his

reasons were, and I am just trying to lay out the facts and circumstances surrounding the rejection of my nomination as I believe

them to be. I don’t know what is in his mind or what is in his

heart. So I wouldn’t want to speculate on that.

Senator KENNEDY. Could you just make a brief comment on these

kinds of accusations about being pro-criminal, against prosecutors,

against maintaining law and order? What is your own view? What

is your own attitude? That is an open-ended question, but maybe

you could respond and be reasonably brief.

251

Judge WHITE. I believe that Senator John Ashcroft seriously distorted my record. But I believe that the question for the Senate is

whether these misrepresentations are consistent with fair play and

justice that you all would require of the U.S. Attorney General.

And that would be my position on that.

Senator KENNEDY. Well, I would like to make just a couple more

points. We hear a lot of talk these days about what is being called

the politics of personal destruction. But what happened to you is

ten times worse than anything that has happened to Senator

Ashcroft in the current controversy. In my view, what happened to

you is the ugliest thing that has happened to any nominee in all

my years in the U.S. Senate.

Your record in the Missouri Supreme Court was grossly distorted

by Senator Ashcroft. He tried to use your record on death penalty

cases to help win his hotly contested Senate seat in Missouri

against Governor Carnahan. And most of us have rarely witnessed

so much instant genuine public outrage over what happened so unfairly to you.

So it has taken considerable courage for you to come here today,

Judge White. I am pleased that you are here because you have

helped to put a very personal and very human face on a very serious injustice.

Mr. Chairman, I have no further questions.

Judge WHITE. Thank you, Senator.

Chairman LEAHY. Thank you very much.

The senior Senator from Pennsylvania.

Senator SPECTER. Is it appropriate to call you ‘‘judge’’ or ‘‘justice’’?

Judge WHITE. It is ‘‘judge,’’ Senator.

Senator SPECTER. ‘‘Judge’’?

Judge WHITE. But I will answer by either one.

Senator SPECTER. In Pennsylvania Supreme Court, those are

called ‘‘justices,’’ and in the lower courts, they are called ‘‘judge.’’ But they call you ‘‘judge’’?

Judge WHITE. They call us ‘‘judge.’’ It sounds a lot more important when you say ‘‘justice,’’ but in Missouri we are ‘‘judges’’ and

the chief judge is ‘‘justice.’’ Senator SPECTER. OK, Judge White. Thank you for coming here

today, and I think it is useful and appropriate that you have had

a chance to state your position. The question which we are focusing

on here—and I think you put it well when you said whether it is

consistent with fair play and justice in evaluating Senator

Ashcroft’s qualifications to be Attorney General of the United

States.

I think at the outset it ought to be noted publicly that the Senate

does not deliberate a great deal on United States district court

judges. That is an unhappy fact of life because of our workload.

And the same applies to the courts of appeals. And these are very,

very important positions. When there is a nomination for the Supreme Court of the United States, there is a lot of attention. You

sort of sometimes judge the attention by the number of television

cameras which show up. And as you probably noted from your own

hearing, there were very few Senators present. Customarily there

is the presiding Senator and sometimes not even a ranking memVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00265 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
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ber of the other side. So that unless there is some extraordinary

incident, the Senate does not pay as much attention to the specifics

on this confirmation process as it should.

And what happened in your case was that the matter came to

a head, candidly, at the very last minute and really in sort of surprising circumstances. So I think in a sense the Senate owes you

an apology for not having more of a focus. And perhaps in a situation where we are to reject a nominee, there ought to be special attention. It is OK to pass a nominee without a great deal of fanfare.

And there are checks. There is an FBI check and an American Bar

Association check, and the staff of the Judiciary Committee makes

a check. So that I don’t want to leave the impression that it is a

casual matter to be confirmed, but I do think it ought to be stated

expressly and understood that Senators do not participate as much

as perhaps we should because of the workload. The question which

I come to, Judge White, is whether Senator Ashcroft did anything

but exercise his own judgment in the decision he made as to your

nomination.

I had a very heated controversy with Senator Ashcroft on a

Philadelphia State court judge, Judge Federica Mesiah Jackson,

who would have been the first African-American woman to be appointed to the United States District Court for the Eastern District

of Pennsylvania, and I studied her record carefully and knew her

to some extent and thought she was qualified for the position, and

Senator Ashcroft and others on this Committee thought she was

not. We had some very heated hearings on her sentencing policies,

and I had a very sharp disagreement with Senator Hatch who presided at the hearings because she had gone through 50 cases and

answered questions and then came in and was confronted with 30

more cases, and I didn’t like the process and I complained about

it. It didn’t do me any good, but I complained about it. But at the

end of that event, I did not question Senator Ashcroft’s motives. He

thought she was not qualified. I thought she was. I thought he was

wrong, and she eventually withdrew.

The story has a somewhat happy ending. She is now the president judge of the Common Pleas Court of Philadelphia, a very distinguished position, perhaps more distinguished than being a Federal district court judge.

So the question that I have for you, Judge White, is, do you think

that Senator Ashcroft was doing anything other than expressing

his own honesty?

Judge WHITE. Senator, I think he can express his own honest

views, but to call me pro-criminal and with a criminal bent and if

you look at the record, the record don’t support those views.

Senator SPECTER. Well, I would be inclined to agree that characterizations are not helpful and they are hurtful, and we have had

a little sparring with Senator Ashcroft on a number of the things

he said.

He said people in the middle of the road are either moderates or

dead skunks.

OK on time?

Chairman LEAHY. You are out of time, but go ahead and finish

your thought.

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Senator SPECTER. OK. Well, I saw the red light on, but I want

to pursue this a bit.

So let’s move ahead that his language was intemperate. Do you

think that is a disqualification for being Attorney General of the

United States?

Judge WHITE. I don’t know what a disqualification would be,

Senator. All I am stating to you are the facts, and the fact is that

Senator John Ashcroft seriously distorted my record. I believe the

question is for the Senate to answer.

Senator SPECTER. Well— Chairman LEAHY. Senator, we will go back with another round.

Senator SPECTER. Let me just ask one more question at this

time.

Chairman LEAHY. I will give extra time for that one, but then

the Senator from California will also have extra time.

Senator SPECTER. Senator Bond concurred with Senator Ashcroft.

Do you have any reason to question—in opposing your nomination

and opposing it forcefully, do you have any reason to question Senator Bond’s sincerity on his own judgment?

Well, what I am looking for Judge White is, is the sincerity of

John Ashcroft and Kit Bond—they may be wrong, they may be intemperate, but looking at Ashcroft’s qualifications, I raise the issue

as to whether you think they were less than honest or less than

sincere, and I throw Senator Bond into the mix. What do you

think?

Judge WHITE. I think the facts of my situation show that Senator

Bond came before this Committee and spoke very highly of me.

What happened between the time I was presented to the Committee by Senator Bond and the vote was taken, I don’t know.

Senator SPECTER. Thank you. Thank you.

Chairman LEAHY. The Senator from California.

I tried to make sure that the Senator from Pennsylvania had

extra time, and he did, but I am going to have to urge Senators

to try to keep to the time limit. Both Senator Hatch and I kept actually under our time, and I say that because I know a number of

Senators are on other confirmation hearings, as I am and several

others are, today, and they are trying to balance their time back

and forth. So, in fairness to all Senators, we will try to keep very

close to the clock. However, the Senator from California, because

of the balance on here, could have a little bit of extra time.

Go ahead.

Senator FEINSTEIN. Thank you very much, Mr. Chairman.

Judge White, good morning.

Judge WHITE. Good morning.

Senator FEINSTEIN. I would just like to extend to you my personal apology for what happened to you. I have been on this Committee for 8 years. I have never seen it happen before.

I want you to know that many of us, particularly on our side of

the aisle, were totally blind-sided by what happened. It came without warning. The letter from the National Sheriffs’ Association was

distributed on the floor directly with no prior notice to this Committee or members of this Committee, and I, for one, don’t feel it

is necessary for anyone to go through that kind of personal humiliation.

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You have had a good positive career, and there was no reason for

this to happen to you. I just want you to have my personal apology

for what did happen.

Judge WHITE. Thank you, Senator.

Senator FEINSTEIN. During the floor statement on your nomination, Senator Ashcroft said the following, and I quote from the

record, ‘‘Judge White has been more liberal on the death penalty

during his tenure than any other judge in the Missouri Supreme

Court. He has dissented in death penalty cases more than any

other judge during his tenure. He has written or joined in three

times as many dissents in death penalty cases, and apparently it

is unimportant how gruesome or egregious the facts or how clear

the evidence of guilt,’’ end quote.

Is this a fair representation of your record? For example, have

you written or joined in three time as many dissents in death penalty cases as any other Missouri Supreme Court justice?

Judge WHITE. Senator, I don’t have the numbers in front of me,

but I don’t believe that that’s correct.

Senator FEINSTEIN. Well, I do have the numbers. Let me just

find them here. I have the percentages.

I think a review of the record shows that you supported death

penalty convictions slightly more than the average Missouri Supreme Court justice. You voted over 70 percent of the time to uphold death sentences, and I believe you wrote several majority

opinions enforcing a death penalty verdict.

The percentage of votes for a reversal of a death sentence by Missouri Supreme Court justices were: Thomas—and I recognize he is

deceased-47 percent; White, 29 percent; Holstein, 25 percent; Price,

24 percent; Benton, 24 percent; and Limbaugh, 22 percent. Would

you concur with those figures?

Judge WHITE. Again, Senator, I don’t know the numbers, and

some of the members of the court have been there a little bit longer

than me. So the numbers may be skewed a bit, but I would say

this. When judging a case, I try to look at the facts of the case and

the standard of law that we must apply, and I try not to run

around with a scorecard to determine how many times I am on this

side or that side. And in every case that comes before me for a determination, I give my best on that case, and if the numbers show

that, then that’s what the numbers show.

Senator FEINSTEIN. Let me speak about the Kinder case for a

moment. In the floor statement on October the 5th, Senator

Ashcroft said the following, ‘‘Ronnie White wrote a dissent saying

that Missouri v. Kinder was contaminated by a racial bias of the

trial judge because that trial judge had indicated that he opposed

affirmative action and had switched parties based on that.’’ Would

you describe that as a fair reading of your dissent in Kinder?

Judge WHITE. No, it’s not, Senator, but to get an understanding

of my dissent, I think it is proper to read the statement that the

trial judge made, and if I may?

Senator FEINSTEIN. Please do.

Judge WHITE. In a pertinent part, the judge said, ‘‘The truth is

that I have noticed in recent years that the Democratic Party

places too much emphasis on representing minorities such as homosexuals, people who don’t want to work, and people with a skin

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that is any color other but white. While minorities needed to be

represented, of course, I believe the time has come for us to place

much more emphasis and concern on the hard-working taxpayers

in this country,’’ and what I said or noted in the opinion was that

conduct suggesting racial bias undermines the credibility of the judicial system and opens the integrity of the judicial system to question and I stand by that opinion today.

Senator FEINSTEIN. I believe my time is up. Thank you, Mr.

Chairman.

Chairman LEAHY. The Senator from Arizona, Senator Kyl.

Senator KYL. Thank you, Mr. Chairman.

I was prepared to refer to you as ‘‘Justice White.’’ That is the

way it is done in my State as well, but, Judge White, it is a pleasure to have you here today.

Judge WHITE. Thank you, Senator.

Senator KYL. First of all, I commend you for the success that you

have achieved, especially given the humble background that you

spoke of. You can rightly be proud of your appointment to the Missouri Supreme Court. I think it says something both about you,

and would you also agree about the man who appointed you, the

late Governor Mel Carnahan?

Judge WHITE. Thank you, Senator.

Senator KYL. Would it not also say anything about the Governor

who appointed the first African-American to the Missouri Court of

Appeals?

Judge WHITE. Possible, yes.

Senator KYL. And, of course, you know that is Governor John

Ashcroft, the first Governor in the history of Missouri, most of

whom, by the way, were Democrats, to appoint an African-American to a higher court in Missouri.

Let me say that I can understand why you are disappointed. I

think you have great reason to be disappointed, perhaps even bitterly so, about your defeat in the U.S. Senate, and I personally regret that the vote had to be taken. No one enjoys voting against

someone, especially someone who I am sure is trying his or her

best to do the best job they can in their office, and I am sure that

is precisely what motivates you.

I did want to clear up just one thing. Senator Leahy said something about the opposition coming out of the Republican caucus,

and, of course, Republicans did vote against your nomination.

We ordinarily don’t discuss what is said within our caucuses, our

policy luncheons, but let me just allude to this one occasion. We

usually devote a couple of minutes to business that is going to be

coming up in the afternoon or the next day or two, and John

Ashcroft rose and made very brief remarks. They were subdued. He

said, ‘‘I am not asking any of you to follow my lead, but since one

of the votes is going to be on a Missouri judge, I felt I should at

least explain to you why I will be voting no, so as not to blind-side

any of you,’’ and he spoke very briefly, primarily focussing on the

impact of many law enforcement people in the State of Missouri

who based their opposition on what some of them suggested were

decisions that suggested that you were soft on crime. That is an appellation, by the way, that I don’t think should be used.

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No one ever mentioned your race. In fact, I know that many of

my colleagues when they voted were not aware of your race until

after the vote.

I just want to conclude by saying I think your record can be fairly debated. I am very troubled by some of the things that you have

written, but I assure you that I do not believe that you ever intended to misapply the law and I believe that is Senator Ashcroft’s

belief as well.

Judge WHITE. Thank you.

Chairman LEAHY. I understand the Senator from Wisconsin does

not have questions.

Then we will go to the senior Senator from New York.

Senator SCHUMER. Thank you, Mr. Chairman, and thank you,

Judge White.

You are obviously a soft-spoken man, a man of judicious temperament. You can see by your statement and the way you offered

it. You are not trying to make points here. You are just telling

what happened. You don’t even really seem like a politician.

So I would like to just ask you how you felt when for the first

time you heard that your nomination was being called into question because you were called soft on crime, pro-criminal.

Judge WHITE. I was obviously disappointed and upset about the

labeling and the name-calling, but what troubled me the most was

the lack of opportunity to come in and at least talk with the Senators about my record and about the cases that were called into

question and have the kind of discussion that we are having here

this morning where I would be given a chance to speak and you

would be given a chance to ask me questions. That was the most

troubling aspect of that.

Senator SCHUMER. During your career in Missouri, had that been

a common charge used against you when you ran for judge, when

you ran for other offices in Missouri?

Judge WHITE. No, Senator, that was not. I had never heard the

term ‘‘pro-criminal,’’ ‘‘criminal bent,’’ until I heard them on the

floor of the Senate on August of—on October 4, 1999.

Senator SCHUMER. Let me ask you to comment on something I

feel very strongly about here. I don’t believe Senator Ashcroft is a

racist, and he has appointed African-American judges and things

like that, but I do feel this. I feel that given America’s long and

tortured history in terms of race relations that we have to be ever

so careful about applying a double standard, a double standard

which has been—well, it was the signature of Jim Crow and everything that has happened since the days of slavery—it is OK for

whites to be treated one way, but blacks are treated a different

way, and I don’t think this is a philosophical issue. I think every

person at this table from the most conservative to the most liberal

would agree that America must fight hard to avoid a double standard.

What I find so troubling about your nomination is not that someone would call you soft on crime whether it is true or not. That is

a legitimate issue to debate when we debate judges, and my views

on criminal justice are decidedly moderate, but rather that a different standard might be used in your nomination than for others

who were not of your race. If you look at the number of judges that

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Senator Ashcroft supported who at least when you talk to some of

the people who prepared the documentation for all those judges

were clearly more liberal on criminal justice and other issues than

you, but who were white, and then were voted for without any raising of any questions, it is extremely troubling. To me, it show real

insensitivity to our long and tortured history of racial relations.

Would you care to comment on that thought? Am I off base here?

Do you think it applied to you? Tell me what you think.

Judge WHITE. Senator, first let me say I don’t think Senator

Ashcroft is a racist, and I wouldn’t attempt to comment on what

is in his mind or what is in his heart, but the answer I would give

to your question is this. There was a lot of outrage about my nomination being rejected, and particularly in the African-American

community, and the reason for that outrage, I believe, is that when

you have an African-American judge, African-Americans see that

as one more step toward true equality.

So, when that judge rules, whatever way it is, there shouldn’t be

any hint of racism or any underhanded dealing because there is a

sense that that person gives it their best. So that would be my explanation for the outrage behind my rejection.

Senator SCHUMER. Do you think there was a feeling that a double standard was used in opposing your nomination?

Judge WHITE. Yes.

Senator SCHUMER. One final question because this whole episode

is terribly difficult, I think, for so many of us on both sides of the

aisle here. Over the past few days, Senator Ashcroft has spoken at

length about his concern for civil rights and his sensitivity to issues

of race. Does anything he has said in the last few days here at this

hearing give you reassurance?

Judge WHITE. Senator, I have not really watched his—his testimony, but I would just say to you again, I do believe he seriously

distorted my record and I am here this morning to attempt to try

to set that record straight.

Senator SCHUMER. Thank you, Mr. Chairman.

Chairman LEAHY. Thank you.

The senior Senator from Ohio, Senator DeWine.

Senator DEWINE. Mr. Chairman, thank you very much.

Judge White, thank you very much for coming in. We very much

appreciate your testimony, and, Mr. Chairman, I do not have any

questions.

Judge WHITE. Thank you, Senator.

Chairman LEAHY. Thank you.

Let’s see. The Senator from Wisconsin, Senator Feingold, was at

another hearing, I believe, and he is now here. We will turn to the

Senator from Wisconsin.

Senator FEINGOLD. Mr. Chairman, let me just apologize to the

witness. I had to introduce the Governor of the State of Wisconsin

to the Finance Committee, as did Senator Kohl, and I recognize the

tremendous importance of your testimony which I will read and

then perhaps ask questions later.

Chairman LEAHY. Thank you.

I have noted for the record that a number of Senators, both Republicans and Democrats, are at a series of confirmation hearings.

That is why they are not here.

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We would then go to the senior Senator from Illinois, Senator

Durbin.

Senator DURBIN. Thank you very much, Mr. Chairman, and,

Judge White, thank you for joining us.

I only wish that every member of the Senate could hear your testimony. I only wish that they could hear your life story, even those

who voted against you, and reflect on the decision that they made.

I hope that they would ask themselves whether the person that

they would be listening to is the same person that was described

by John Ashcroft on the floor of the U.S. Senate.

We have been asked by President-elect Bush to look into the

hearts of his nominees, and during the last 2 days, we have entered the testimony of Senator John Ashcroft about what is really

in his heart.

Over and over again, Senator Ashcroft told us that as Attorney

General, he would be results-oriented. He would not be results-oriented. He would be law-oriented. In your case, he was clearly results-oriented and not law-oriented because, had he looked at the

law and how you applied it, he never would have said the words

he did about you on the floor of the U.S. Senate.

I live in Illinois, a neighbor of Missouri, and those of us who followed the Senatorial race know what was going on there in this situation. There was a result that Senator Ashcroft was seeking. He

was trying to create a death penalty issue in the Missouri Senatorial campaign. Why? Because the late Governor Mel Carnahan had

spared a man in death row after a personal appeal by the Pope

when he had visited St. Louis, and you, Judge White, were the victim of this political calculation. Your hard work through a lifetime,

your good name, and your reputation were cast aside after the political calculation was made.

That, to me, is a reflection on the heart of the man who wants

to be our Attorney General. This position in the Cabinet, more than

any other, is entrusted with the testimony of protecting the civil

rights of Americans. We count on the law not only being there, but

people who will implement and enforce the law with a good heart.

We have a President who will be sworn in, in a few hours, who

has pledged to unite us and not divide us, and as we listen to your

testimony and as Senator after Senator apologizes for what happened to you and your good name, is there any doubt that what

happened was divisive, divisive for you and your family and for

America?

Yesterday, when I asked Senator Ashcroft about this, he said,

well, the law enforcement organizations were against Ronnie

White, soft on crime, not strong on the death penalty. Judge White,

when it came to the support of law enforcement organizations for

your appointment to the Federal district court, what is the record?

Judge WHITE. That is not true that I was opposed to law enforcement.

Senator DURBIN, I have a brother-in-law who is a police officer

in St. Louis. I have a cousin who is a police officer in St. Louis.

I have served on boards and commissions with police officers in the

St. Louis community, and I also, when I was city counselor for the

city of St. Louis, was the lawyer for the St. Louis City Police Department and we defended police officers. As a judge, all I have

259

tried to do is to apply the law as best I could and the way I saw

it.

Senator DURBIN. Judge White, I have noted with interest during

the course of this hearing that even though the grizzly details of

the Johnson case and the Kinder case were brought out yesterday,

nobody has mentioned them while you are sitting here. No one

from the other side has brought them up. Those are grizzly details

in the Johnson case, and I want you to explain why you dissented

in that case.

This man brutally murdered—apparently murdered four or five

people, including a sheriff in execution style, and you dissented in

the question of whether or not the death penalty should have been

imposed. Please explain.

Judge WHITE. The details in any murder case are grizzly. Death

in a normal consequence is really bad, but the cornerstone of our

criminal justice system is a right to a fair trial, and all I was trying

to get to in the Johnson case was the lawyers’ ineffective assistance

to the defendant possibly affected the jury’s determination in guilt

and sentencing.

I did not say that these facts were not awful. I did not say that

family didn’t suffer. All I was trying to do was to ensure that Johnson had a fair trial, and in my mind, the only way you can have

that is to have competent counsel and then I think the consequences will flow from there.

Senator DURBIN. Did you call for his release in your dissent?

Judge WHITE. No, I did not. I just urged a retrial, but I think

that impression was created that since I voted to reverse in the

case that Johnson would be released, and if I might say further,

when we rule on a death case in Missouri, that case goes to the

Federal court system for a review. And in writing my dissenting

opinion, I was writing to the next level of review to say, look, there

is a difference of opinion on my court about how to apply the standard in Strickland v. Washington, help us, tell us who is right, am

I right or are they right, and that was all I was trying to get to.

Senator DURBIN. Let me close by saying this. I am very sorry for

what Senator Ashcroft did to you and your reputation, and I join

with my colleagues in apologizing for what happened to you before

the U.S. Senate.

Judge WHITE. Thank you, Senator.

Senator DURBIN. Thank you.

Chairman LEAHY. The Senator from Alabama, Senator Sessions.

Senator SESSIONS. Thank you, Mr. Chairman, and, Judge White,

we are glad to have you here. I think it is good for this Committee

to allow you to share your thoughts and concerns about the way

the process was for you.

I agree with you that this gaggle of blowhards sitting in this Senate are not particularly good at making their decisions. I have seen

a lot of decisions come out of this Committee that I haven’t been

happy with, but it is a system and they do vote and that is it and

we have to live with it, and you are blessed, I think, with the ability to remain as the Justice of the Supreme Court of Missouri, a

great and august position. I hope that you will enjoy it, and I hope

that you would not succumb to, as some suggested, bitterness or ill

feelings. You look like you are not.

260

Judge WHITE. No, Senator Sessions, I am not bitter at all.

Senator SESSIONS. You have got a great career. You have had a

good career, and we validate that.

I have been a prosecutor for 15-plus years. I feel strongly about

those issues. John Ashcroft was Attorney General for quite a number of years. John was Attorney General and I was a prosecutor

during the time this country began to refigure what we were doing

about criminal justice.

It seemed more and more that the law schools were teaching that

this was almost like a game. A judge was sort of like an umpire

or a referee, and he threw the flag for minor or insignificant offenses by the police calling for retrial so defendants could be released.

There is some intellectual support still alive today for that. People still believe in that, that we are insufficiently protective today

since we have changed. I don’t. I believe firmly that we need to

focus on guilt and innocence, and we ought not to be so focussed

on errors that had little or no impact on the outcome of the trial,

and for a lot of reasons, I think that was—and I have looked at a

number of your opinions, and I think your views may be consistent

with quite a body of intellectual and liberal thought on crime in

America. It is not what I would want.

John Ashcroft voted for 26 of 27 judges that were African-American that President Clinton put up. His problem was you were his

judge, and his sheriffs, 77 of them, had opposed you. A chiefs of police association opposed you, prosecutors.

I feel an obligation. Implicit in my election was that I would

watch to make sure that the Federal judges that are appointed

were going to be fair to the police officers and sheriffs and prosecutors I served with. Do you think you could understand John’s approach that may have been a factor in his thinking?

Judge WHITE. I can understand his approach, but I can’t understand his distortion of my record.

Senator SESSIONS. Well, you know, it is a difference of opinion.

Like in the Kinder case that was alleged here, this judge made

some insensitive, maybe at best, remarks. Perhaps this judge may

have even been subject to censure. Was he ever censured to your

knowledge, subject to censure?

Judge WHITE. No, he was not censured.

Senator SESSIONS. But what troubled me was you reversed his

decision in saying that actual fairness of the trial was not sufficient, that even though there was no showing that he made a single error that biased against the defendant, you voted to reverse

his case. That troubled me.

Would you like to comment on that?

Judge WHITE. Yes, Senator, because in my mind his comments

created a sense of judicial bias from the outset. When he made

these statements about 5 or 6 days before trial, then he goes into

court and says I can be a fair and impartial judge, and I will say

to you, as you know, a judge is a judge all the time, and you don’t

stop being a judge in once instance and being a judge in the next.

Senator SESSIONS. Well, I would disagree. I believe that if the

judge conducted a fair trial, there was not one hint that he did anything to bias that case, the case should not be reversed.

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I was aware of some of the programs that were set up. They were

set up, put up a sign, ‘‘Drug dealers going to be stopped ahead,’’

and what they found was drug dealers would stop and make Uturns in the street and things like that and police would stop them,

and they wouldn’t just search their car based on that. They would

make inquiries and sometimes ask the occupant of the car if they

could search the car.

You dissented, I believe, that procedure was unfair because the

highway traveller would be tricked. That troubled me.

Well, I see my time is up. I will not get into the Johnson case

except to say those were, would you not agree, some skilled attorneys that were defending him? Those were retained attorneys with

Mr. Eng who had 10 years, was a leader in the criminal-–10 years

of practice, teachers criminal law. Another lawyer, Mr. Bly, was an

active litigator with having won awards and done some teaching.

It was a pretty good group of retained attorneys, was it not?

Judge WHITE. Well, one of the lawyers was basically a solo lawyer, and I think that the public defenders in Missouri have substantial experience, probably more experience than private attorneys in handling death penalty cases because they handle many

more.

Senator SESSIONS. Well, Mr. Eng teaches criminal practice skill

courses for the Criminal Law Section of the Missouri Bar Association. He received an award from the Criminal Defense Bar, the

Host Award from the Missouri Association of Criminal Defense

Lawyers. He was a member of the Association of Criminal Defense

Lawyers for 14 years, sat on the board of directors, internally

served as vice president of the Missouri Association of Criminal Defense Lawyers. This was a quality civil attorney. He was a good

partner, I would suggest, plus a third attorney, Christine Carpenter, who apparently has good skills.

Chairman LEAHY. Could I—

Senator SESSIONS. I don’t think they were—

Judge WHITE. And that is why these errors don’t make any

sense. I mean, you had all that skill and record there when all he

had to do was pick up the phone, contact the witnesses, and try

to figure it out.

Senator SESSIONS. My view was they just simply put on a defense that was proven unfounded, and the jury found—

Chairman LEAHY. I don’t mean to—we have gone considerably

over time, and I am trying, again, at the request of Senators on

both sides—I have been trying to keep on time.

The Senator from Wisconsin, Senator Feingold.

Senator FEINGOLD. Thank you very much, Mr. Chairman.

Justice White, again, thanks for being here. I now have had an

opportunity to read your statement. I am told by my colleagues

that hearing it is even more moving than certainly simply reading

it is, and I want to join Senator Durbin in the apology.

Judge WHITE. Thank you.

Senator FEINGOLD. The rejection of your nomination was unjustified, and I particularly regret that it was an entirely partisan vote.

I think we were all shocked, and the more I, of course, read about

some of the facts, it is a regrettable moment in the Senate, and at

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a minimum, I am glad that you have an opportunity here to get

the record straight on some of these points.

In fact, just as a brief response to Senator Sessions’ characterization of the comments of the trial judge in the Kinder case, the notion that these remarks here are insensitive at best is something

I would take issue with. A direct contrasting of minorities with the

hardworking taxpayers in this country to me is beyond insensitive,

and I simply wish to make on the record the remark I think that

these were shocking remarks for a trial judge to make.

Senator SESSIONS. Mr. Chairman, may I correct myself?

Chairman LEAHY. Yes.

Senator SESSIONS. I think insensitive—I meant to say insensitive

at worst. They were very bad comments that—

Senator FEINGOLD. Excuse me. I should have said—I stand corrected.

Senator SESSIONS.—Were subject to possible censure, and I did

misspeak.

Senator FEINGOLD. You said they were insensitive at worst. I

think they go—

Senator SESSIONS. I didn’t say that, and I apologize—

Senator FEINGOLD. I think they go well beyond that.

Senator SESSIONS.—For being inaccurate.

Senator FEINGOLD. Mr. Chairman?

Chairman LEAHY. Yes.

Senator FEINGOLD. My apology for getting that wrong.

I find it hard to imagine these words simply being called insensitive at worst. The hardworking people of Wisconsin found them to

be far beyond insensitive.

Mr. Chairman, one item that I assume you would like to set the

record straight on is that in opposing your nomination to the Federal bench, Senator Ashcroft was highly critical of your dissent in

a case called State v. DeMass. This was a Fourth Amendment case

that the Missouri Supreme Court decided in 1996, and you authored the dissenting opinion. The case addressed the constitutionality of drug interdiction checkpoints in two Missouri counties.

Police officers dressed in camouflage were stopping motorists in the

dark of the night at the end of a lonely exit ramp and looking for

evidence to allow them to search the vehicles for drugs.

The majority of the Missouri Supreme Court decided that these

stops were constitutional, but you dissented. You agreed with you

and your colleagues that trafficking in illegal drugs is a national

problem of the most severe kind, and you agreed that traffic stops

such as these could be conducted in a reasonable way, but you

found that these particular checkpoint operations were not conducted in a reasonable way and were, therefore, unconstitutional.

Then, just a few months ago, a case with facts very similar to

the Missouri case made its way to the United States Supreme

Court. In the City of Indianapolis v. Edmond, the U.S. Supreme

Court found that drug interdiction checkpoints like the ones that

were upheld by the Missouri Supreme Court are unconstitutional.

The Edmond case makes clear that the police may not set up roadblocks in the hope of interdicting drugs or detecting some other

criminal wrongdoing.

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In fact, the United States went even farther in protecting the

rights of motorists than you were prepared to go in your dissent,

but I don’t think anybody really considers the Rehnquist court to

be pro-criminal.

In light of the recent U.S. Supreme Court decision, would you

agree that the majority decision in DeMass would now be considered bad law?

Judge WHITE. That is correct, Senator. In fact, I was vindicated

by the United States Supreme Court by their decision when they

said those kind of checkpoints were unconstitutional.

Senator FEINGOLD. Thank you again, and thank you, Mr. Chairman.

Chairman LEAHY. Thank you, Senator Feingold.

The Senator from Kansas, Senator Brownback.

Senator BROWNBACK. Thank you, Mr. Chairman, and welcome,

Justice White. We are delighted to have you here at the Committee.

I heard your opening statement. I was watching it, and it was

very powerful, a real success story of pulling yourself up by the

bootstraps in very difficult circumstances and conditions, and I applaud that. I applaud what you have attained and what you are

doing and what you continue to do. I appreciate as well your willingness to come here and testify in a difficult circumstance and

condition that we have got as we are trying to review and to look

at one of the former members of our body making a move from a

legislative branch to an executive branch position from one that

makes decisions voting on judges to one on enforcing the law, and

there are different qualifications and criteria that people look at in

those sorts of shifts.

John Ashcroft was in your State and was Attorney General for

two terms in your State. There are no allegations that he didn’t enforce the law and bring it forth with equal justice, head of the Attorneys General Association, National Attorneys General Association in enforcing the law. So, while there are points, I think, that

have been validly made, I think we are looking at now what would

a person do in enforcing the law and would they do that equally

and fairly.

While I think you raised legitimate points about your confirmation, there were also concerns that were being raised at that time

about support for you from the law enforcement community, or lack

of support, really, thereof. Here is a key area where the law enforcement community needed to have comfort as well in your abilities as a judge in that particular condition.

So I appreciate very much your background of words and the information you bring in front of us. There were challenges, legitimate ones, I think at that time, ones that can be questioned, but

when you look at a lifetime appointment to the bench, you really

weigh those carefully and look at them cautiously when considering

that lifetime appointment, and I have no doubt that you are going

to continue in a great role in public service, and the difficult circumstances. After today, we will all move on forward, and you will

serve well and serve with distinction. But those questions being

raised at that time on a lifetime appointment, I think, caused a

number of people pause.

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Thank you for being here today.

Mr. Chairman, I have no questions.

Chairman LEAHY. Thank you, Senator.

I will put into the record an editorial in the St. Louis Post Dispatch in which they quote Charles Blackmark, a retired Supreme

Court judge who called Senator Ashcroft’s attack on Judge White ‘‘tampering with the judiciary.’’ I will put in the record from the National Journal an article by

Stuart Taylor in which he says that Senator Ashcroft smeared

Judge Ronnie White for his own partisan political purposes.

I will also put into the record a strong letter of endorsement from

the Chief of Police of the St. Louis Metropolitan Police Department

for Judge White, during his confirmation.

I will also put a letter in the record from the Missouri State

Lodge of the Fraternal Order of Police which indicated on behalf

of 4,500 law enforcement officers in Missouri, that they view Justice White’s record as ‘‘one of a jurist whose record on the death

penalty has been far more supportive of the rights of victims than

the rights of criminals.’’ Judge White, I listened to the Senators here. I feel, as Senator

Durbin and Senator Kennedy and so many others have said, that

this was not a question of your rulings on cases, rulings which appear to be well in the mainstream. In fact, your ruling in one case

presupposed or predated a similar ruling made by the conservative

U.S. Supreme Court, the Rehnquist court. Rather, you became a

political pawn.

Now, I disagreed with Senator Ashcroft on the floor of the Senate

when this happened. I disagreed with him in our personal meetings, and I have disagreed with him in these hearings. I won’t go

into that further, but I still disagree with him even more so, having

heard you.

You have sterling credentials. You have had a career that is exemplary by any standards and one that so many people, white or

black, would want to emulate, but I think your career was besmirched. I believe your career was besmirched not on a question

of your legal abilities because your legal abilities are golden. They

have been proven. But they were besmirched to aid Senator

Ashcroft’s political fortunes. That, sir, is wrong. I am sorry to have

seen that happen. It will be an issue in his confirmation, as will

others, but as a U.S. Senator, it disturbs me greatly.

Judge WHITE. Thank you, Senator.

Senator HATCH. If I could just add one comment myself.

Judge White, I called you ‘‘Justice White.’’ As far as I am concerned, that is good enough.

Judge WHITE. That is fine.

Senator HATCH. Both are good.

But let me just say I think you have been more gracious here toward Senator Ashcroft than some of our colleagues, and I just want

to compliment you for it— Judge WHITE. Thank you.

Senator HATCH.—And let you know that I respect you for it, and

I appreciate you being here and accept your testimony.

That is it.

Judge WHITE. Thank you, Senator Hatch.

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Chairman LEAHY. There are no further questions. The Committee will—

Senator SPECTER. Mr. Chairman?

Chairman LEAHY. I’m sorry.

Senator SPECTER. Are we going to have a second round?

Chairman LEAHY. I just asked the ranking member, and he said

he did not want any more.

If there are no further questions, the Committee will stand in recess for a few minutes to allow the staff to set up the tables for

the next panel.

Thank you.

[Recess from 10:50 a.m. to 11:05 a.m.]

Chairman LEAHY. I do not want to start until the ranking member is here. So we will also use this time as a chance for the Committee room to get in order.

I should note while we are waiting for Senator Hatch to come

that I had a good discussion this morning with Congressman

Hulshof and cleared up any misunderstanding I might have had

about his letter to me, and I appreciate the letter. I don’t know if

the Congressman is here right now, but I appreciate that conversation. It was very helpful.

Now that Senator Hatch is here, we will begin. We have a large

and distinguished panel. We have Hon. Edward ‘‘Chip’’ Robertson,

a lawyer and former Justice of the Missouri Supreme Court; Ms.

Harriet Woods, whom I know, the former Lieutenant Governor of

Missouri; Jerry Hunter, a lawyer and former Labor Secretary of

Missouri; Mr. Frank Susman, a lawyer from Gallop, Johnson, and

Neuman, in St. Louis; Ms. Kate Michelman who is the president

of NARAL here in Washington; Ms. Gloria Feldt who is the president of Planned Parenthood Federation of America; Ms. Marcia

Greenberger who is the co-president of the National Women’s Law

Center, Washington, D.C.; Ms. Collene Campbell, member of Memory of Victims Everywhere, from one of the prettiest areas there is,

San Juan Capistrano, California. If I have misstated the names of

the organizations, trust me, we will get it right before the day is

over.

What I am going to do, each witness will testify. Because there

are so many, we are going to have to run the clock pretty strictly.

Your whole statement, of course, will be part of the record. In my

experience, if there is something you really want us to remember

the most, you may want to emphasize that, but I will leave it any

way you want to go.

So, Judge Robertson, we will start with you and move from my

right to the left.

STATEMENT OF EDWARD D. ROBERTSON, JR., ESQ., ATTORNEY, BARTIMUS, FRICKLETON, ROBERTSON & OBETZ,

FORMER JUSTICE OF MISSOURI SUPREME COURT

Mr. ROBERTSON. Thank you, Mr. Chairman.

Mr. Chairman and members of the Committee, my name is Edward D. Robertson, Jr. I am a partner in the law firm of Bartimus,

Frickleton, Robertson & Obetz, and we have offices in Kansas City

and Jefferson City, Missouri.

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I appear before you today to speak on behalf of John Ashcroft’s

nomination to become Attorney General of the United States.

Chairman LEAHY. Would you pull the microphone just a little bit

closer, please, Mr. Robertson?

Mr. ROBERTSON. Yes, sir.

I do so from the vantage point of one who served as the Deputy

Attorney General of Missouri from 1981 until 1985 at a time when

John Ashcroft was Attorney General.

On March 4, 1801, Thomas Jefferson addressed the people of the

United States in his first inaugural address. He acknowledged the

rancor that marked his election, but he stated every difference of

opinion is not a difference of principle.

If press accounts are accurate, it appears that some of the members of the Senate may disagree with John Ashcroft’s opinions. I

trust, however, that none of you disagrees with the principle upon

which he will found every decision he makes as Attorney General

of the United States, should you confirm him. That principle requires that the rule of law established by Congress and interpreted

by courts will prevail, must prevail, as he carries out his duties as

Attorney General.

As Attorney General of Missouri, John Ashcroft issued official

opinions, concluding, for example, that evangelical religious materials could not be distributed at public school buildings in Missouri,

and you have heard a number of those opinions discussed previously in this hearing, and I will not list them for you now.

If one believes Senator Ashcroft’s critics, each of these opinions

should have reached a different result, but they did not for one

overriding reason. Then-Attorney General Ashcroft let settled law

control the directives and advice he gave Missouri government.

Now, I do not intend to take much more of the Committee’s time

with these prepared remarks as there are so many of us, and I am

sure you have questions for all of us.

I have known John Ashcroft for nearly a quarter of a century.

If we could boil him down to one single essence, we would find a

man for whom his word is both a symbol and a revelation of his

deepest values. This means one thing to me, one thing to which

nearly a quarter of a century has failed to provide a single contrary

example. When John Ashcroft gives his word, he will do what he

says, period.

Those who are with me at this table have opinions, some of

them, that differ from Senator Ashcroft’s opinions, but they, like

the members of this Committee, of the Senate, and every American, can count on John Ashcroft’s word. When he tells you that he

will follow the settled law, he will follow the law.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Robertson follows:]

STATEMENT OF EDWARD D. ROBERTSON, JR., LAWYER, BARTIMUS, FRICKLETON, ROBERTSON & OBETZ, KANSAS CITY AND JEFFERSON CITY, MISSOURI

Mr. Chairman and members of the committee. My name is Edward D. Robertson,

Jr. I am a partner in the law firm of Bartimus, Frickleton, Robertson & Obetz with

offices in Kansas City and Jefferson City, Missouri.

I appear before you today to speak on behalf of John Ashcroft’s nomination to become Attorney General of the United States. I do so from vantage point of one who

served as the Deputy Attorney General of Missouri from 1981 until 1985, when

John Ashcroft was Attorney General.

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On March 4, 1801, Thomas Jefferson addressed the people of the United States

in his first inaugural address. Acknowledging the rancor that marked his election,

Jefferson reminded the American people that ‘‘every difference of opinion is not a

difference of principal.’’

If press accounts are accurate, it appears that some of the members of the Senate

may disagree with John Ashcroft’s opinions. I trust, however, that none of you disagrees with the principal upon which he will found every decision he makes as Attorney General of the United States. That principal requires that the rule of law

established by the Congress and interpreted by the courts will prevail, must prevail,

as he carries out his duties as Attorney General.

How do I speak so confidently? I have had the privilege of sitting with John

Ashcroft as decisions were made regarding legal policy for the state of Missouri. He

never—I repeat never—allowed his opinions about what the law ought to be to overrule what the law was as he gave direction to Missouri government.

As Attorney General of Missouri John Ashcroft issued official opinions concluding

that evangelical religious materials could not be distributed at public school buildings in Missouri; that public funds could not be used solely for the purpose of transporting pupils from parochial schools to the public school; that Missouri law prohibited public school personnel from teaching children at sectarian schools; that the

strict separation of church and state mandated by the Missouri constitution prohibited public school districts in Missouri from using federal funds available to them

under the Elementary and Secondary Education Act of 1965 to provide services to

a parochial schools; that hospital records relating to abortion procedures remain

closed.

If one believes Senator Ashcroft’s critics, each of these opinions should have

reached a different result. But they did not for one overriding reason. Then-Attorney

General Ashcroft let settled law control the directives and advice he gave Missouri

government.

I do not intend to take much more of the Committee’s time with these prepared

remarks.

I have known John Ashcroft for nearly a quarter of a century. If we could boil

John down to a single essence, we would find a man for whom his word is both a

symbol and revelation of his deepest values. This means one thing to me—one thing

to which nearly a quarter of a century has failed to provide a single contrary example—when John Ashcroft gives his word, he will do what he says. Period.

Those who are with me at this table have opinions that differ from Senator

Ashcroft’s opinions—but they, like the members of this Committee, of the Senate

and every American, can count on his word. When he says he will follow the settled

law, he will follow the law.

Chairman LEAHY. Thank you very much.

Ms. Woods?

STATEMENT OF HARRIET WOODS, FORMER LIEUTENANT

GOVERNOR OF MISSOURI, ST. LOUIS, MISSOURI

Ms. WOODS. Mr. Chairman, Senator Hatch, members of the Committee, I am here to provide information I hope will help you to decide whether to confirm John Ashcroft as Attorney General, and I

have to say, ‘‘Which John Ashcroft?’’

I have listened to these hearings and heard him say that he will

conform to Roe v. Wade, he will support mandatory trigger locks.

You understand that in Missouri, over and over, he has shown

an absolute dedication to the overturn of Roe v. Wade, campaigned

for concealed weapons. I will try to sample in my very brief remarks a number of cases where I feel that he has pushed particular agenda or ideological values rather than administer justice in

an evenhanded manner, but I also have to ask is this—in his testimony, he was proud of having set records for appointing women

and minorities. He had an abysmal record in appointing women, so

much so that he was cited for having the lowest number of executive appointments of any Governor in this country, one, and he

never reached any more in his whole term.

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He appointed exactly 10 women out of 121 judicial appointments

and didn’t appoint the first one until he was more than halfway

through his first term as a result of really heavy publicity, even on

the front page of the newspapers, condemning him in the record of

Missouri.

For the minority appointments, I am sure other people will talk

about them, but when he says he created a record, I have to point

out that the two previous Governors—one had appointed no black

judges, and the other, three. So that he set a record of eight, I really applaud, but the next administration appointed 30. So we have

to put this all in perspective.

Governors love to say, well, he could only appoint people as they

were presented by the panels. They never say that the Governors

appoint the members of the commission, at least two out of the

five, and in at least one case, Governor Ashcroft appointed a minister on the commission in Kansas City who was quoted in the

newspaper as saying he didn’t believe women belonged on the

bench. You would not be surprised that not many women applied.

So this is a lot more complicated.

You know, I respect Governor Ashcroft—Senator Ashcroft. He

has lifted his hand and said he swears to uphold the law. He swore

to uphold the law in Missouri, also.

In 1985, when both of us were sworn in, one as Governor and

one as Lieutenant Governor, the odd couple, of course—I am a

Democrat, he is a Republican—he said to me, ‘‘I could find useful

things for you to do, but in return, you will have to give up the authority to serve as the Governor in my absence when I leave the

State.’’ I was really stunned. I said, ‘‘Well, why? I certainly would

do nothing in any way to misuse that power. I want to cooperate

with you. I have every motive to cooperate with you. I can’t unilaterally give up a constitutional duty.’’ He said, ‘‘That’s not the way

I read the law,’’ and he left the State without notifying me or the

Secretary of State.

He didn’t at that time contest this in the courts. He didn’t say

let’s get this law changed. Ultimately, it was ridiculous, and the

only recourse I had was clearly to go to the press, and I said so.

Finally, they slipped a note under my door that he was leaving the

State, and we had no further problem, but he raised the same

thing with my successor, Mel Carnahan, poisoning the atmosphere

with him, ultimately did go to court. The court said his authority

did extend when he was outside the State, but the judge added he

really ought to work with the Lieutenant Governor to better serve

the people of the State.

I am sure you will hear about a 1978 case in which he chose to

under the antitrust laws to prosecute the National Organization of

Women who were conducting boycotts of the State for failing to ratify the ERA. He was turned down at the district court. He was

turned down at the appellate court. The Supreme Court rejected it.

It is very unclear to me whether the fact that he opposed the ERA

was more a motivation than whether he was really properly using

the laws of the State to uphold the law.

In 1989, very quickly, after the Webster decision, he appointed

a task force on women’s health care and children in which he

named only people who were opposed to abortion. The leaders of

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the legislature were so outraged that they said they wouldn’t participate, how could this reflect all the interests of the State, and

this was not the only case where he had done something like this.

In 1999, distinguished Republican, a former Supreme Court Justice, Charles Blackmark, who said in a footnote in a law journal

article about Senator Ashcroft’s hearings on judicial activism, ‘‘I

wrote Senator Ashcroft several times requesting information on the

hearings and offering to testify to provide a written statement. I received no reply. The witness list seemed to consist of individuals

whose views harmonized with those of the Senator.’’ The case has been cited that he followed the law in not having

Bibles distributed in the public schools. What they do not say is

that Missouri became, I think, the final State that provided no licensing for church-run day care centers, even when they very carefully amended it to say we will not interfere with what is said

there, but there has to be some minimum health and safety for

children. John Ashcroft was protecting those church-run schools

and said that to the very end.

I have obviously no more time. I hope that if there are any questions particularly about the myths about why the 2001 election— or overriding that, the racial issues in Missouri, which I think are

so important, I would be glad to respond.

[The prepared statement of Ms. Woods follows:]

STATEMENT OF HARRIETT WOODS, FORMER LIEUTENANT GOVERNOR OF MISSOURI

Many Missourians were shocked and dismayed when they learned of the nomination of Senator John Ashcroft for U. S. Attorney General. Americans elsewhere, including some former Senate colleagues, probably know him less well than we do.

They need to be informed about instances where he used public office to push particular ideological views rather than administer justice in an evenhanded manner.

They need to learn more about his temperament and values.

I observed Senator Ashcroft fairly closely as a state senator and as lieutenant governor for four of the eight years John Ashcroft served as Missouri’s governor. (We

were the ‘‘odd couple’’—a liberal Democrat and a conservative Republican.) President-Elect Bush described him as ‘‘a man of deep conviction’’ who would be dedicated to′′the impartial administration of justice.’’ He is indeed a man of deep conviction, but in Missouri, he increasingly has been seen as an extremist who can be

ruthless for political ends. Former U. S. Senator Tom Eagleton reacted to the nomination by saying: ‘‘John Danforth would have been my first choice. John Ashcroft

would have been my last choice.’’ I’m constantly asked to give any example when he administered the law differently because of ideology. In 1989, the Supreme Court decision in the case of

Webster v. Reproductive Health opened up regulation of abortion to the states. Governor Ashcroft immediately named a ‘‘Task Force for Mothers and Unborn Children’’ to come up with recommendations. He was quoted in the press as setting for his

ultimate goal prohibiting all abortions. He named only the most dedicated pro-life

advocates. The Speaker and Senate Pro Tern of the General Assembly—both of

whom had voted pro-life—publicly protested. They said the task force would be ‘‘slanted to one side’’ and would not provide ‘‘the necessary balance that reflects the

feelings of the state’’ nor all necessary expertise to look at health issues for mothers

and children. They refused to participate because the governor insisted that all task

force members oppose abortion. The proposal turned into controversy. Whatever

benefit a task force might have had was lost and the group produced little that was

usable.

This kind of insistence on rigid conformity to preset values may please his supporters, but it makes Missourians very uncomfortable. It should concern the U.S.

Senate. It was under Governor Ashcrofts watch in 1989 that state troopers were deployed to prevent a father from removing his daughter to another state for further

medical opinions on whether to maintain her on life support. The father had a court

order in hand issued by a judge after a full hearing that included supportive testimony from doctors and a Catholic ethicist. Yet he was denied the right even to visit

his child alone. ‘‘Right to Life’’ forces had pressed the state to keep the young

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woman alive even though doctors described her as being in a vegetative state. They

insisted the state enforce their views on the family.

Missouri obliged. The family was dragged through emotional hell for years until

the 1992 election brought in a new administration that declared the state should

stop interfering.

Governor Ashcroft also was willing to flout the law when he didn’t like its interpretation. In 1985, shortly after Senator Ashcroft and I were separately elected to

the top two statewide offices, he called me to a private meeting and said he would

be glad to give me useful things to do, but in exchange I must agree not to serve

as interim governor in his absence from the state. This struck me as political paranoia. It suggested I was not to be trusted. I assured him I had no intention of misusing executive power in his absence and wanted very much to work with him. But

I could not accede to his unilateral decision. The Missouri constitution was very

clear. Not only does it provide that the lieutenant governor assumes office upon

death or disability of the governor, but a separate provision provides for the lieutenant governor to act as governor on the governor’s ‘‘absence from the state.’’

Governor Ashcroft said he did not accept that interpretation; he withdrew his

offer to include me in state activities, and shortly afterward left the state without

notifying either my office or that of the Secretary of State as always had been customary. The situation was ridiculous; if he thought the provision no longer necessary, the proper course would be to propose a change in the law, or seek a court

ruling. As tension increased, we hired our own counsel, warning that we would go

to the media if necessary. At the last minute before his next trip, a proper notice

was slipped under our door, and there were no further problems. But he renewed

the confrontation with Mel Carnahan, who succeeded me as lieutenant governor,

poisoning the relationship. This time, he did seek the opinion of the state courts.

The judge affirmed the governor’s powers, but recommended that he should use his

discretion to work with the lieutenant governor to keep state business running

smoothly. That didn’t happen until he left office.

That story may seem far removed from weighty issues of civil rights, abortion and

church-state relationships that will be debated in this nomination, but Senator

Ashcroft’s behavior raises worrisome questions about his temperament as the leader

of a department that inevitably is going to be involved in controversy. What will

be his willingness to follow a law he considers wrong, or one that he says he is following but interprets differently than prevailing view?

In 1978, when John Ashcroft was Missouri Attorney General, he sued the National Organization for Women because it conducted a boycott of Missouri (and other

states) for falling to ratify the Equal Rights Amendment. What was notable about

this use of the anti-trust laws to control speech was his persistence in appealing

all the way to the Supreme Court, using major state resources, even when he lost

in the federal district court and the 8 th U. S. Circuit Court of Appeals, and even

though legal scholars discouraged the effort. His spokesperson denied he acted because of his personal opposition to the Equal Rights Amendment, but it must be

noted that in 1977, Janet Ashcroft appeared to testify against ratification of the

ERA at a hearing in the Missouri Senate, a very conspicuous action for the wife of

the attorney general of the state.

Senator Ashcroft views government and public service as vehicles for achieving

certain ideologically shaped goals. He is a man of deep convictions. I respect him

for that. But conviction that fails to respect the convictions of others can be dangerous. He has stated that ‘‘You can legislate morality.’’ This is not a majority viewpoint in Missouri. Missourians expressed concern in 1999 when Senator Ashcroft

gave the commencement speech and received an honorary degree at Bob Jones University. Many were embarassed when he compounded the problem by denying he

was aware of certain intolerant positions of that institution. His 1999 Christmas

card listed the Bob Jones appearance as a highlight of his year. Other politicians

have spoken at this university, but it is difficult to conceive that someone bragging

about such a connection would be named to head the Justice Department. Especially

not when nerves are so raw over alleged voting irregularities involving minorities.

In 1988, while he was governor, John Ashcroft was one of only two members of

a 40 member federal commission studying the plight of minorities in America who

refused to sign the panel’s final report. Members included former Presidents Carter

and Ford and Coretta Scott King. Ashcroft was quoted as saying he believed the

findings were too negative. I cannot judge his reasons for abstaining, but his action

in isolating himself from majority opinion is bound to set off alarms among those

most likely to need a Justice Department ready to intervene on their behalf. It’s not

enough to say that one will enforce the letter of the law; the spirit can be a major

determinant of whether anything really happens.

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Governor Ashcroft and I were two of the three members of Missouri’s Board of

Public Buildings which approves construction contracts. It was obvious in dealing

with the proposals that minority and female contractors were not getting an adequate share of business from the state, despite existence of many small contractors

seeking to participate. It seemed worthwhile to look for ways to improve the situation. Governor Ashcroft was not interested. So long as we met minimum requirements, he was satisfied. The lieutenant governor’s office finally acted on its own,

refusing to sign one contract that had bundled together many small jobs until the

contractor agreed to institute a minority training effort.

It sometimes seems, listening to conflicting testimony, that there are two John

Ashcrofts. I understand this. Senator Ashcroft was unfailingly polite in our personal

exchanges. He maintained an amiable, open countenance with the public and his

peers, but he could be fierce when angered and had a reputation for ‘‘getting even’’ with those who crossed him. A sense of righteousness and ordained destiny can

make it hard to brook criticism; On at least one occasion. the governor lashed out

with such anger at a critic that he had to be dragged away. I mention this not to

engage in personal attack, but because this temperament spilled over into his conduct when opposing presidential nominees. The senators surely are aware that too

often this turned into unnecessary vilification and petty picking at minor items,

rather than focusing on issues of competence. (Judge Margaret Morrow, Dr. David

Satcher, James Hormel, Dr. Henry Foster, Clarence Sundram, among others).

It is unfortunate that Governor Ashcroft has antagonized a majority of AfricanAmericans and women. Despite recent claims, Governor Ashcroft did not have an

outstanding appointment record in this area. In eight years, out of 121 judicial appointments, he appointed 12 women, or 10%, and 8 African-Americans, or 6.6%. His

successor would triple those percentages in short order. It must also be noted that

Governor Ashcroft did not appoint his first woman to the appellate court until September 1987, more than halfway through his first term, and only then after a major

onslaught of negative publicity about his poor record. As for women in appointed

executive positions, in 1986 Governor Ashcroft tied with George Wallace of Alabama

in having the fewest women in his cabinet—just one. He never increased that number.

The issue isn’t just appointments. Women and minorities have been disproportionately at odds with Senator Ashcroft because those rising from their midst often have

policy differences with him, which shouldn’t be surprising given that their life experiences are so different. He is wedded to the values of the Assembly of God church

and has little tolerance for these differences. He is not a racist in the usual sense.

It’s just that he is so locked into the rightness of his views that he sees spokespersons for those who differ as enemies to be destroyed rather than opponents to

be debated. Senator Ashcroft is constantly described as a man of integrity, but what

does that mean if it leaves him free to use government office to destroy the reputation of others for political expedience.

That is what many Missourians believe he did to Ronnie White. It wasn’t just African-Americans who were offended. He blocked a highly respected Missouri Supreme Court judge from a federal position through deliberate misrepresentation and

character assassination in order to create a law and order issue for his race against

Mel Carnahan. He played the race card with court-ordered desegregation to advance

his prospects to become governor. Someone rooted in religious values should set an

example. Instead, his actions worsened race relations in a state that continues to

struggle to improve interracial understanding. They diminished respect for justice

and the courts at a time when more than ever we need to restore confidence in the

law and the courts. They lowered the tone of debate between candidates and political parties. John Ashcroft polarized Missourians; his appointment will do the same

for the country.

Missourians gave Senator Ashcroft a majority of their votes many times. Clearly

he was a popular politician. Attitudes began to change in the past couple of years

as he moved farther and farther out of the mainstream. The common wisdom about

the 2000 senatorial race in Missouri is that it turned on a sympathy vote for a dead

governor. Not so simple. Mel Carnahan won because Senator Ashcroft had alienated

moderate Republicans and independents long before the tragedy occurred. They rejected views and actions they considered to be increasingly extreme. There was a

clear choice between Carnahan values and Ashcroft positions. He had lost the support of Missourians.

So it boils down to this. What does it really mean when a nominee with this

record promises to enforce the law? In 1999, Senator Ashcroft campaigned in Missouri for a losing statewide initiative to permit carrying of concealed weapons. He

told us over and over that he wants to make abortion a crime even in the case of

rape and incest. He did his utmost to impede family planning and availability of

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contraceptives. He has blocked confirmation of qualified moderate judges. What priorities will he choose, what court cases will he support; what judicial nominees will

he promote? Will he fairly serve all of us in this most important position? Senator

Ashcroft says he will. His record in Missouri suggests otherwise.

Senator Ashcroft has a long record of service in public office. It would be appropriate for the new administration to make use of his abilities. But not as attorney

general of the United States.

Chairman LEAHY. Thank you.

Mr. Hunter?

STATEMENT OF JERRY HUNTER, ESQ., FORMER LABOR

SECRETARY OF MISSOURI, ST. LOUIS, MISSOURI

Mr. HUNTER. Mr. Chairman, Senator Leahy, Ranking Member

Senator Hatch, and members of the Senate Judiciary Committee,

it is indeed a pleasure and honor for me to be here today to testify

in support of President-elect George W. Bush’s nomination of John

Ashcroft to be Attorney General of the United States.

Based upon my personal knowledge and relationship with Senator Ashcroft, I believe he is immanently qualified to hold the position of Attorney General. I have known Senator Ashcroft since

1983, and I have had the pleasure to work with him as an advisor,

a subordinate during the period I was director of the Missouri Department of Labor from 1986 to 1989, and as a friend and supporter.

During that period that I have known Senator Ashcroft, I have

always known him to be a person of the utmost integrity and an

individual who is concerned about others. Contrary to statements

which you have just recently heard and will hear from others during this hearing, I do not believe Senator Ashcroft is insensitive to

minorities in this society, and I think the record which has been

laid out by Senator Ashcroft clearly contradicts these allegations.

Like President-elect George W. Bush, Senator Ashcroft followed

a policy of affirmative access and inclusiveness during his service

to the State of Missouri as Attorney General, his two terms as Governor, and his one term in the U.S. Senate.

During the 8 years that Senator Ashcroft was Attorney General

for the State of Missouri, he recruited and hired minority lawyers.

During his tenure as Governor, he appointed blacks to numerous

boards and commissions, and my good friend, Ms. Woods, referred

to that, but I would say to you on a personal note, Senator Ashcroft

went out of his way to find African-Americans to consider for appointments.

In fact, it was shortly after then-Governor Ashcroft took office in

January 1985 that I received a call from one of the Governor’s

aides who advised me that the Governor wanted me to help him

to locate minorities that he could consider for appointments to various State boards and commissions and positions in State government.

At the time, I was employed in private industry in St. Louis as

a corporate attorney. I certainly was pleased that the Governor had

asked me to assist his administration in helping him to locate and

recruit African-Americans that he could consider for appointments.

During his tenure as Governor, John Ashcroft appointed a record

number of minorities to State boards and commissions, including

many boards and commissions which had previously had no minorVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00286 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
273

ity representation. Governor Ashcroft also appointed eight AfricanAmericans to State court judgeships during his tenure, including

the first African-American to serve on a State appellate court in

the State of Missouri and the first African-American to serve as a

State court judge in St. Louis County.

Governor Ashcroft did not stop with these appointments. He approved the appointment of the first African-Americans to serve as

administrative law judges for the Missouri Division of Worker’s

Compensation in St. Louis City, St. Louis County, and Kansas

City.

When Governor Ashcroft’s term ended in 1993, January 1993, he

had appointed more African-Americans to State court judgeships

than any previous Governor in the history of the State of Missouri.

Governor Ashcroft was also bipartisan in his appointment of

State court judges. He appointed Republicans, Democrats, and

Independents. One of Governor Ashcroft’s black appointees in St.

Louis was appointed notwithstanding the fact that he was not a

Republican and that he was on a panel with a well-known white

Republican.

Of the nine panels of nominees for State court judgeships which

included at least one African-American, Governor Ashcroft appointed eight black judges from those panels, and in appointing African-Americans to the State court bench, Governor Ashcroft did

not have any litmus test and none of his appointees to the State

court bench, be they black or white, his or her position on abortion

or any other specific issue, and I know this because I talked to

many of the black nominees prior to their interview and talked to

many of the black nominees after their interview.

Governor Ashcroft’s appointment, in fact, of the first black to

serve on the bench in St. Louis County was so well received that

the Mound City Bar Association of St. Louis, one of the oldest black

bar associations in this country, sent him a letter commending him.

As an individual who was personally involved in advising Governor Ashcroft on appointments from 1985 through 1992 and as

one who served as the director of the Missouri Department of

Labor under Governor Ashcroft from 1986 through 1989, I can unequivocally state that the regard which he was held in the minority

community during his tenure as Governor was the highest regard.

Mr. Ashcroft’s record of affirmative access and inclusiveness also

includes his support of and the later signing of legislation to establish a State holiday in honor of Dr. Martin Luther King during

1986. Since 15 years have passed since the passage of the legislation in Missouri which created the holiday in honor of Dr. King,

many individuals here today probably have forgotten the opposition

which existed in the legislature to the establishment of Dr. King’s

birthday as a State holiday. The King bill had been introduced in

the legislature for numerous years, and many of those years the

bill never got out of Committee. In most years, it never—it certainly didn’t pass either house of the legislature. It was not until

1986, after then-Governor Ashcroft announced his support for the

King holiday bill, that the legislation sailed through the legislature

and was ultimately signed by Ashcroft. And following the conclusion of the ceremony where Governor Ashcroft signed the King holiday bill, I went into the Governor’s office and privately thanked

274

him for signing the bill. And Governor Ashcroft responded to me

by saying, ‘‘Jerry, you do not have to thank me; it was the right

thing to do.’’ Because of his sensitivity to the need for role models from the

minority community, then-Governor Ashcroft established an award

in honor of African-American educator George Washington Carver.

He also signed legislation making ragtime composer Scott Joplin’s

house the first historic site honoring an African-American in the

State of Missouri.

Mr. Chairman, I see my time is up. I would like to make one

final point and would be happy to respond to any questions.

When Governor Ashcroft sought re-election in the State of Missouri as Governor during 1988, he was endorsed by the Kansas

City Call newspaper, which is a well-respected black weekly newspaper in the State of Missouri. And in that election, he received

over 64 percent of the vote in his re-election campaign for Governor.

Thank you, Mr. Chairman, and I would be happy to respond to

any questions.

[The prepared statement of Mr. Hunter follows:]

STATEMENT OF JERRY M. HUNTER, ESQ., FORMER LABOR SECRETARY OF MISSOURI, ST. LOUIS, MISSOURI

Mr. Chairman, Senator Leahy, Ranking Member, Senator Hatch, and Members of

the Senate Judiciary Committee, it is a pleasure and indeed an honor for me to be

here today to testify in support of President-elect George W. Bush’s nomination of

John David Ashcroft to be Attorney General of the United States. Based upon my

personal knowledge of and relationship with Senator Ashcroft, I believe that he is

eminently qualified to hold the position of Attorney General. I have known Senator

Ashcroft since 1983 and I have had the pleasure to work with him as an advisor,

a subordinate during the period that I was Director of the Missouri Department of

Labor from 1986 to 1989, and as a friend and supporter. During the time that I

have known Senator Ashcroft, I have always known him to be a person of the utmost integrity and an individual who is very concerned about others. Contrary to

statements which you have heard or may hear during these hearings that Senator

Ashcroft is somehow insensitive to the involvement of African-Americans and other

minorities in the American political process and our society, I can state to you that

there is no support for any such contentions. In fact, the evidence is totally to the

contrary.

AFFIRMATIVE ACCESS

Like President-elect George W. Bush, Mr. Ashcroft followed a policy of affirmative

access and inclusiveness during his service to the State of Missouri as an elected

official which included two terms as Attorney General, two terms as Governor, and

one six year term as United States Senator. During the eight years that Mr.

Ashcroft was Attorney General for the State of Missouri, he recruited and hired minority lawyers including lawyers of African-American descent. Mr. Ashcroft continued his practice of affirmative access and inclusiveness after he was elected Governor of the State of Missouri during 1984. Unlike Mr. Ashcroft’s critics who rely

upon hearsay, innuendo, and unsubstantiated allegations to the effect that he is

somehow insensitive to minorities, I rely upon personal knowledge which I gained

as a result of working directly with then Governor Ashcroft to help him recruit minorities including African-Americans for possible appointment to positions in state

government. The fact that Mr. Ashcroft took affirmative steps to seek out AfricanAmericans for positions in state government make the charges that he is insensitive

to racial matters that more outrageous.

It was shortly after Governor Ashcroft took office in January, 1985 that I received

a call from one of the Governor’s aides who advised me that the Governor wanted

me to help him to locate qualified minorities that he could consider for appointment

to various state boards and commissions and positions in state government. At the

time, I was employed in private industry in St. Louis as a corporate attorney. I certainly was pleased that the Governor had asked me to assist his administration in

275

helping him to locate and recruit African-Americans that he could consider for appointments. During his tenure as Governor, former Governor Ashcroft appointed a

record number of minorities to state boards and commissions including many boards

and commissions which previously had no minority representation. Governor

Ashcroft also appointed eight African-Americans to state court judgeships during his

tenure as Governor including Fernando Gaitan who was appointed as a Judge on

the Missouri Court of Appeals for the Western District of Missouri. Mr. Gaitan was

the first African-American to serve on an Appellate Court in the State of Missouri.

Governor Ashcroft also appointed Sandra Farragut-Hemphill as a Judge on the St.

Louis County Circuit Court. Judge Hemphill was the first African-American to serve

as a state court Judge in St. Louis County. Governor Ashcroft did not stop with

these appointments. He approved the appointment of the first African-Americans to

serve as Administrative Law Judges for the Missouri Division of Worker’s Compensation in St. Louis City, St. Louis County and Kansas City. When Governor

Ashcroft’s second term as Governor ended in January, 1993, he had appointed more

African-Americans as state court Judges than any previous Governor in the history

of the State of Missouri. Governor Ashcroft was also bipartisan in his appointment

of state court Judges. He appointed Republicans, Democrats and Independents. One

of Governor Ashcroft’s black appointees, Judge Charles Shaw, was appointed notwithstanding the fact that he was on a panel of nominees which included a wellknown white Republican. Of the nine panels of nominees for state court judgeships

which included at least one African-American, Governor Ashcroft appointed eight

black Judges from those panels. And in appointing African-Americans to the state

court bench, Governor Ashcroft did not have any litmus test and none of his appointees to the state court bench, white or black, were asked his or her position on

abortion or any other specific issue.

Governor Ashcroft’s record of appointing African-Americans to state court judgeship was so outstanding that the Mound City Bar Association of St. Louis, one of

the oldest African-American Bar Associations in the country, commended him in a

letter dated April 1, 1991 as follows: ‘‘Your appointment of [African-American] attorney Hemphill demonstrated your sensitivity, not only to professional qualifications,

but also to the genuine need to have a bench that is as diverse as the population

it serves.... [T]he appointment that you have just made, and your track record for appointing

women and minorities, are certainly positive indicators of your progressive sense of

fairness and equity. We commend you. . .’’ As an individual who was personally involved in advising Governor Ashcroft on

appointments from 1985 through 1992 and as one who served as the Director of the

Missouri Department of Labor under Governor Ashcroft from 1986 through 1989, I

can unequivocally state that the letter sent to then Governor Ashcroft by the Mound

City Bar during April, 1991 reflects the high regard that he was viewed by the minority community during his two terms as Governor.

Mr. Ashcroft’s record of affirmative access and inclusiveness also includes his support of and the later signing of legislation to establish a State Holiday in honor of

Dr. Martin Luther King during 1986. Since fifteen years have passed since the passage of the legislation in Missouri which created a Holiday in honor of Dr. King,

many individuals have forgotten the opposition which existed in the legislature to

the establishment of a King Holiday in Missouri prior to 1986. The King Holiday

bill had been introduced in the Missouri legislature for the previous ten years or

more. In many of these years, the legislation never got out of committee. Prior to

1986, the King Holiday bill did not pass either house of the legislature. It was only

in 1986 after then Governor Ashcroft announced that he supported the King Holiday

bill that the legislation sailed through the legislature and was ultimately signed by

Ashcroft. Following the conclusion of the ceremony where Governor Ashcroft signed

the King Holiday bill, I went into the Governor’s office and privately thanked him

for supporting and signing the legislation. Governor Ashcroft responded to me by

saying ‘‘Jerry, you do not have to thank me; it was the right thing to do.’’

Because of his sensitivity to the need for role models from the minority community, then Governor Ashcroft established an award in honor of African-American educator George Washington Carver. He also signed the legislation establishing ragtime composer Scott Joplin’s house as Missouri’s first and only historic site honoring

an African-American. And when Lincoln University, a historically black University

which was founded by African-American Union soldiers after the Civil War, became

financially-strapped as a result of mismanagement, Governor Ashcroft led the fight

to save Lincoln University and he opposed efforts to close the University or merge

it with the University of Missouri system which efforts involved many influential

individuals in central Missouri including a significant number of members of the

Missouri legislature.

276

As Governor, Mr. Ashcroft also signed Missouri’s first hate crimes bill and fought

to protect victims’ rights. He also made education reform a priority during his tenure as Governor. Mr. Ashcroft also consulted and met with members of the black

clergy in St. Louis and Kansas City. I attended these meetings with Governor

Ashcroft where he sought to obtain the input of the black clergy on the policies and

programs of state government which impacted the community as a whole and the

black community specifically.

As Senator, Mr. Ashcroft supported 26 of the 28 African-Americans nominated to

the Federal Courts by President Clinton. All 26 nominees that Senator Ashcroft supported were confirmed by the United States Senate. Of the two nominees that Senator Ashcroft did not support, one nomination was withdrawn and the other was

defeated by the Senate.

When he sought reelection as Governor during 1988, Mr. Ashcroft was endorsed

by the Kansas City Call, a well respected black weekly newspaper in Kansas City,

Missouri. Mr. Ashcroft went on to win reelection as Governor with 64% of the vote.

A CASE OF REVISIONISM

Many of those who now denounce Senator Ashcroft as allegedly being insensitive

to racial issues expressed no such view during Senator Ashcroft’s tenure as Missouri

Governor. It is not Senator Ashcroft who has changed his views; it is his critics who

have done so. And in spite of his record of having appointed an unprecedented number of African-Americans to positions in state government and having supported legislation at the state and federal levels to recognize achievement by citizens of African-American descent, he is being unfairly labeled as being insensitive to racial

issues without any support for such allegation. By placing such a label on Senator

Ashcroft, his opponents hope to attack the very character traits which qualify him

to be Attorney General and to somehow place him outside of the mainstream of

American political thought. It is indeed sad and unfortunate that Senator Ashcroft’s

critics have decided that they would rather destroy his reputation as being a person

of the highest integrity and someone who is honest and fair minded rather than

having an intelligent discussion on the issues which they disagree with him including the size and the role of the federal government in issuing mandates to the states

and the American people in the areas of education, civil rights, crime prevention

and many other facets of American life. As Mr. Ashcroft’s record during his years

as Missouri Governor clearly shows, he is not only not insensitive to matters of race,

he appointed more blacks to positions in Missouri state government than any of his

democratic predecessors.

As far as the issue of Senator Ashcroft’s willingness and commitment to enforcing

the law is concerned, during the period that I was Director of the Missouri Department of Labor and Industrial Relations, Governor Ashcroft not only did not discourage our efforts to enforce the various laws which came under the jurisdiction of the

Department, but rather he encouraged reasonable enforcement of the laws which included the prohibition against employment discrimination, the wage and hour laws,

and health and safety requirements. Shortly before I assumed the position of Director of the Department of Labor, Governor Ashcroft removed several managers in the

Division of Labor Standards because they failed to process requests for wage determinations in an expeditious fashion and failed to set the prevailing wages in a number of counties, which resulted in the delay of the commencement of construction

on numerous publicly funded projects.

During my tenure with the Department, Governor Ashcroft’s budget usually included a request for increased funding for each of the Divisions within the Department including the Missouri Commission on Human Rights, which responsibility included enforcing Missouri laws prohibiting employment and housing discrimination.

As an African-American who has had the opportunity to know and work with Senator Ashcroft, I certainly hope that this Committee will take the time to learn firsthand about Mr. Ashcroft’s commitment to affirmative access and inclusion of African-Americans and other minorities in all facets of American life. If this Committee

and the United States Senate give him the opportunity, I believe Senator Ashcroft

will do an outstanding job as Attorney General and will enforce the laws of the

United States without regard to his personal beliefs.

Chairman LEAHY. Thank you, Mr. Hunter, and you are correct,

you did go over time. I am trying to be as flexible as I can, but

there are a lot of other witnesses, and we hope that by late tomorrow night we might have this hearing finished.

277

Senator HATCH. We are hoping by late tonight to get this hearing

over, and there is no reason— Chairman LEAHY. I think they told all Federal employees to go

home at 2 o’clock this afternoon because President-elect Bush and

Ricky Martin are having a party down the Mall.

Senator HATCH. We know how hard you work, Senator, and we

know you are willing to— Chairman LEAHY. But I don’t want to interfere with the President-elect and Ricky Martin.

Senator HATCH. Well, I do if it is going to put us into tomorrow— Chairman LEAHY. You think the show here is better than Ricky?

Senator HATCH. This is a good show.

Chairman LEAHY. All right. Mr. Susman, please go ahead.

Mr. SUSMAN. If you would be kind enough to reset the clock, I

will—

Chairman LEAHY. I am looking at the clock myself, and I am saying—here we go. Well, it is almost there. Go ahead.

STATEMENT OF FRANK SUSMAN, ESQ., ATTORNEY, GALLOP,

JOHNSON, AND NEUMAN, L.C., ST. LOUIS, MISSOURI

Mr. SUSMAN. Mr. Chairman, Senator Hatch, members of the

Committee, I appreciate your invitation and this opportunity to

share my thoughts on the pending nomination of John Ashcroft as

Attorney General of the United States.

Up front, let me state I strongly oppose this nomination. I am a

practicing attorney in Missouri, with a long history of handling

matters involving health care, particularly as they relate to women,

contraception, and abortion.

Although a minor part of my law practice, I have been counsel

in at least six cases involving these issues before the United States

Supreme Court, three additional cases before the Missouri Supreme Court, as well as numerous other cases in courts throughout

the United States.

Domestically, the Cabinet position of Attorney General is the

most powerful of any. The Attorney General has the ability to

shape the future of the Federal judiciary through his or her involvement in judicial appointments to the 641 district court positions, the 179 circuit courts of appeal positions, and the nine Supreme Court positions.

The Attorney General does much more than merely enforce the

laws of this land. The Attorney General is able to influence legislation merely by the persuasive powers of the office. It is myopic to

believe that the office possesses no discretion in interpreting the

laws of the land, particularly on legal issues neither previously nor

clearly decided by the Supreme Court. The Attorney General has

the discretion to select which laws are to be given priority in enforcement through control of the purse and the assignment of other

resources.

Based upon the nominee’s consistent public statements and public actions over many years, I have no doubt that he would use the

powers of the office to shape the judiciary and the law to his own

personal agenda at the great expense of women, minorities, and

our current body of constitutional and statutory law.

History is, indeed, a reliable precursor of the future.

278

While Missouri’s Attorney General, the nominee issued a legal

opinion seeking to undermine the State’s Nursing Practice Act. He

opined that the taking of medical histories, the giving of information about, and the dispensing of condoms, IUDs, and oral contraceptives, the performance of breast exams, pelvic exams, and Pap

smears, the testing for sexually transmitted diseases, and the providing of counseling and community education by nurse practitioners constituted the criminal act of the unauthorized practice of

medicine.

Each of these services were at the time routine health care practices provided by Missouri nurses for many years and, in fact, were

being provided by nurses within the State’s own county health departments.

As directly related to the case of Sermchief v. Gonzales, filed by

impacted physicians and nurses, these nursing activities were

being provided in federally designated low-income counties, in

which there was not a single physician who accepted as Medicaideligible women patients for prenatal care and childbirth because of

the low-fee reimbursement schedules established by the State of

Missouri.

This opinion by the nominee provided the impetus for the State’s

Board of Registration for the Healing Arts to threaten the plaintiff

physicians and nurses with a show-cause order as to why criminal

charges should not be brought against them.

Implementation of the nominee’s opinion would have eliminated

the cost-effective and readily available delivery of these essential

services to indigent women who often utilize county health departments as their primary health care provider and would have shut

and bolted the door to all poor women who relied upon these services as their only means to control their fertility.

In Sermchief, a unanimous Missouri Supreme Court struck down

the nominee’s interpretation of the Nursing Practice Act.

During the nominee’s term as Governor of Missouri, family planning funding was limited to the lowest amount necessary to

achieve matching Federal Medicaid funds. And during this same

period of time, teenage pregnancies in Missouri increased.

The nominee vigorously opposed the Snowe-Reid amendment to

the Federal Health Benefits Plan, seeking to extend Federal health

care coverage to include contraceptives.

The nominee cosponsored unsuccessful Congressional legislation

seeking to impose upon all Americans a Congressional finding that

‘‘life begins at conception,’’ which would have eliminated the availability of many common forms of contraception and legislation requiring parental consent for minors to receive contraception.

Throughout his political career and at every opportunity, the

nominee has sought to limit access to and require parental consent

for not only abortion but for contraception as well, although parental consent has never been suggested as a prerequisite for a minor

to engage in sexual intercourse or to bear children. Although the

nominee has continually sought to give these decisional rights of a

minor to her parents, he has never suggested that these same parents have any financial or other responsibility for the minor’s child

once born.

279

The nominee’s involvement with Bob Jones University, with the

nominations of Dr. Henry Foster and of Dr. David Satcher as Surgeon General, with the nominations of Ronnie White as Federal

district court judge, his tireless opposition to court-ordered desegregation plans, his support of school vouchers and of school prayer,

all portray a person of deep personal convictions—an admirable

quality in other contexts.

But when these convictions are starkly at odds with existing law

and public sentiment in this country, then a person with such convictions should not be asked to ignore them in an effort to carry

out faithfully the oath of office. Nor should we ever place any nominee in such an untenable dilemma.

In conclusion, I implore you to send a message to our Presidentelect: to submit to this Committee a nominee for Attorney General

in whom an overwhelming majority of our citizens can admire, take

comfort, and have confidence in to administer the office of Attorney

General in a fair and just manner for all Americans, rather than

an individual who has devoted his political career opposing the

laws of this land on a wide variety of issues affecting the everyday

lives and the will of the people.

Thank you.

[The prepared statement of Mr. Susman follows:]

STATEMENT OF FRANK SUSMAN, ESQ., GALLOP, JOHNSON, AND NEUMAN, L.C., ST. LOUIS, MISSOURI

Mr. Chairman and members of the committee. I appreciate your invitation and

this opportunity to share my thoughts on the pending nomination of John Ashcroft

as Attorney General of the United States.

Up front, let me state I strongly oppose this nomination. I am a practicing attorney in Missouri, with a long history of handling matters involving health care, particularly as they relate to women, contraception and abortion.

Although a minor part of my law practice, I have been counsel in at least six cases

involving these issues before the United States Supreme Court, three additional

cases before .the Missouri Supreme Court, as well as numerous other cases in courts

throughout the United States.

Domestically, the cabinet position of attorney general is the most powerful of any.

The Attorney General has the ability to shape the future of the federal judiciary

through his or her involvement in judicial appointments to the 641 District Court

positions, the 179 Circuit Courts of Appeal positions and the nine Supreme Court

positions.

The Attorney General does much more than merely enforce the laws of the land.

The Attorney General is able to influence legislation merely by the persuasive powers of the office. It is myopic to believe that the office possesses no discretion in interpreting the laws of this land, particularly on legal issues neither previously nor

clearly decided by the Supreme Court. The Attorney General has the discretion to

select which laws are to be given priority in enforcement, through control of the

purse and the assignment of other resources.

Based upon the nominee’s consistent public statements and public actions over

many years, I have no doubts that he would use the powers of the office to shape

the judiciary and the law to his own personal agenda, at the great expense of

women, minorities and our current body of constitutional and statutory law.

History is, indeed, a reliable precursor of the future.

While Missouri’s Attorney General, the nominee issued a legal opinion seeking to

undermine the state’s nursing practice act. (No. 32, Jan. 2, 1980). He opined that

the taking of medical histories, the giving of information about and the dispensing

of condoms, LuAs and oral contraceptives, the performance of breast exams, pelvic

exams and pap smears, the testing for sexually transmitted diseases and the providing of counseling and community education, by nurse practitioners, constituted the

criminal act of the unauthorized practice of medicine.

Each of these services were at the time routine health care practices provided by

Missouri nurses for many years and, in fact, were being provided by nurses within

the State’s own county health departments.

280

As directly related to the case of Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. banc

1983), filed by impacted physicians and nurses, these nursing activities were being

provided in federally designated low income counties, in which there was not a single physician who accepted as Medicaid eligible women patients for pre-natal care

and childbirth, because of the low fee reimbursement schedules established by the

State of Missouri.

This Opinion by the nominee provided the impetus for the State’s Board of Registration for the Healing Arts to threaten the plaintiff physicians and nurses with

a show cause order as to why criminal charges should not be brought against them.

Implementation of the nominee’s Opinion would have eliminated the cost-effective

and readily available delivery of these essential services to indigent women, who

often utilize county health departments as their primary health care provider, and

would have shut and bolted the door to poor women who relied upon these services

as their only means to control their fertility.

In Sermchief, an unanimous Missouri Supreme Court struck down the nominee’s

interpretation of the Nursing Practice Act.

During the nominee’s term as Governor of Missouri, family planning funding was

limited to the lowest amount necessary to achieve matching federal Medicaid funds.

During this same period, teenage pregnancies in Missouri increased.

The nominee vigorously opposed the Snowe/Reid amendment to the federal

health benefits plan, seeking to extend federal health care coverage to include contraceptives.

The nominee co-sponsored unsuccessful congressional legislation seeking to impose upon all Americans a congressional finding that ‘‘life begins at conception,’’

which would have eliminated the availability of many common forms of contraception and legislation requiring parental consent for minors to receive contraception.

Throughout his political career and at every opportunity, the nominee has sought

to limit access to and to require parental consent for not only abortion, but for contraception, as well; although parental consent has never been suggested as a prerequisite for a minor to engage in sexual intercourse or to bear children. Although

the nominee has continually sought to give these decisional rights of a minor to her

parents, he has never suggested that these same parents have any financial or other

responsibility for the minor’s child once born.

The nominee’s involvement with Bob Jones University, with the nominations of

Dr. Henry Foster and of Dr. David Sacher as Surgeon General, with the nomination

of Ronnie White as Federal District Court Judge, his tireless opposition to court ordered desegregation plans, his support of school vouchers and of school prayer, all

portray a person of deep personal convictions—an admirable quality in other contexts.

But when those convictions are starkly at odds with existing law and public sentiment in this country, then a person with such convictions should not be asked to

ignore them in an effort to carry out faithfully the oath of office. Nor should we ever

place any nominee in such an untenable dilemma.

I implore you to send a message to our president-elect—to submit to this committee a nominee for Attorney General, in whom an overwhelming majority of our citizens can admire, take comfort and have confidence in to administer the office of Attorney General in a fair and just manner for all Americans; rather than an individual who has devoted his political career opposing the laws of this land on a wide

variety of issues affecting the everyday lives and will of the people.

Chairman LEAHY. Ms. Michelman, we welcome you to this Committee. You have been a witness here before, and we appreciate

having you here today.

STATEMENT OF KATE MICHELMAN, PRESIDENT, NARAL,

WASHINGTON, D.C.

Ms. MICHELMAN. Thank you, Mr. Chairman, Senator Hatch, and

members of the Committee. I appreciate the invitation to testify—

Chairman LEAHY. Pull the microphone just a little bit closer,

would you, please?

Ms. MICHELMAN. Sorry.

A decade ago, I spoke here of my experience as a struggling

young mother of three, again pregnant by the husband who had

abandoned my daughters and me, as a woman forced to endure

281

humiliating interrogation by a hospital Committee, confronted with

laws that made abortion a crime.

Since then I have met thousands and thousands of women who

depend on this Nation’s right to choose and the survivors of those

women who died because they did not have that right.

I have also spoken to women facing legal hurdles today. Desperate women call NARAL to ask whether the laws that restrict

and stigmatize abortion forbid them from obtaining the services

they need. Women without the money to diaper their children;

women who cannot travel for hours to get an abortion; young

women who fear they will be battered if they tell their parents they

are pregnant.

The right to safe, legal abortion hangs by a slender thread. That

threat could be cut by just one Supreme Court Justice or by an Attorney General not committed to its protection. The women NARAL

represents all across this country cannot afford to have that thread

severed.

I will discuss our opposition to this nomination in the context of

three dominant themes:

First, Senators must choose between John Ashcroft’s unmitigated

quarter-century attack on a women’s right to choose and his promise to this Committee to preserve Roe v. Wade, the basis of the

right he has long sought to undermine.

Second, this nomination is so far outside the bounds of our National consensus regarding fundamental civil rights that it must be

rejected, notwithstanding the President’s prerogatives and senatorial courtesy.

And, third, John Ashcroft’s record speaks volumes. It shows that

he would use the vast powers of the Department of Justice to bend

the law and undermine the very freedoms it took American women

a century to secure. His promise to enforce existing law is obvious

and necessary, but is woefully insufficient.

John Ashcroft’s record includes the following, and I will note

some of those that have already been mentioned:

He cosponsored the Human Life Act which would have virtually

outlawed all abortions and common contraceptive methods like

birth control pills.

In his support for banning abortion procedures, he has called

preserving the woman’s life ‘‘rhetorical nonsense.’’

As Attorney General, he tried to stop nurses from providing contraceptive services, an effort the State Supreme Court unanimously

rejected.

As Governor, he supported a bill outlawing abortion for 18 different reasons, almost all abortions, and women would have had to

have signed an affidavit revealing the most intimate details of their

personal lives.

As Attorney General, Ashcroft testified in favor of Federal legislation declaring that life begins at conception, which would have allowed States to prosecute abortion as murder. Throughout his career, Ashcroft had worked to undermine, not respect, existing law.

Senator Ashcroft’s goal has been to criminalize abortion, even in

the cases of incest and rape, and to limit the availability of contraceptives. He has used every single tool of public office to attack

women’s reproductive rights. Merely committing not to roll back

282

our constitutional freedoms is not enough. To be confirmed, his

record and his goals should be consistent with this commitment.

Senator Ashcroft’s convenient conversion on the road to confirmation is simply implausible. His conversion has been timely, but it

will be too late for millions of American women if he does not live

up to his surprising promise to protect their right to choose.

Now, I know that when a colleague sits before you, the confirmation process is particularly sensitive. And within reasonable

bounds, a President indeed should be able to pick his closest advisers. But those bounds have been exceeded here. It would be unthinkable to confirm an Attorney General who built a career on dismantling Brown v. Board of Education. By the same standard, by

the very same standard, a person should be disqualified if he has

sought over decades and by repeated official acts to annul the

rights of women. A career built on attempts to repeal established

constitutional rights is not only sufficient reason to vote against

John Ashcroft’s nomination, it should compel rejection.

John Ashcroft has told you that he will enforce the law. I did not

expect him to say anything different. Remember, though, the duties

of the Attorney General are far greater. He will advise the President on new legal initiatives. He will be charge with interpreting

the law. He will be a strong voice in the appointment of every

United States attorney and Federal judge. The Solicitor General

will work under his discretion, and I believe that Senator Ashcroft

will have a very keen eye to the opportunities new cases and new

statutes present.

May I say that NARAL expected the President to nominate a

conservative, but John Ashcroft’s record is indeed uncompromising.

Millions of women who stand with me cannot afford the risk of

your giving John Ashcroft the awesome powers of the Attorney

General.

Thank you.

[The prepared statement of Ms. Michelman follows:]

STATEMENT OF KATE MICHELMAN, PRESIDENT OF NARAL, WASHINGTON, DC

Thank you, Senator Leahy and Members of the Committee, for inviting me to testify. Almost ten years ago before this Committee, I spoke of my experience as a

struggling young mother of three, again pregnant by the husband who had abandoned my family and me. I testified as a woman forced to endure humiliating interrogation by a hospital committee and confronted with laws that made abortion a

crime.

I have spent the decade since that testimony fighting for the rights of women,

traveling around our country. I have spent these years meeting thousands of women

who depend on this nation’s constitutional protection for a woman’s right to choose

and the survivors of those women who lost their lives because they didn’t have that

right.

I have also spoken to women facing legal hurdles today. Desperate women call

NARAL to ask whether the laws that restrict and stigmatize abortion forbid them

from obtaining the services they need. Women without the money to diaper their

children; women who cannot travel for hours to get an abortion; young women who

fear they’ll be battered or thrown out of the house if they tell their parents they

are pregnant; women pregnant by abusive relatives.

The right to safe, legal abortion is not secure. The Supreme Court has recognized

that the right to choose is fundamental to women’s equality, our dignity, and our

freedom. Yet that right hangs by a thread. That thread could be cut by just one Supreme Court justice, or by an Attorney General uncommitted to its protection. The

women NARAL represents cannot afford to have that thread severed. Their futures,

their families, and sometimes their very lives, depend upon the right.

283

I will discuss our opposition to the nomination of John Ashcroft in the context of

three dominant themes relating to this nomination:

• First, Senators must choose between John Ashcroft’s unmitigated quartercentury

attack on a woman’s right to choose versus his initial remarks before this Committee, in which he vowed to preserve Roe v. Wade, the very case he has long

sought to undermine. • Second, this nomination is so far outside the bounds of our national consensus regarding fundamental civil rights and civil liberties that it must be rejected, notwithstanding the President’s prerogatives and Senatorial courtesy; and • Third, John Ashcroft’s obvious and necessary promise to enforce existing law is

woefully insufficient to warrant his confirmation. His record speaks volumes.

That record indicates that John Ashcroft would indeed use the full panoply of

powers available to the Attorney General to shape the law, to rescind the freedoms it took American women a century to secure.

John Ashcroft’s record, spelled out in more detail in my written submission, includes the following:

• He cosponsored the Human Life Act of 1998, which declared that life begins at

fertilization. If enacted, this Act would have the effect of banning common contraceptive methods like birth control pills that millions of women rely upon. • In his support of abortion procedure bans, he has called preserving the woman’s life ‘‘rhetorical nonsense.’’

• He likened safe, common forms of contraception to abortion in opposing insurance

coverage of contraception.

• As Attorney General of Missouri, he took action to limit nurses from providing

vital contraceptive services. Fortunately, the Missouri Supreme Court unanimously rejected that effort.

• As Governor, he supported a bill in Missouri that would have outlawed abortion

for 18 different reasons, encompassing almost all abortions. Women seeking reproductive health services would have had to sign an affidavit, revealing the

most intimate details of their personal decision.

• In 1981 as Attorney General, Ashcroft came to Washington to testify in favor of

the Helms/Hyde bill declaring that life begins at conception, thus allowing

states to prosecute abortion as murder. The legislation was flagrantly unconstitutional but Ashcroft testified that he wanted to present a challenge to the

courts, rather than having Congress respect established law.

These and other actions John Ashcroft has taken as a public servant to criminalize abortion—even in cases of rape and incest—and to limit the availability of contraceptives demonstrate that he uses every tool of every public office to attack women’s rights. The Attorney General-designate must commit not to take any action to

roll back our constitutionally protected rights. But that’s not all. His or her experience must demonstrate that such a commitment can be trusted, and John Ashcroft’s

late conversion on the road to confirmation is implausible. For the women whose

lives, health and futures depend upon reproductive rights, it will be too late if Senator Ashcroft does not live up to his surprising promises to protect the right to

choose.

Many say the President is entitled to have his nominees confirmed, short of some

violation of the law or an ethical lapse. And I know that when a colleague sits in

front of you, the confirmation process is particularly sensitive and difficult. Within

reasonable bounds, a President should be able to pick his closest advisors. But those

reasonable bounds have been exceeded with this appointment. It would be unthinkable for the Senate to confirm an Attorney General who built a career on dismantling Brown v. Board of Education. By the same token, a person should be disqualified from being Attorney General if he has sought, over decades and by repeated

official acts, to annul women’s rights, as John Ashcroft has. A career built on attempts to repeal established constitutional rights is not only sufficient reason to vote

against his nomination; it should compel rejection.

Integrity of course demands that the Senate not sacrifice women’s rights for the

friendship of a colleague. The Reverend Dr. Martin Luther King, Jr. said, ‘‘The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy.’’ If you understand

that women’s equality hinges on the right to choose, you must vote against the confirmation of John Ashcroft.

John Ashcroft has told you that he will enforce the law. What else would he or

any nominee say? Remember, though, that the official duties of the Attorney General go far beyond enforcing the clear and specific dictates of existing law. And

through every one of those duties and powers, including as the President’s legal advisor as to what the law should be, John Ashcroft poses a threat to women’s reproducVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00297 Fmt 6601 Sfmt 6621 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
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1 Reproductive Health Services v. Freeman, 614 F.2d 585 (8th Cir.), vacated, 449 U.S. 2 Ashcroft v. Freiman, 440 U.S. 941 (1979); Morton Mintz, Mo. Seeking Review of its Wardof-State Abortion Law Clause, WASHINGTON POST, Mar. 4, 1979, A7. 3 3Missouri v. National Organization for Women, 467 F.Supp. 289, 291 (W.D. Mo. 1979), aff’d,

620 F.2d 1301 (8 th Cir. 1980), cert. denied, 449 U.S. 842 (1980). 4 Anti-Abortion Rally in St. Louis Draws Thousands, ASSOCIATED PRESS, Oct. 27, 1980.

tive rights and equality. No case will ever present the same facts as decided cases

such as Roe, Casey, or Stenberg. John Ashcroft will have a keen eye for the small

differences new cases and new statutes present, and he will argue that these differences fall outside the protections of the established law he has newly promised

to uphold. For example, would the Department argue in the Supreme Court that

requiring parental consent for contraceptives is unconstitutional? Roe v. Wade,

which was always more than just a legal case, has been hollowed out already. John

Ashcroft’s long record suggests that he would maintain only those protections the

Court has already explicitly said cannot be taken away.

NARAL did not expect the President-elect to nominate anyone other than a conservative to be Attorney General. But John Ashcroft—notwithstanding the remarkable assurances he has offered over the past two days—is far beyond the margin

of tolerance. Millions of women who stand with me cannot afford the risk of confirming John Ashcroft to the awesome position of Attorney General.

NARAL REPRODUDIVE FREEDOM & CHOICE

JOHN ASHCROFT: A CHRONOLOGY OF ASSAULTS ON WOMEN’S REPRODUCTIVE RIGHTS

The designee to be the next Attorney General is a man whose record demonstrates a commitment to roll back established constitutional rights, a man who

opposes abortion even in cases of rape and incest, a man who would legislate

against common forms of contraception.

In the quotes and acts cited below, John Ashcroft declares that Roe v. Wade, the

case that guarantees a woman’s right to choose, was built ‘‘on the quicksand of judicial imagination.’’ He ennobles the drive to end legal abortion by likening it to the

civil rights movement of the 1960’s. He declares that fetuses should be protected

fully by the 14th Amendment, a position that would effectively criminalize as murder

all abortions except those to preserve the woman’s life. This record illustrates that

John Ashcroft is so far out of step with the views of Americans—and such a threat

to established constitutional rights—that he should not be confirmed as Attorney

General.

Ashcroft’s Public Career

1973–1975 State Auditor of Missouri

1975–1976 Assistant Attorney General of Missouri

1976–1985 Attorney General of Missouri

1985–1992 Governor of Missouri

1995–2000 U.S. Senator from Missouri

1979—Attorney General

• Ashcroft defended a Missouri regulation that prohibited poor women from obtaining public funds to pay for medically necessary abortions to reserve their health.

He appealed the case all the way to the U.S. Supreme Court.1

• Ashcroft defended a 1974 Missouri law requiring physicians under pain of

criminal penalties to inform women seeking an abortion that if the infant is delivered alive, it will become a ward of the state. The Supreme Court affirmed a decision that struck down the law.2

• Ashcroft brought suit against the National Organization for Women (NOW) for

exercising their first amendment right to sponsor a boycott of states that had not

ratified the Equal Rights Amendment (ERA), alleging that the organization had violated federal anti-trust laws. So entrenched was his opposition to the ERA that

Ashcroft appealed the case all the way to the U.S. Supreme Court.3

1980

• Ashcroft participated in an anti-abortion rally entitled ‘‘Pilgrimage for Life’’ in

St. Louis, Missouri.4

1981

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5 Bernard Weinraub, Senate Hearings on Abortion Close on Emotional Note, NEW YORK

TIMES, June 19, 1981, A16; Hearings on S. 158 Before the Subcomm. on Separation of Powers,

Senate Comm. on the Judiciary, 97 th Cong. 1105–1116 (1981) (statement of Att’y Gen. John

Ashcroft, Mo.). 6Scott Kraft, Supreme Court Decision Hailed as ‘‘Most Significant in Decade’’ ASSOCIATED

PRESS, June 15, 1983; Planned Parenthood Assoc. of Kansas City, Mo. v. Ashcroft, 462 U.S. 476

(1983). 7Sermchief v. Gonzales, 660 S.W.2d 683 (Nov. 22, 1983); Op. Att’y Gen. No. 32 (Jan. 2, 1980). 8Susan Hilton, Personal Communication with Elizabeth Cavendish, Vice President of the

NARAL Foundation and NARAL Legal Director (Jan. 10, 2001). 9 Ashcroft Urges Support for Right-to-Life Amendment, JEFFERSON CITY NEWS & TRIBUNE, Mar. 1983. 10 Associated Press, Backers, Opponents of Court Decision Express Views; Abortion Ruling Anniversary Observed, LOS ANGELES TIMES, Jan. 23, 1985, 12. 11 1986 MO HB 1596; Christopher Ganschow, Missouri Limits Funds for Abortions, CHICAGO

TRIB., June 28, 1986, 3; Webster v. Reproductive Health Services, 492 U.S. 490 (1989). 12Office of the Governor, State of Missouri, Proclamation Declaring January 22, 1989 a Day

in Memoriam for Unborn Children (Jan. 17, 1989).

• Ashcroft testified before Congress alongside anti-choice activist John Willke, in

support of a bill sponsored by Senator Helms and Representative Hyde that stated

that life begins at conception and that would have allowed states to prosecute abortion as murder. Ashcroft stated, ‘‘I would regard this bill as an important but insufficient step in the protection of human life. I personally have an opinion and belief

that the human life amendment would remain necessary.’’ He also called Roe v.

Wade an ‘‘error-ridden decision’’ and said, ‘‘I have devoted considerable time and significant resources to defending the right of the State to limit the dangerous impacts

of Roe v. Wade, a case in which a handful of men on the Supreme Court arbitrarily

amended the Constitution and overturned the laws of 50 states relating to abortions.’’ 5

1983

• In Planned Parenthood v. Ashcroft, Ashcroft defended an anti-abortion Missouri

law before the U.S. Supreme Court. Commenting on the Court’s decision to uphold

a provision of the law requiring a second physician to be present during post-viability abortions, Ashcroft said this was ‘‘a victory for Missouri’s law.’’ In response to

the Court’s decision to invalidate a part of the law that would have required all

abortions after 12 weeks to be performed in a hospital, Ashcroft stated that Missouri

may need more stringent abortion clinic regulations as a results.6

• As Attorney General, Ashcroft attempted to block nurses in Missouri from providing basic gynecological services—including providing oral contraceptives,

condoms, and IUDs, and providing PAP smears and testing for gonorrhea—by intervening on behalf of the respondent in a Missouri Supreme Court case. The suit was

based on an Attorney General opinion by Ashcroft.7 According to Susan Hilton, who

was involved in the suit, if the medical board (known as the Board of Registration

for the Healing Arts) had been able to carry out its threats against doctors who

worked with nurse practitioners, it would have stopped the delivery of health care

in the family planning system dead in its tracks.8

• According to the Jefferson City News & Tribune, Ashcroft told the Missouri Citizens for Life annual convention that ‘‘he would not stop until an amendment outlawing abortion is added to the constitution.’’ He said, ‘‘Battles (for the unborn) are

being waged in courtrooms and state legislatures all over the country. We need

every arm, every shoulder and every hand we can find. I urge you to enlist yourself

in that fight.’’ 9

1985—Governor

• Ashcroft designated the 1985 anniversary of Roe v. Wade a ‘‘day in memoriam’’

for aborted fetuses and issued a proclamation that stated, ‘‘the people of Missouri

and their elected official respect God’s gift of life.’’ 10

1986

• 1Ashcroft signed a bill that, among other things: stated that life begins at fertilization, prohibited abortions at publicly funded facilities and prohibited public employees from performing or counseling about abortions. Ashcroft said, ‘‘This bill

makes an important statement of moral principle and provides a framework to deter

abortion wherever possible.’’ The bill was challenged all the way to the U.S. Supreme Court in Webster v. Reproductive Health Services.11

1989

• Ashcroft issued a proclamation declaring the 16th anniversary of Roe v. Wade

‘‘a day in memoriam’’ for aborted fetuses, stating, ‘‘the protection of the Constitution

of the United States ought to apply to all human beings . . . including unborn children at every state of their biological development.’’ 12

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13State of Missouri, Task Force for Mothers & Unborn Children, Final Report, Appendix C,

p. 10 (Jan. 11, 1990); Virginia Young, Abortion Panel’s Report Less Forceful than Expected, ST.

Louis POST-DISPATCH, Jan. 14, 1990, 7C; Karen Ball, Missouri Law Won’t Have Much Impact

on Availability of Abortions, ASSOCIATED PRESS, July 4, 1989; Virginia Young, Abortion Task

Force is Told to Work Fast, ST. Louis POST–DISPATCH, Aug. 9, 1989, 1 C. 14Sharon Cohen, Anti-Abortion Forces: ‘‘Best Sign of Hope We’ve Had in 16 Years,’’ ASSOCIATED PRESS, Apr. 11, 1989. 15 Congressmen Warn Against Complacency In Anti-Abortion Movement, ASSOCIATED

PRESS, July 2, 1989. 16Lori Dodge, Abortion Clinic Officials Call Court Ruling an ‘‘Outrage,’’ ASSOCIATED

PRESS, July 3, 1989. 17 Ethan Bronner, US States Face Flood of Bills on Abortion; Aftermath of Webster Ruling, BOSTON GLOBE, Jan. 29, 1990, 1 P. 18 Jim Mosley, Ashcroft Would Ban 2nd Abortion, Challenge All Others, ST. LOUIS-POST DISPATCH, Jan. 20, 1990, 1 A. 19Mark Schlinkmann, Area Stores Bar Petitions on Abortion, ST. LOUIS-POST DISPATCH,

June 28, 1990, 3A. 20Marcee Frontenac, Missouri’s Children Get Mixed Signal, ST. Louis POST–DISPATCH, May

19, 1990, 313. 21 Virginia Young, Sponsor Shelves Anti-Abortion Bill, ST. LOUIS POST–DISPATCH, May 1,

1991, 14A.

• Immediately after the Webster decision, Ashcroft announced that he ‘‘would appoint a panel of legal and medical experts to ‘consider further changes in Missouri’s laws regulating abortion,’’ ’ including ‘‘additional measures the state could enact

within the framework of [the Webster] decision.’’ Ashcroft subsequently established

a Task Force for Mothers and Unborn Children consisting of seven people tied to

the anti-abortion movement and no obstetricians. When asked whether he would appoint people who support abortion rights, Ashcroft responded, ‘‘It would not be appropriate to have groups that recommend abortion on the panel.’’ Task force member and Missouri Citizens for Life leader Loretto Wagner commented, ‘‘What did you

expect the governor to do? . . . The governor is very clear—he wants to stop abortion. You’re not going to put people on who will try to scuttle that.’’ In early 1990,

the task force issued a report calling on legislators to pass a law to challenge Roe v. Wade.’’ 13

Governor Ashcroft described abortion as ‘‘an atrocity against the future.’’ 14

• Speaking at the National Right to Life Committee’s annual convention, Ashcroft

said that abortions contributed to a ‘‘vacuum of values’’ among American youth. ‘‘What kind of signal are we as a society sending them about the value of life? We

need to send an unmistakable message that there is a fundamental value in life

itself . . . . The Roe decision is simply a miserable failure . . . . And I hope that

the Supreme Court announces it is overturning the Roe decision and giving back

to the states the right to make public policy.’’ 15

• Praising the U.S. Supreme Court decision in Webster, Ashcroft commented, ‘‘By

beginning the dismemberment of Roe vs. Wade, the Supreme Court gives the American people greater ability to save innocent lives. That’s something Missourians take

very seriously.16

1990

• Ashcroft urged legislators to prohibit women from obtaining more than one

abortion in their lifetimes.’’ 17 He stated, ‘‘History someday is going to say, ’This

butchering of women and children is the wrong way to manage family size.’ ... A vast, overwhelming majority of Missourians—even if they do not all feel the same

about all abortions—feels strongly that the use of abortions has gone much too far

and that many abortions are now performed for reasons that are unacceptable.’’ 18

• Ashcroft refused to intervene on behalf of activists who were denied access to

retail stores while seeking signatures for an abortion rights ballot initiative, even

though he personally requested that the stores give special permission to petitioners

for an ethics initiative that Ashcroft sponsored.19

• Ashcroft vetoed nearly $1 million in appropriations for Missouri’s overburdened

foster-care system, even though he supports tight abortion restrictions, which make

such care all the more necessary.20

1991

• At a Clergy for Life Dinner, Ashcroft boasted of Missouri, ‘‘No state has had

more abortion related cases that reached the United States Supreme Court and be

decided by the Supreme Court.’’ 21

• Ashcroft supported a bill that would have outlawed abortions performed for 18

different reasons, including:

• to prevent multiple births from the same pregnancy;

• to prevent the loss or deferment of an educational or employment opportunity;

• because of nonuse or failure of birth control;

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22 1991 MO SB 339; Virginia Young, Key ‘‘No’’ Vote is Just One Obstacle to Passing 1991 AntiAbortion Bill, ST. LOUIS POST–DISPATCH, Mar. 28, 1991, 1 C. 23Martha Shirk, Urban Families: How They Have Fared Under Ashcroft, ST. LOUIS POST– DISPATCH, Mar. 1, 1992. 24Missouri NARAL and Planned Parenthood of the St. Louis Region, John Ashcroft Fact

Sheet (on file with NARAL). 25 Ellen Debenport, Senate Postpones Vote on Abortion, ST. PETERSBURG TIMES, Nov. 9,

1995, 3A. 26 Nickles motion to waive the Chafee point of order and Smith motion to instruct Senate conferees to adopt House-passed language to the Balanced Budget Reconciliation Act of 1995, S

1357, 10/27/95. 27Keith White, GANNETT NEWS SERVICE, May 11, 1995; NARAL, 1995 Congressional

Record on Choice. 28Deborah Mathis, Religion-But Not Religious Groups-Drive Ashcroft, GANNETT NEWS

SERVICE, July 17, 1996. 29 ‘‘Partial-Birth’’ Abortion Ban Act of 1997, S 6; ‘‘Partial-Birth’’ Abortion Ban Act of 1995, S

939. 30Kerrey amendment to the Balanced Budget Act of 1997, S 947, 6/25/97. 31 John Godfrey, Rush to Adjournment Precludes Satcher Vote; Lott Expects Confirmation Next

Year, WASHINGTON TIMES, Nov. 14, 1997, A12.

• to avoid the expense or legal responsibility for childbearing or rearing; • to prevent having a child not deemed to be wanted by the woman or ‘‘father’’; • because of financial reasons; • because of cosmetic reasons; • because of a change in life-style or to maintain any particular life-style; • to avoid single parenthood; • to avoid perceived damage to reputation; • to prevent the birth of a developmentally handicapped child; • to avoid marital difficulty; • to limit family size; and • for a reason of social convenience.

The bill, which carried criminal penalties, would have required the physician to

obtain an affidavit from the woman stating the reasons she is seeking an abortion.

Ashcroft called state Senator Marvin Singleton, the swing vote on the committee

considering the bill, to urge him to support it, but Singleton voted against the legislation because it lacked an exception for cases of rape and incest.22

1992

• Ashcroft refused to appropriate funds for family planning services in Missouri

beyond those required by federal law.23

1994

• Missouri Right to Life praised Ashcroft for help[ing] Missouri become one of the

premier states in the battle for the sanctity of life.24

1995–Senator • During Senate debates on banning so-called ‘‘partial-birth’’ abortion, Ashcroft

called talk of preserving the woman’s life ‘‘rhetorical’’ nonsense.25

• Ashcroft voted against the repeal of the discriminatory Hyde amendment that

bans Medicaid coverage for abortion services for low-income women except in cases

of rape, incest, or life endangerment.26

• During the hearings for the nomination of Dr. Henry Foster for Surgeon General, whose nomination never received a floor vote, Ashcroft said, ‘‘Very frankly, the

optimal candidate for this responsibility should not be someone who has committed

abortions because there is a large group of individuals in this country for whom a

person who has committed abortions cannot be a real leader.’’ 27

1996

• Ashcroft stated, ‘‘Does my religious belief affect the way I do politics and government? It affects virtually everything I do, I hope.28

1997

• As in 1995, Ashcroft again cosponsored legislation to criminalize safe abortion

procedures used prior to fetal viability.29

• Ashcroft voted to ban access to abortion services except in cases of rape, incest,

or life endangerment for those enrolled in a new children’s health program, writing

into permanent law for the first time the discriminatory Hyde Amendment.30

• Ashcroft opposed the confirmation of Dr. David Satcher as Surgeon General in

part because Satcher opposed a ban on so-called ‘‘partial-birth’’ abortion. Ashcroft

said, ‘‘It is shocking that the nominee for surgeon general . . . would associate himself with partial-birth abortion . . . . In so doing, he chooses . . . barbarity over

the judgment of medicine.’’ 31

• At a Christian Coalition convention, Ashcroft said, ‘‘To the so-called leaders who

say abortion is ’too politically divisive,’ let me be clear . . . . Confronting our culVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00301 Fmt 6601 Sfmt 6621 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
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32David Goldstein, Ashcroft Mixes Religion, Action in Pitch to Christian Coalition, KANSAS

CITY STAR, Sept. 14, 1997, A24. 33Senator John Ashcroft, Speech to the Conservative Political Action Conference Annual

Meeting, ‘‘On Judicial Despotism,’’ Mar: 6, 1997, http://www.reagan.com/HotTopics.main/

HotMike/document-4.18.1997.6.html. 34Meet the Press (NBC television broadcast, Apr. 19, 1998). 35SJ Res. 49, 1998. 36Letter signed by Senator John Ashcroft et al., to Senator Ben Nighthorse Campbell,

Subcomm. on Treasury, Postal Service and General Government (Sept. 4, 1998) (on file with

NARAL). 37 Human Life Act of 1998, S 2135. 38Putting Parents First Act of 1998, S. 2380. 39Government Press Release, Federal Document Clearing House, Ashcroft Proposal Affirms

Role of Parent, Requires OK for Abortions, Contraceptives (July 16, 1998). 40Government Press Release, Federal Document Clearing House, Ashcroft Bill Affirms Parents’ Role in Critical Choices by Children (July 30, 1998). 41Government Press Release, Federal Document Clearing House, Ashcroft Announces Events

for Week of March for Life (Jan. 15, 1998). 42Senator John Ashcroft, Prepared Remarks, Roe v. Wade: Has it Stood the Test of Time?

(Jan. 21, 1998) (congressional testimony).

tural crises is the true test of our courage and true measure of our leadership. It

is time for us to reacquaint our party with the politics of principle. We must not

seek the deal, we seek the ideal.32

• In a speech on ‘‘judicial despotism,’’ Ashcroft said: 33

• ‘‘[C]onsider 1992 when the court challenged God’s ability to mark when life begins and ends. Three Reagan appointees joined the majority in Planned Parenthood

of Southeastern Pennsylvania v. Casey to uphold a ‘woman’s right to choose.’ So

much for recapturing the court. Together, Roe, Casey and their illegitimate progeny

have occasioned the slaughter of thirty-five million children, thirty-five million innocents denied standing before the law.’’

• ‘‘As Judge Bork asserts, the abortion rulings represent ‘nothing more than the

decision of a Court majority to enlist on one side of the culture war.’’ ’

1998

• When asked, ‘‘. . .[O]ne choice, cut taxes or outlaw abortion-what would you

do?’’ Ashcroft replied, ‘‘Outlaw abortion.’’ 34

• Ashcroft, along with Senators Helms and Smith, cosponsored a resolution calling for an amendment to the U.S. Constitution to ban abortion even in cases of rape

or incest.35 The amendment also would outlaw several of the most common contraceptive methods.

• Ashcroft co-signed a letter expressing opposition to a Senate amendment to require that the Federal Employee Health Benefits Plan (FEHBP) cover the cost of

FDA-approved contraceptives, citing concern that it would fund abortifacients.36

• Ashcroft, along with Senators Helms and Smith, cosponsored legislation that

declares that life begins at fertilization and would therefore outlaw abortion-as well

as some of the most common contraceptive methodsexcept in cases of life

endangerment.37

• Ashcroft proposed the Putting Parents First Act of 1998, which would require

minors to obtain parental consent for abortion referrals or contraceptives in any facility receiving federal funds.38 In promoting the bill, Ashcroft said, ‘‘When federal

dollars fund programs that provide children with contraceptives or refer them to

abortionists the critical role of parents must be recognized and respected ....

These critical life decisions are the business of parents, not bureaucrats. Parents

must not be reduced to the status of mere bystanders when their children are facing

these difficult decisions. The law must put parents first.’’ 39 Ashcroft also stated,

‘‘How disturbing that a child’s only source of advice can be a bureaucrat or abortion

clinic employee.’’ 40

• On the 1998 anniversary of Roe v. Wade, Ashcroft marched with Missouri Right

to Life in the National March for Life.41 In a speech entitled ‘‘Roe v. Wade: Has it

Stood the Test of Time?’’ Ashcroft said: 42

• ‘‘As a legal matter, the absence of any textual foundation for the ‘trimester’

framework established in Roe has resulted in an abortion jurisprudence that is

marked by confusion and instability. It demonstrates the dangers of building a legal

framework on the quicksand of judicial imagination, rather than the certainty of

constitutional text.’’

• ‘‘The current constitutional standard permits restrictions on abortion only if

they do not place an ‘undue burden’ on the right to an abortion. Tragically, it is a

standard which gives the Court discretion to authorize the destruction of innocent

human life.’’

289

43 American Life League, Press Release, Big Abortion Group Seeks to Defame ALL, Jan. 3,

2001, http://www.all.org/news/010103.htm; American Life League, Birth Control: The Abortion

Connection, http://www.all.org/issues/bcOO.htm (last visited Jan. 12, 2001). 44 Bill Lambrecht and Patrick Wilson, Abortion Activists Vow to Stress Moral Issues, ST.

LOUIS POSTDISPATCH, Jan. 23, 1998, A4. 45Lambrecht and Wilson, Abortion Activists Vow to Stress Moral Issues. 46Liz Szabo, Senator Focuses on Themes of Faith, Family and Politics, VIRGINIAN–PILOT

& LEDGERSTAR, May 10, 1998, B1. 47Who is John Ashcroft? And Why are Leaders of the Christian Right Saying Such Nice

Things About Him? CULTURE WATCH (June 1998), http://www.igc.apc.org/culturewatch/

issue53.htmi. 48Terence Jeffrey, Ashcroft Affirms He is 100% Pro-Life, HUMAN EVENTS MAGAZINE, May

29, 1998. 49 Ed Anderson, Quayle Slams Clinton at State GOP Convention, TIMES–PICAYUNE, Mar.

8, 1998, A13. 50 Harkin/Boxer non-binding resolution to ‘‘Partial-Birth’’ Abortion Ban Act of 1999, S 1692,

10/21 /99. 51Senator John Ashcroft, Barbaric Practice, CONGRESSIONAL PRESS RELEASES, Oct. 21

, 1999. 52Letter signed by Senator John Ashcroft et al., to Senator Ben Nighthorse Campbell,

Subcomm. on Treasury, Postal Service, and General Government (June 21, 1999). 53Schumer amendment to Bankruptcy Overhaul (Senate Judiciary Committee), S 625, 4/27/

99. Although he voted for the amendment on the floor, 80 Senators did so, and the vote may

not have been fully reflective of some Senators’ opposition to clinic violence. Vice President Gore

had arrived to break any tie vote, and Republican leaders counseled an ‘‘Aye’’ vote so as to avoid

public embarrassment, on the promise that the amendment would be killed later.

• ‘‘Regrettably, the damage that Roe has wrought on the culture and the Constitution has not been confined to the realm of abortion. To buttress Roe as constitutional law, the courts have created exceptions to individual rights that—unlike abortion—are constitutionallyprotected.’’

• ‘‘The poetry springs from the growing network of crisis pregnancy centers giving

women alternatives to the destruction of fragile life. Millions of Americans have

heard the silent cries for help, and are responding.’’

• Ashcroft received an award from the American Life League, an extremist antiabortion and anti-contraception group.43

• During Ashcroft’s bid for the Republican nomination for the presidency: 44

• ‘‘Ashcroft carried a Missouri Right to Life banner at a meeting with abortion

opponents.’’

• Ashcroft likened the fight to end legal abortion to the civil rights movement of

the 1960s. ‘‘We have the most noble and worthy objective that we could have.’’ 45

• Ashcroft suggested that American leaders should pursue a religious agenda,

stating, ‘‘if only our government had a heart closer to God’s.’’ 46

• Ashcroft said, ‘‘They say you can’t legislate morality. . . well, you certainly

can.’’ 47

• Ashcroft stated, ‘‘Throughout my life, my personal conviction and public record

is that the unborn child has a fundamental individual right to life which cannot be

infringed and should be protected fully by the 14th Amendment.48

• Ashcroft said, ‘‘On moral issue after moral issue, the Congress has cut and run,

when we needed to stand and lead . . . . We must start by voting to defend innocent human life. God’s precious gift of life must be protected in law and nurtured

in love.’’ 49

1999

• Ashcroft voted in favor of overturning Roe v. Wade and denying a constitutional

right to safe and legal abortion services.50

• In reference to so-called ‘‘partial-birth’’ abortion, Ashcroft said, ‘‘. . . this procedure is never necessary to save the life and preserve the health of the unborn child’s

mother.’’ 51

• Ashcroft co-signed another letter expressing opposition to a Senate amendment

to require that the Federal Employee Health Benefits Plan (FEHBP) cover the cost

of FDA-approved contraceptives, citing concern that it would fund abortifacients.52

• Ashcroft voted against an amendment to prevent persons who commit acts of

violence or harassment at reproductive health care facilities from using bankruptcy

proceedings to avoid paying the damages, court fines, penalties, and legal fees levied

against them as a result of their illegal activities.53

2000

• In response to Ashcroft’s nomination for Attorney General, Jim Sedlack, director

of public policy for the American Life League (ALL), commented, ‘‘We are very

pleased . . . . He is one of the people who consistently supports our positions.’’ ALL

290

54David Lightman, Ashcroft Satisfies GOP Right; Attorney General Choice Known for Conservatism, HARTFORD COURANT, Dec. 23, 2000, A1; American Life League, Press Release,

Big Abortion Group Seeks to Defame ALL, Jan. 3, 2001, http://www.all.org/news/010103.htm;

American Life League, Birth Control. The Abortion Connection, http://www.all.org/issues/

bcOO.htm (last visited Jan. 11, 2001); American Life League, Press Release, ALL Campaigns

to Stop Wal-Mart’s Abortion Referral Service, June 9, 2000, http://www.all.org/news/000609.htm. 55Free Congress Foundation, Press Release, Grassroots Endorsements of Senator John

Ashcroft’s Nomination to be United States Attorney General (Jan. 5, 2001), http://

freecongress.org/press/releases/01 0105-list.htm.

calls the Freedom of Access to Clinic Entrances Act ‘‘preposterous’’ and believes

birth control pills are abortifacients, calling them ‘‘baby pesticides.’’ 54

2001

• Over 100 conservative organizations endorsed Ashcroft for U.S. Attorney General, including: American Conservative Union, Americans United for the Unity of

Church and State, Center for Reclaiming America, Christian Coalition, Citizens for

Traditional Values, Concerned Women for America, Eagle Forum, Family Research

Council, Focus on the Family, Human Life Alliance, and Young America’s Foundation.55

Chairman LEAHY. Thank you, Ms. Michelman.

Ms. Feldt, you are one not unaccustomed to testifying before the

Congress. Good to have you here.

STATEMENT OF GLORIA FELDT, PRESIDENT, PLANNED PARENTHOOD FEDERATION OF AMERICA, NEW YORK, NEW

YORK

Ms. FELDT. Thank you very much, Chairman Leahy and Senator

Hatch, and all Senators. I am really honored to be here, particularly to follow upon the testimony of Ronnie White, I must say,

very relevant to what we are talking about now.

I also have a little confession to make. Yesterday, Mr. Ashcroft

disclosed to you that he and I—yes, I was the one who had talked

with him about armadillos and skunks.

The real point of that exchange, however, was to say that I agree

with him that it is very important to act upon your convictions.

And he and I have both spent over 25 years of our lives acting

upon our convictions. But can you just wash away 25 years of passionate activism? I know I certainly could not.

I want to believe Mr. Ashcroft when he says he accepts Roe v.

Wade as the law of the land, but his career stands in sharp contrast to his statements this week. Since past behavior is the best

predictor of future performance, I am very worried.

John Ashcroft’s beliefs are his own private business, but what he

does about his beliefs are everybody’s business. His career in government is noteworthy for his crusade to enact into law his belief

that personhood begins at fertilization. This belief defies medical

science.

As a U.S. Senator, you know that he sponsored the most extreme

version of the anti-choice human life amendment which would have

written his belief into the Constitution. As Governor of Missouri,

he signed the legislation declaring his belief to be the policy of the

State. And he opposed contraceptive coverage for Federal employees because some of the contraceptives would have acted or could

have acted after fertilization. Indeed, he never voted to support

family planning at all.

The fundamental right to choose declared in Roe stands on the

earlier Griswold v. Connecticut decision, which protected the right

291

to contraception. Both are based on the fundamental human and

civil right to privacy in making child-bearing decisions.

Mr. Ashcroft’s crusade would not only outlaw abortion but most

common methods of contraception as well, and unless Mr. Ashcroft

is prepared to walk away from the keystone of his entire political

career, then as Attorney General he would be in a unique position

to impose his definition of personhood as fertilization. This could

not only strike at the right to abortion but also contraception. An

anti-choice President plus John Ashcroft plus a Supreme Court

they help shape equals a recipe for disaster.

You have asked whether Mr. Ashcroft would enforce the Freedom

of Access to Clinic Entrances Act. He says that he will enforce the

law, and that is necessary but not sufficient. It takes leadership

and prevention, and here is the difference: In the late 1980’s,

hordes of demonstrators repeatedly stepped over the lines of legal

protest at our centers. I personally received a long series of telephone death threats, both at home and at work. Our doctors were

stopped day and night. Our health centers received numerous bomb

threats. I went to the chief of police, and he said, ‘‘Close the clinic.’’ There was a sea change after FACE, and with an Attorney General committed to vigorous enforcement. It is not just about enforcing the law after violence has occurred, you see, because all around

the country U.S. attorneys brought together various law enforcement agencies. Collaboration and cooperation became expectation.

U.S. Marshals not only answered our phone calls, they started calling us to ask if they could help with preventive measures. Murders

and violent acts nationwide were cut in half as a result.

Paula Gianino, CEO of our St. Louis Planning Parenthood affiliate, tells me that in John Ashcroft’s tenure as the Attorney General and as the Governor of Missouri, he did not once take a public

leadership stand against clinic violence. Her staff could not find in

the media nor any individual who remembers Mr. Ashcroft speaking out on clinic violence, even when Reproductive Health Services

was firebombed, causing $100,000 worth of damage in 1986.

Senator Ashcroft has said that he is proud Missouri brought

more anti-abortion cases to the Supreme Court than any State. He

said that outlawing abortion is more important to him than cutting

taxes and that if he could only pass one law, it would be to outlaw

abortion. How can he turn that spigot off? And if he can, what does

that say?

I want to close by talking to you not as Senators but as men and

women—none of the women are here today, I am sorry to say—who

care deeply about the Nation and its people. This nomination represents something bigger than Presidential discretion, bigger than

senatorial courtesy, bigger even than your personal friendships.

This is about a fundamental human and civil right, to determine

whether you believe women have the moral authority to run their

own lives, to make their own child-bearing decisions. So I ask you

to listen to your inner voices and think about what you will say to

your daughters and your granddaughters.

How will you explain to future generations if John Ashcroft uses

the power of his office to deny the women you know and love reproductive the choices, the right to our own lives?

Thank you very much.

292

1Planned Parenthood Federation of America. January 2000. This is Planned Parenthood [Brochure]. 2 Ibid

3 Ibid

4 AGI—The Alan Guttmacher Institute. (1999, accessed 2000, January 16). Contraception

Counts: Stateby-State Information [Online]. http://wwwagi-usa.org/pubs/ib22.html. 5 NARAL—National Abortion and Reproduction Action League. (Accessed January 16, 2001). ‘‘John Ashcroft: A Chronology ofAssaults on Women’s Reproductive Rights.’’ [Online] http://

naral.org/mediaresources/fact/ash— chron.html 6 Cunningham, G., MacDonald, p., Gant, N., et.al, eds. (1997). Williams Obstetrics, 20’’ Edition. Stamford, CT: Appleton & Lange

Hughes, E. (1972). Obstetric-Gynecologic Terminology with Neonatology And Glossary of Congenital Anomalies. Philadelphia, PA: F. A. Davis Company. 7 Human Life Amendment of 1998, S 2135.

[The prepared statement of Ms. Feldt follows:]

STATEMENT OF GLORIA FELDT, PRESIDENT OF PLANNED PARENTHOOD FEDERATION OF

AMERICA

Good morning. My name is Gloria Feldt. I am president of Planned Parenthood

Federation of America, the nation’s largest and most trusted provider of reproductive health care and education. Each year, nearly five million women, men, and

teenagers receive reproductive health services at the 875 centers operated by the

Planned Parenthood network of 127 affiliates, serving communities in 48 states and

the District of Columbia.1

Planned Parenthood is widely recognized as one of the country’s major providers

of abortion services, including both surgical and medical abortion, and we are proud

of the important role we play in making abortion accessible to the women who need

it in settings that are dignified and compassionate. However, as our name indicates,

at the core of Planned Parenthood is family planning, comprising more than 90%

of the services we provide.2 By family planning, I mean contraception and accompanying health care, including annual physicals and cancer screenings, and counseling and information that give people the means to make their own responsible

choices. Each year, we prevent an estimated half-million unintended pregnancies

through these services, and it should go without saying that preventing unintended

pregnancies also prevents abortions.3 And remember, that number just represents

Planned Parenthood. Nationwide, family planning services prevent millions of unintended pregnancies a year 4, and also help prevent sexually transmitted infections

and a wide range of other health problems. Taken together, family planning services

have a profound positive effect on the lives and health not only of the women of

this country, but their families, their children. . .in fact, just about every one of us.

For a woman to be able to determine her own destiny requires that she be able

to control the timing and extent of her childbearing and the integrity of her own

body. The ability to make these decisions without government interference and regardless of geography, economic circumstance, or political considerations, is the

most fundamental civil and human right. That’s why Planned Parenthood is so

deeply concerned about Senator Ashcroft’s record of attempts to interfere with the

right of Americans to make these decisions, and by the genuine threat his confirmation as attorney general would represent to the rights of all Americans.

As a senator, John Ashcroft failed to cast a single vote in favor of family planning

services.5 And remember, I’m not talking about abortion here; I’m talking about preventive care. More significantly, his actions and statements over time with regard

to choice and family planning represent no mere commentary on policy decisions of

the day, but rather illustrate deeply held beliefs that put him at odds with the overwhelming majority of Americans who want and need reproductive health and family

planning services free from government interference.

Taking one of the most extreme positions among those who oppose a woman’s

right to make her own reproductive choices, John Ashcroft actually believes that

personhood begins before pregnancy, at the moment that sperm meets egg, the moment of fertilization. He holds this belief in spite of the fact that it contradicts the

medically accepted definition of pregnancy as the time when a fertilized egg is implanted in the uterine wall—the moment of conception.6

Planned Parenthood does not oppose Senator Ashcroft’s appointment because of

his personal beliefs; we oppose him because of his record of using his positions of

governmental authority to enact his views into law, and thereby to impose those

views on all citizens. Cases in point: John Ashcroft has sponsored the most extreme

version of the so-called ‘‘Human Life Amendment,’’ 7 which would have given his

personal ideology based definition of pregnancy the force of law by declaring that

293

8 NARAL—National Abortion and Reproduction Action League. (Accessed January 16, 2001). ‘‘John Ashcroft: A Chronology of Assaults on Women’s Reproductive Rights.’’ [Online] http://

naral.org/mediasources/fact/ash chron.html 9 Ashcroft, John (Dear Colleague Letter to Treasury, Postal Service and General Government,

September 4, 1998) 10Griswold v. Connecticut, 381 U.S. 479 (1965). 11Federal Bureau of Investigation. (Accessed January 16, 2001). ‘‘Freedom of Access to Clinic

Entrances.’’ [Online] http://www.fbi.gov/programs/civilrights/face.html

NARAL—National Abortion and Reproduction Action League. (Accessed January 16, 2001).

‘‘Freedom ofAccess to Clinic entrances (FACE).’’ [Online] http:// www.naral.org/mediasources/

fact/freedom/html

life begins at fertilization. When he was governor of Missouri, he signed into law

legislation declaring that it is the policy of Missouri that life begins at fertilization.8

And he was one of eight senators to sign a ‘‘dear colleague’’ letter opposing a Senate

amendment requiring that federal employees get the same coverage for contraceptive drugs and devices that they receive for other prescription drugs and devices.

In the letter, they said, ‘‘We are concerned with what appears to be a loophole in

the legislation regarding contraceptives that, upon failing to prevent fertilization,

act de facto as abortifacients.’’ 9

The practical, and intended, result of these and similar efforts would be not only

the criminalization of abortion as we know it, but also of some of the most commonly used and effective methods of contraception, such as the birth control pill,

which frequently acts to prevent implantation of the fertilized ovum.

You will hear testimony today about the fear that, as attorney general, Senator

Ashcroft would try and perhaps succeed in turning back the clock on Americans’ re- productive rights by eliminating the right to choose abortion. Let us not forget that

the fundamental right to abortion declared and protected by Roe and Casey stands

on the earlier Griswold v. Connecticut decision, which protected the closely linked

and equally fundamental right to contraception.10 Both are based on the fundamental right to privacy in making childbearing decisions. Senator Ashcroft’s record demonstrates that he will use the power of government to impose on citizens his view

that personhood begins at fertilization. To the extent that he is able to do so, he

will not only strike at the right to abortion, he will strike at the right to contraception. The attorney general has an unparalleled ability, by virtue of his roles as legal

advisor to the U.S. president and head of the Department of Justice, to influence

the legislative agenda of the nation. I am truly hard pressed to understand how

anyone would voluntarily grant that level of power and influence to an individual

who has so single-mindedly pursued a personal ideological agenda, while ignoring

not only medical facts but also the rights and health of millions of Americans in

the process.

Yes, I am deeply concerned by what Senator Ashcroft might do as attorney general to change laws that now keep family planning and reproductive health services

available to the majority of Americans who want and need them. He has demonstrated throughout his career his willingness to go to great lengths to push for

laws and court decisions that reflect his personal ideological and religious views

even when his views would override the deeply held views of the majority. I respect

his right to hold those views, and I would fight for his right to hold them. But he

has no right to impose them on the rest of us in this pluralistic democracy.

As concerned as I am about some of the things an Attorney General Ashcroft

might do, I am equally concerned about some of the things he might not do.

As the nation’s chief law enforcement officer, the attorney general has the ability

and the responsibility to vigorously enforce laws designed to protect both providers

and recipients of reproductive health services, while deterring and punishing those

who employ criminal means to prevent access to those services.11 Chief among these

laws is the Freedom of Access to Clinic Entrances Act, which prohibits persons from

using force, threat of force, or physical obstruction to intentionally injure, intimidate, or interfere with persons because they are obtaining or providing reproductive

health services. The law also bars persons from intentionally damaging or destroying the property of a facility because the facility provides reproductive health services.

When the law act was passed in 1994, it came not a moment too soon. Those of

us involved in the provision of reproductive health services are a hardy lot; we’ve had to be. But there’s a limit to what anyone can or should have to endure, and

the stunning litany of violent assaults, arson incidents, bombings and attempted

bombings, vandalism, stalking, and physical intimidations that went on before the

law was enacted would be enough to petrify the bravest of battle-tested warriors,

never mind the innocent young men and women both seeking and providing these

services across the country. Make no mistake; the opponents of reproductive choice

294

12 NAF—National Abortion Federation. (2000, accessed 2000, January 16). NAF Violence and

Disruption Statistics: Incidence of Violence & Disruption Against Abortion Providers [Online].

http://www.prochoice.org/ default7.htm. 13 United States v. Kelly, (1999).

take their business seriously. Individuals have been threatened; people have been

injured; people have been killed—many of them employees and volunteers at

Planned Parenthood health center and at other providers throughout the country.

The good news is that passage of the Freedom of Access to Clinic Entrances act

in 1994 was rewarded by a precipitous fall in the major categories of criminal violence outside health centers compared to the five years previous: the number of

murders of medical staff dropped by 40%; attempted murders fell by 45%; arson

dropped by 62%; and attempted arson and bombings fell by 48%. Incidents of harassment, disruption, and blockades also showed a decline.12

The critical factor in the reduction in violence against health care providers was

the active and vigorous pursuit and enforcement of the law by the Department of

Justice, under the leadership of the attorney general, in cooperation with local law

enforcement. By committing the necessary resources and support essential to apprehending and prosecuting perpetrators, the department sent a zero-tolerance message to would-be arsonists, bombers, and murderers.

To be sure, the most violent incidents, especially those involving the loss of life,

are the ones that have garnered the most attention and still stand out in our hearts

and minds. We must never forget the names of those who sacrificed their very lives

at the hands of extremists—names like Dr. David Gunn, Dr. John Bayard Britton

and his volunteer escort, James H. Barrett, Shannon Lowney and Leanne Nichols,

two beautiful young women who worked as receptionists; Officer Robert Sanderson,

an off-duty police officer killed during the first fatal bombing of a U.S. abortion clinic; and Dr. Barnett Slepian, killed by a sniper’s bullet fired through a window of

his home in 1998.

We remember each and every one of those individuals, and we remember their

families and what they have lost. But it would be a mistake to think that it’s just

those who commit the most violent of acts who must be pursued using every resource and legal avenue. For the reality is that in almost every case, the perpetrators of arson, bombings, and similar acts of violence and destruction had, at an earlier time, been involved in threats, harassments, and other acts of intimidation, and

only later did they ‘‘graduate’’ to the more infamous violent crimes whose victims

we now must sadly mourn.

James Charles Kopp, the killer of Dr. Barnett Slepian, is a case in point. Prior

to murdering Dr. Slepian in 1998, he was arrested eight times in as many parts

of the country for blocking entrances to clinics. And just as Senator Ashcroft has

not differentiated between family planning and abortion, ‘‘family planning-only’’ clinics and places where abortions are also performed as targets for his legislative

and other activist efforts, neither have the perpetrators of violence. Family planning

clinics have been the targets of threats, vandalism, and bombings, too.

And let’s be perfectly clear: the law may say that access to family planning and

reproductive health services is a basic right; it may say that the provision of these

services is legal and protected; and the law may even specify that it is illegal to

interfere with access to family planning and reproductive health services. But if

those laws are not vigorously enforced by the Department of Justice; and if providers are too scared for their lives to offer the services; and if Americans are too afraid

to access them, then all of the laws will be nothing but empty vessels.

As leaders in the public eye, I’m sure you know more than a little bit about what

it means to be out there in a world where there’s always someone who doesn’t agree

with you on something, and occasionally that someone has a scary way of telling

you so. Like you, I get letters from average Americans on a daily basis expressing

their views on our issues. Fortunately, the vast majority of them take a calm tone.

In fact, most of the letters we receive are thank-you notes, expressing gratitude for

ways in which Planned Parenthood improved the authors’ lives through services we

provided. Then there are the other letters. I’ll readjust a few lines of one.

‘‘You people will pay personally for what you are doing . . .I will support every

terrorist possible to end the bloodshed that you have and are bringing upon the

white race . . .I won’t be as dramatic and sloppy as a Tim McVeigh . . .your money

has not prevented those pigs from being killed . . .neither did the laws, or the pigcops who protect you. . .’’

A Department of Justice investigation revealed that John Kelley, the man who

wrote the letter I just quoted from, had a past history of both of protesting at clinics

and stalking women.13 The FBI moved aggressively to identify and arrest him, and

in September 1999, he pled guilty to sending threatening e-mail messages to reproVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00308 Fmt 6601 Sfmt 6621 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
295

ductive health care providers in New York and Georgia and was sentenced to 16

months in prison. Believe me when I tell you that I can’t help but wonder what he

might try next time, and whether he’ll be pursued as vigorously as the last time.

And there are so many other John Kelleys out there, waiting for their chance,

watching what we do. . .watching what you do.

That’s why the role of attorney general is so critical in vigorously enforcing the

law and pursuing the John Kelleys of this country, and why the possibility of a John

Ashcroft as attorney general has me and so many others afraid, not just for our

rights, but for our very lives.

The best way to predict how John Ashcroft would act as U.S. attorney general

is to look at his performance in Missouri when he held office there. During the time

that John Ashcroft was attorney general and then governor of Missouri, he failed

to respond to the increase in anti-choice intimidation, harassment, and violence at

Missouri reproductive health clinics. A particular example was his reaction to the

devastation by arson of a clinic operated by Reproductive Health Services, now part

of Planned Parenthood, in June 1986 in Manchester, Missouri. Despite our best efforts to find a single public statement from him at that time, it appears that he said

absolutely nothing.

Throughout his career, John Ashcroft has fought hard for the things he believes

in. By itself, that is a quality each one of us can and should admire. But he has

taken his fight to the point of using his power and positions to impose his beliefs

on every one of us, and that we should not and must not accept. He also has failed

to fight for the rights of those with whom he disagrees, especially when the disagreement concerns the very nature of human and civil rights. That, too, we should

not and must not accept. As attorney general, John Ashcroft would have the responsibility to put aside his personal beliefs and use every resource at his disposal to

vigorously enforce the laws that protect the rights, the health, and the very lives

of all Americans. Based on his record, we simply do not believe he will do that, and

that is why we hope he will not be confirmed. Thank you.

PLANNED PARENTHOOD APPOINTMENTS WATCH

NAME: FORMER SEN. JOHN ASHCROFT

POSITION: ATTORNEY GENERAL

PPFA POSITION: AGAINST

KEY AREAS OF CONCERN

• The Attorney General plays a critical role in the selection of federal judicial

nominees. The Justice Department is responsible for selecting, screening and recommending judicial nominees for appointment to federal district and appellate

courts throughout the country as well as for the Supreme Court. Given the large

number of vacancies on the federal bench, at both the district and appellate level,

the Attorney General can have a significant impact on the federal court system for

many years.

• As our country’s lead prosecutor, the Attorney General is responsible for the enforcement of federal laws protecting women’s reproductive freedom, including the

Freedom of Access to Clinic Entrances Act (FACE). Besides criminal enforcement of

FACE, the Attorney General, along with State Attorneys General, may initiate civil

FACE actions resulting in injunctive relief and monetary penalties.

• The Attorney General is the legal advisor to the President and all the executive

branches of government. In particular, the Justice Department provides legal advice

to the executive branch on all constitutional questions. The Justice Department also

reviews pending Congressional legislation for constitutionality. Given Mr. Ashcroft’s

opposition to Roe v. Wade, it is possible that a Justice Department under his direction might consider nearly any ban or restriction on abortion to be constitutional.

• The Attorney General will also represent the Bush Administration’s position on

issues within the courts—including the Supreme Court. Through the Office of the

Solicitor General, the Attorney General represents the United States in the Supreme Court.

ASHCROFT’S LEGISLATIVE RECORD DEMONSTRATES HIS EXTREME POSITIONS

John Ashcroft was one of the fiercest opponents of abortion rights during his tenure in the U.S. Senate. As a Senator, he supported the Hyde Amendment, which

prohibits the use of federal funds for abortion services as well as laws that might

have banned common and safe forms of birth control. He was one of the few elected

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public officials to defend and accept an award from the American Life League, a

radical right-wing group opposed to all abortions for any reason.

Planned Parenthood Action Fund gave Ashcroft a 100% anti-choice rating while

he was in office. He is extreme, and his positions are out of line with mainstream

America. Ashcroft has a clear history of anti-choice positions that demonstrate why

he should not be Attorney General:

Ashcroft Opposed Roe v. Wade—As recently as October 1999, Ashcroft voted

against an amendment restating the principles of Roe v. Wade and declaring that

the Roe decision was appropriate, Constitutional, and should not be overturned or

narrowed. (Roe v. Wade Resolution 10/21/99)

Ashcroft Sponsored the Human Life Amendment—In 1998, Ashcroft sponsored S.J.

Res. 49, the so-called ‘‘Human Life Amendment,’’ and S. 2135, the so-called ‘‘Human

Life Act,’’ which stated that a fetus is a human being from the moment of fertilization and banned abortions (even in cases of rape and incest) ‘‘as long as [the law

authorizing such procedures] requires every reasonable effort be made to preserve

the lives of both of them.’’ (Human Life Act of 1998)

Ashcroft Sponsored Legislation Potentially Banning the Birth Control Pill—The

definition of life as beginning at ‘‘fertilization’’ as used in the ‘‘Human Life Amendment’’ raised the prospect that such a law or amendment would bar the use of many

of the most effective and popular means of birth control. The position that birth control pills and IUDs are abortifacients is a primary tenet of the American Life

League, an organization from which Ashcroft received an award for his anti-choice

activities. (Human Life Act of 1998)

Ashcroft Opposed Legislation Guarantying That Clinic Violators Pay Their Fines—

Ashcroft voted against an amendment that would have prevented perpetrators of violence or harassment at reproductive health care clinics from declaring bankruptcy

to avoid paying the damages and court fines levied against them as a result of their

illegal activities. (Amendment to Bankruptcy legislation (S. 625), in committee)

Ashcroft Opposed Medically Accurate Sex Education—Instead of supporting responsible, medically accurate sexual education programs that provide information

about all options relating to reproductive health, including abstinence, so that teens

may make informed decisions, Ashcroft voted to earmark $75 million in fund for abstinence only education. (Vote to allow $75 million to be earmarked for abstinence

only education 7/23/96)

ROLE IN LEGISLATION

The Justice Department reviews pending Congressional legislation for constitutionality. Examples of legislation proposed in the 106‘’’ Congress that the Justice

Department might have reviewed include the so-called partial birth abortion ban,

the Unborn Victims of Violence Act, the Child Custody Protection Act as well as appropriations riders, including bans on research relating to mifepristone, whether

women can use their own money on military bases to get abortions, and whether

women in prison can use their own money to get abortions.

CONCLUSION: ASHCROFT PUTS WOMEN’S CONSTITUTIONALLY PROTECTED RIGHTS IN

JEOPARDY

One only has to understand the scope of the Attorney General’s office to understand why Planned Parenthood Federation of America is opposed to the nomination

of John Ashcroft. Planned Parenthood’s nationwide network of more than 500,000

activists is mobilizing to oppose his nomination.

Chairman LEAHY. Thank you, Ms. Feldt.

Ms. Greenberger, good to have you here again, and please go

ahead. And we are having some difficulties with some of the sound

system, so bring the microphone close.

STATEMENT OF MARCIA GREENBERGER, CO-PRESIDENT,

NATIONAL WOMEN’S LAW CENTER, WASHINGTON, D.C.

Ms. GREENBERGER. Thank you. Thank you, Senator Leahy and

other members of this Committee, for the invitation to testify

today. I am Co-President of the National Women’s Law Center

which, since 1972, has been in the forefront of virtually every

major effort to secure women’s legal rights. My testimony today is

presented on behalf of the center as well as the National PartnerVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00310 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
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ship for Women and Families, which, since its founding in 1971 as

the Women’s Legal Defense Fund, has also been a preeminent advocate for women’s legal rights in Washington and nationally.

We are here today to oppose the nomination of John Ashcroft to

serve as Attorney General of the United States, and we do so because the Attorney General of the United States, very simply, is responsible for protecting and enforcing the fundamental principles

and laws that have advanced and safeguarded women’s progress

for more than three decades and because, as has been stated here,

Senator Ashcroft’s record demonstrates that entrusting him with

this heavy responsibility would put these precious gains for women

at far too great a risk to ask them to bear.

Mr. Ashcroft has testified that he would accept responsibility to

execute the laws as they are and not as he might wish them to be.

But we have not been reassured by his testimony. The extreme positions that have been a driving and overriding theme of his long

public career have repeatedly led him to misread what the laws

are, and then to zealously use his public offices to advance his mistaken views.

His assurances in his testimony were too often general in nature,

subject to many caveats, and must be considered within the context

of the way in which he did discharge his obligations when he was

also obligated to enforce and also interpret the laws. I want to

mention briefly some of the areas beyond choice and abortion and

contraception, so important, and what has been discussed so far

this morning, to raise some other issues as well.

We have heard about his opposition to the equal rights amendment which would have given women the highest legal protection

against sex discrimination in all areas of life by the government.

This stands in stark contrast to his support of other amendments

to the Constitution, extraordinary support to so many other amendments. And we know about his vigorous support, or pursuit, rather,

of the National Organization for Women, and we know of only one

other Attorney General who even mentions support of that kind of

suit out of the 15 States that were subject to boycott at that time.

He used his veto power not just in not supporting laws important

to women, but actually vetoing laws, including a maternity leave

law in 1980 that he vetoed that was far more limited in scope than

the Federal Family and Medical Leave Act that he would be

charged with upholding, including enforcing as Attorney General.

He twice vetoed bills that would have established a State minimum

wage in Missouri. Women are the majority of minimum wage earners. And at that time, Missouri was only one of six States without

a State minimum wage law.

He twice used his line-item veto in 1991 and again the following

year to seek out and strike even small sums of money for domestic

violence programs, prompting a local domestic violence advocate to

denounce the action as reprehensible in light of the fact that the

programs in question were literally struggling to stay afloat.

One of the most critical responsibilities of an AG in administering the Department of Justice programs dealing with violence

against women is determining the financial resources that will be

committed to that very program.

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As a Senator, Mr. Ashcroft’s record on issues important to

women has been no better, and my written testimony explains why.

I will mention two points briefly.

First, as Senator, he repeatedly blocked the confirmation of highly qualified women to the Federal bench. Not one of us sitting here

today could have failed but be moved by the extraordinary testimony of Judge Ronnie White, and I want to point out how struck

I was by the important notes of criticism that were articulated by

members of this Committee about the process that was followed in

the Judge Ronnie White case. There have been similar problems

with other women nominees. Senator Specter, you identified those

problems this morning.

Senator Ashcroft would be screening and evaluating judges, a

major responsibility. He would be responsible for setting up and

implementing the process he would use to screen and refer judges

to the President. He would be doing this behind closed doors. This

Senate has seen how he has operated in the open. To give him that

vast authority, as I say, behind closed doors is unthinkable.

I want to also say that his promise to enforce the law as it is

has not been borne out in practice when he has disagreed with the

law as it has been. He has not been able to do so. And I am not

questioning his motives. I am for the conviction with which he

made the promise to this Committee and to the American public.

What I am questioning is his ability to dispassionately, despite his

intentions to do so otherwise, but his ability to actually read the

law fairly and accurately.

We have heard about what happened with the nurses’ case. I

want to briefly mention one other case involving—when he was Attorney General of Missouri, where he supported in court going—

trying to go all the way up to the Supreme Court, a law that would

have automatically terminated parental rights to a child born after

an attempted abortion and then making automatically the child a

ward of the State.

Judge William Webster, then a judge on the Eighth Circuit, described the provision, and these are in his words in a concurring

opinion, as offensive, totally lacking in due process, and patently

unconstitutional. We cannot ask the American public to rely upon

the promises of Senator Ashcroft that his view of what is constitutional will become the view that then is argued to the Supreme

Court, is the subject of advice for discrimination laws across the

country and the like.

Thank you.

[The prepared statement of Ms. Greenberger follows:]

STATEMENT OF MARCIA D. GREENBERGER, CO-PRESIDENT, NATIONAL WOMEN’S LAW

CENTER

My name is Marcia Greenberger, and I appreciate your invitation to testify today.

I am Co-President of the National Women’s Law Center, which since 1972 has been

at the forefront of virtually every major effort to secure women’s legal rights. My

testimony today is presented on behalf of the Center as well as the National Partnership for Women & Families, which, since its founding in 1971 as the Women’s

Legal Defense Fund, also has been a preeminent advocate for women’s legal rights

in Washington and nationally.

I am here to oppose the nomination of John Ashcroft to serve as Attorney General

of the United States. I would like to emphasize that this is a step that we do not

take lightly. We do so in the case of this nomination because the Attorney General

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1See, e.g., Letter to the Honorable Ben Nighthorse Campbell, September 4, 1998 (Sen.

Ashcroft was a signatory to a letter opposing contraceptive coverage for federal employees which

stated ‘‘[b]ut more importantly we are concerned with what appears to be a loophole in the legislation regarding contraceptives that upon failing to prevent fertilization act de facto as

abortifacients’’); Letter to the Honorable Ben Nighthorse Campbell, June 21, 1999 (Sen. Ashcroft

was a signatory to a letter opposing contraceptive coverage for federal employees which stated

‘‘[a]s you are aware, some of the contraceptives that were mandated under the Snowe/Reid provision act de facto as abortifacients upon failing to prevent fertilization’’). 2 Human Events Magazine, May 29, 1998 (confirming his opposition to a rape and incest exception). Mr. Ashcroft has also supported legislation that would ban abortions and make no exception for pregnancies caused by rape or incest, or a woman’s health. See, e.g., the Human Life

Amendment, S.J.Res. 49, 105th Cong., 2d Sess., June 5, 1998; and the Human Life Act of 1998,

S. 2135, 105th Cong., 2d Sess., June 5, 1998. 2 3 Hearings on S. 158 Before the Subcommittee on Separation of Powers of the Senate Judiciary

Committee, 97th Cong., 15st Sess. (1981) at 1107. 4S. 158, ‘‘Human Life Bill,’’ 97th Cong., 1st Sess. (1981) (Section 4). 5Jefferson City News & Tribune, March 13, 1983. 6 Human Events Magazine, May 29, 1998. 7 Human Events Magazine, May 29, 1998.

of the United States is responsible for protecting and enforcing the fundamental

principles and laws that have advanced and safeguarded women’s progress for three

decades, and Mr. Ashcroft’s record demonstrates that entrusting him with this

heavy responsibility would put these precious gains for women at substantial risk—

a risk too great to ask women of this country to bear.

The Attorney General, as head of the U.S. Department of Justice, is directly responsible for carrying out the President’s constitutional charge to ‘‘take care’’ that

the laws of the United States are faithfully executed. While Mr. Ashcroft may understand that his responsibility would be to execute the laws as they are, and not

as he might wish them to be, the extreme positions that have been a driving and

overriding theme of his long public career have repeatedly led him to misread what

the laws are and zealously use the public offices he has held to advance his firmlyheld views. His record demonstrates that he would use the vast powers of Attorney

General to endanger the constitutional guarantees and hard-won federal laws that

form the core legal protections for women in this country today.

THE ASHCROFT RECORD IS ONE OF HOSTILITY TO LAWS AND CONSTITUTIONAL

PROTECTIONS OF CENTRAL IMPORTANCE TO WOMEN

Much has been said about the fact that Mr. Ashcroft believes Roe v. Wade should

be overturned, and about his unrelenting pursuit of that goal throughout his public

career. Less has been said about the sweeping way he would seek to overturn Roe.

He would include, in his definition of abortion, commonly-used forms of the birth

control pill, IUD’s and other methods of contraception.1 He would make no exception

for cases of rape, incest or the very health of a woman.2 In overturning Roe v. Wade,

he would not even leave it up to each state to determine what it would allow women

within its borders to choose. Rather, he takes the position that every state—from

New York to California, from Maine to Florida—should be restricted, by federal

statute and by constitutional amendment, in its ability to preserve women’s right

to choose.3 He has even supported legislation that would bar women from challenging the constitutionality of state restrictions in federal district courts and courts of

appeal.4

Mr. Ashcroft has made no secret of the central role that his opposition to Roe v.

Wade has played in his public life. In 1983, he told the Missouri Citizens for Life

annual convention that he ‘‘would not stop until an amendment outlawing abortion

is added to the U.S. constitution.’’ 5 More recently he said, ‘‘If I had the opportunity

to pass but a single law, I would fully recognize the constitutional right of life of

every unborn child, and ban every abortion except those medically necessary to save

the life of the mother.’’ 6 As he told Human Events, ‘‘Throughout my life, my personal conviction and public record is that the unborn child has a fundamental individual right to life which cannot be infringed and should be protected fully by the

14th Amendment. ‘‘(emphasis added).7

Mr. Ashcroft has stated that he will not compromise on the abortion issue, and

has chastised fellow Republicans who took the position that the Republican party

should be more accepting of other opinions: ‘‘To the so-called leaders who say abortion is ‘too politically divisive’ let me be clear. Confronting our cultural crises is the

true test of our courage and true measure of our leadership. It is time for us to reacquaint our party with the politics of principle. We must not seek the deal, we seek

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8 Kansas City Star, September 14, 1997. 9Meet the Press, April 19, 1998. 10 John Ashcroft’s Spirit of America Website, <http://www.johnashcroft.org/life/htm.> (last visited on January 17, 2001). 11St. Louis Post Dispatch, February 25, 1989. 12Deposition of John Ashcroft, National Organization for Women v. Ashcroft, Case No. 81– 4094–CV–C–W, 24 (January 7, 1982). 13Missouri v. NOW, 620 F.2d. 1301 (8th Cir.1980), cert. denied, 449 U.S. 842 (1980). 14 Veto Letter, Missouri S.B. 542, July 13, 1990. See also, St. Louis Post Dispatch, March 3,

1990. The 1990 Missouri bill covered only women employees; it did not cover seriously ill children or other family members, or even adoptive fathers; it did not protect employee’s health insurance during their leave; it guaranteed employees’ jobs for only eight weeks (except in cases

of premature births); and it contained an exemption for food service personnel. 15St. Louis Post Dispatch, March 3, 1990. Less than two weeks after Governor Ashcroft vetoed

the state’s minimum wage bill, the Missouri House tentatively approved a bill to place the minimum wage bill before Missouri voters. St. Louis Post Dispatch, March 16, 1990. The state legislature then passed a new version of the bill by unanimous vote. St. Louis Post Dispatch, April

25, 1990. Finally, threatened by the effort to take the bill directly to voters and facing certain

override, Ashcroft signed the bill. St. Louis Post Dispatch, May 3, 1990.

the ideal.’’ 8 Mr. Ashcroft said that he was the only Senator to oppose the Republican National Committee’s decision to continue to fund Republican candidates who

support abortion rights and oppose the ban, ultimately struck down as unconstitutional, on so-called ‘‘partial birth’’ abortion. ‘‘I think there are certain things we simply don’t fund and stand for and that’s one of the things we don’t,’’ he said.9

Not only has Mr. Ashcroft argued that his party should not financially support

candidates in favor of abortion rights, he also has used a rigid abortion rights test

in judging Clinton administration nominees. As he stated on his web site, ‘‘life and

death decisions are often made by non-elected officials—judges, the surgeon general,

etc. Those who devalue life must not be placed in authority over policies affecting

our most vulnerable. I have repeatedly, and in many instances alone, fought President Clinton’s anti-life nominations and appointments including activist federal

judges and Surgeon General nominees Henry Foster and David Satcher.’’ 10

It is hard to imagine that John Ashcroft, who throughout his career has pledged

to ban abortions and overturn Roe v. Wade, has used every public service position

that he has held to advance that cause, has attacked the legitimacy of the Roe decision in the strongest of terms, has decried any compromise on the issue and chastised his colleagues in the Republican party for a ‘‘big tent’’ approach, would protect

Roe v. Wade as the Attorney General of the United States.

In addition, Mr. Ashcroft has amassed a record of opposition to other core constitutional and legal rights of women, and programs to ensure their health and safety, and has a dismal record of appointing women to high-level government positions

and the judiciary. The President of the St. Louis area chapter of the National Women’s Political Caucus said, ‘‘Ashcroft’s record on appointments reflects his administration’s general insensitivity and unresponsiveness to women’s issues, such as domestic violence, quality child care, education, reproductive rights and equal

rights.’’ 11

While Mr. Ashcroft has been ardent in his support for a string of constitutional

amendments on a variety of subjects, as Attorney General of Missouri he opposed

ratification of the Equal Rights Amendment to the U.S. Constitution, which would

have given women the strongest level of protection against government-based sex

discrimination.12 Indeed, thenAttorney General Ashcroft went to extreme lengths to

sue the National Organization for Women (NOW) under the antitrust laws for its

efforts to persuade the remaining 15 states to ratify the ERA by encouraging an economic boycott. He pursued this litigation all the way to the Supreme Court, even

though he was unsuccessful every step of the way, as the courts held that NOW’s

activities were protected by the First Amendment.13

As Governor of Missouri, Mr. Ashcroft also demonstrated his antipathy to key concerns of women through his repeated use of his veto power to thwart the will of the

Missouri legislature on issues of particular importance to women. In 1990, he vetoed

a maternity leave law that was far more limited in scope than the federal Family

and Medical Leave Act he would be charged with defending as Attorney General.14

He twice vetoed bills that would have established a state minimum wage in Missouri, despite the fact that Missouri was one of only six states without a state minimum wage law at the time; women comprise the majority of minimum wage earners.15 He twice used the line-item veto, in 1991 and again the following year, to seek

out and strike even small sums of money for domestic violence programs, prompting

a local domestic violence advocate to denounce the action as ‘‘reprehensible’’ in light

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16 Veto Letter, Missouri H.B. 1101, June 21, 1990; Veto Letter, Missouri H.B. 1101, June 26,

1992; Daily Capital News, June 30, 1992; Kansas City Star, June 30, 1992. 17St. Louis Post Dispatch, March 1, 1992. 18St. Louis Post Dispatch, February 25, 1989. 19 Id. 20St. Louis Dispatch, March 21, 1988. 21 Hearing before the Subcommittee on the Constitution, Federalism, and Property Rights of the

Senate Judiciary Committee, 105th Cong., 1st Sess., (September 30, 1997) (opening statement of

John Ashcroft). 22 Hearing before the Senate Judiciary Committee, 105th Cong., 1st Sess. (November 6, 1997);

St. Louis Post-Dispatch, October 8, 2000. 23Kennedy Amendment to S. 2549, June 20, 2000, (57 Yes-42 No). 24Los Angeles Times, November 3, 1997. 25St. Louis Post-Dispatch, January 11, 2001.

of the fact that the programs in question were ‘‘literally struggling to stay afloat.’’ 16

And he vetoed legislation creating 700 new slots of subsidized child care and reportedly killed bills that would have required church-based child care to meet basic fire,

safety, and sanitation standards.17

Reinforcing, and perhaps even partly explaining, his poor record of support for

laws protecting women during his eight years as Governor, John Ashcroft had a dismal record on appointments of women to the highest levels of his government and

to the courts. In 1989, a survey by the National Women’s Political Caucus revealed

that Mr. Ashcroft was the only governor in the country with an appointed cabinet

that did not include any women.18 After serving as Governor for seven years, John

Ashcroft had appointed only one woman to his cabinet.

A separate study of Governor Ashcroft’s judicial appointments in his first term

showed that only three of his 60 appointments were women.19 The Women’s Lawyers Association’s judiciary committee in St. Louis charged that questions posed to

judicial applicants had the potential for adverse impact on women candidates. Inappropriate question topics included: marital status, number and ages of children,

pregnancies and family planning.20

As a U.S. Senator, Mr. Ashcroft’s record on issues important to women is no better. He has been a vigorous opponent of one of the tools that are most effective in

remedying discrimination and expanding opportunities for women—affirmative action—and he went to great lengths to attempt to severely weaken it. He voted to

abolish a program that ensures that women business owners have a fair chance to

compete for business in federally funded highway and transit projects, and

mischaracterized the program as one involving quotas and set-asides even though

it was not.21 He worked to block Senate confirmation of Bill Lann Lee for the position of Assistant Attorney General for Civil Rights on the ground that Mr. Lee supported affirmative action, even though Mr. Lee supported only constitutional forms

of affirmative action that are of great importance to women’s progress.22 He also

voted against the Hate Crimes Prevention Act, which would add gender-based hate

crimes—along with crimes based on sexual orientation or disability—to the categories of heinous crimes prohibited by the federal civil rights laws.23

As a Senator, he also repeatedly blocked the confirmation of highly qualified

women to the federal bench. It is well known that women nominated to the federal

bench by President Clinton were subjected to a disproportionate share of delays and

opposition by certain senators. Senator Ashcroft featured prominently among them.

A leading example is the nomination of Margaret Morrow, a respected Los Angeles

corporate attorney, to the federal district court in California. Senator Ashcroft leveled unsubstantiated charges against her (seriously distorting a speech she gave

about women in the legal profession) and blocked consideration of her nomination

with a secret ‘‘hold’’ he later acknowledged.24 She had strong bipartisan support

(from Senator Hatch, among many others), and ultimately was approved twice by

this Committee and overwhelmingly by the full Senate, but only after Senator

Ashcroft’s obstructionist tactics delayed her confirmation for nearly two years.25

In a similar vein, Senator Ashcroft was only one of 11 Senators to vote against

the confirmation of Margaret McKeown to the Ninth Circuit in 1998, after a delay

of nearly two years, and he was in the minority voting against the confirmation of

Sonia Sotomayor to the Second Circuit after a delay of more than a year, against

the confirmation of Susan Oki Mollway to the federal district court in Hawaii after

a delay of two and a half years, against the confirmation of Ann Aiken to the federal

district court in Oregon, and against the confirmation for Marsha Berzon to the

Ninth Circuit after a delay of nearly two years.

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26 Executive Session—Senate, 106th Cong., 1st Sess., October 4, 1999 (Congressional Record, p.

S 11871—82) <http://rs9.loc.gov/cgi-bin/query/D?r106:2:./temp/¢rl 062JRvvn:e32247:> 27Kinder, 942 S.W.2d. at 340. 28Freiman v. Ashcroft, 440 F.Supp. 1193, 1195 (E.D. Mo., 1977) (Webster, J. concurring). 29Freiman v. Ashcroft, 584 F.2d 247, 250 (8th Cir., 1978). 30 Ashcroft v. Freiman, 440 U.S. 941 (1979). 31Sermchief v. Gonzales, 660 S.W.2d 683 (Mo. 1983). 32 Hearings on S. 158 Before the Subcommittee on Separation of Powers of the Senate Judiciary

Committee, 97th Cong., 1st Sess. (1981) (Statement of Attorney General John Ashcroft, noting

that he was the ‘‘chief lawyer in a law office that maintains a . . . caseload of about 5,000

cases’’). 33S. 158, ‘‘The Human Life Bill,’’ 97th Cong., 1st Sess. (1981). 34 New York Times, June 19, 1981.

JOHN ASHCROFT HAS MISREAD THE LAW AND USED HIS PUBLIC POSITIONS TO

UNDERMINE WOMEN’S LEGAL AND CONSTITUTIONAL RIGHTS

A major factor in assessing John Ashcroft’s fitness to be Attorney General is his

ability, as the nation’s chief legal officer, to carry out his duties based on a fair and

impartial reading of the law, and to put aside his extreme positions and his use of

extreme tactics to advance those positions. His record shows that he has not been

able to do so in the past, and therefore he should not be entrusted to do so in the

future, as Attorney General. His reading of the law has been so colored by his

strongly held beliefs that he has been either unable or unwilling to see what the

law requires, and he has repeatedly used the public offices he has held to attempt

to subvert legal rights and constitutional protections for women.

Senator Ashcroft’s blatant misreading of Judge Ronnie White’s legal opinions is

a prime example of his failing to read the law fairly and impartially. Senator

Ashcroft, for example, told the Senate that Judge White’s ‘‘only basis’’ for recommending a new trial for a defendant in State of Missouri v. Kinder, 942 S.W.2d.

313 (Mo. 1996), on the ground that the trial judge was biased, was that the trial

judge opposed affirmative action.26 But Judge White’s dissent actually said the opposite—that the trial judge’s criticism of affirmative action was ‘‘irrelevant’’ to the

issue of the judge’s bias.27 Senator Ashcroft was either unwilling or unable to interpret this opinion correctly.

In no area has Mr. Ashcroft been more flawed in his reading of the law than in

the area of women’s reproductive and other legal rights. For example, as Attorney

General of Missouri, he defended a law automatically terminating parental rights

to a child born after an attempted abortion and making the child award of the state.

Judge William Webster, then a judge on the Eighth Circuit, described this provision

in a concurring opinion as ‘‘offensive,’’ ‘‘totally lacking in due process,’’ and ‘‘patently

unconstitutional.’’ 28 Judge Webster’s opinion was quoted with approval by a unanimous Eighth Circuit panel, which struck down the law.29 Yet Mr. Ashcroft sought

review by the Supreme Court, which summarily affirmed the Eighth Circuit.30

When Mr. Ashcroft, as state Attorney General, intervened to support a challenge to

the ability of nurses under the State Nurse Protection Law to provide contraception

and other basic health services to women, his legal position was rejected by a unanimous Missouri Supreme Court—which noted that the Attorney General and other

representatives of Missouri could not cite a single case elsewhere challenging the

authority of nurses to perform these services even though at least 40 states had

similar nursing practice laws.31 There are some who say that as Missouri Attorney

General he was required to defend these statutes, but it is well established that no

Attorney General is compelled to defend statutes that are patently unconstitutional,

or intervene in cases without merit, let alone persist in appeals all the way to the

Supreme Court.

Moreover, Mr. Ashcroft has not only defended seriously flawed state statutes, he

also has gone out of his way to seize other opportunities to undermine women’s legal

rights. He used the powers of his office as state Attorney General to pursue a

meritless antitrust case against NOW all the way to the Supreme Court. As Missouri Attorney General he also chose to come to Washington to testify in the U.S.

Senate in support of an extreme ‘‘human life’’ bill.32 Introduced in 1981, the bill

would require states to treat fertilized eggs as human beings under the law, with

full due process rights, and would assign states a ‘‘compelling interest’’ in their protection.33 The bill prompted widespread opposition from medical and religious

groups, who called the bill scientifically unsound and potentially damaging to the

health of American women, and its patent unconstitutionality under Roe v. Wade

was decried.’’ 34 In contrast, then-Missouri Attorney General Ashcroft testified in

strong support of this clearly unconstitutional bill and stated that ‘‘there’s more

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35 Hearings on S. 158 Before the Subcommittee on Separation of Powers of the Senate Judiciary

Committee, 97th Cong., 1st Sess. (1981) (Statement of Senator John Ashcroft). 36Kansas City Times, January 25, 1990. 37St. Louis Post-Dispatch, March 28, 1991 (discussing Missouri SB 339 (January 22, 1991)). 38 Judiciary Act of 1789, 1 Stat. 73 § 35, superceded by, 28 U.S.C. §§ 511–513 (2000). 39 Nancy v. Baker, Conflicting Loyalties: Law and Politics in the Attorney General’s Office,

1789-1990, 5 (1992). 40 Cornell W. Clayton, The Politics of Justice: the Attorney General and Making of Legal Policy,

60 (1992). 41 Id. at 70.

than ample precedential legal and policy support for the Courts to uphold this bill.35

The bill was not enacted. As Governor he introduced another patently unconstitutional bill that would have prohibited a woman from ever having a second abortion,

except to protect her health. It died quickly, even in the strongly anti-choice Missouri legislature.36 And he supported yet another clearly unconstitutional bill that

would have banned abortions in 18 specific circumstances, with no exception for

rape or incest. It, too, was unable to garner needed support from anti-choice legislators.37

In short, John Ashcroft has been driven by a set of rigid and radical views, he

has read the law through glasses heavily tinted by his own agenda, and he has used

his public offices to relentlessly pursue that agenda.

MR. ASHCROFT’S PAST PERFORMANCE AND USE OF PUBLIC OFFICE DEMONSTRATES

THAT AS ATTORNEY GENERAL HE WOULD USE HIS VAST POWERS TO SUBVERT

WOMEN’S LEGAL RIGHTS

The Attorney General of the United States has a vast array of powers at his disposal. These include advising the President, the executive branch departments, and

Congress on questions of constitutional and statutory law; representing the United

States and its interests before the Supreme Court, with a degree of influence that

is second to none on what cases the Court hears and how it decides them; enforcing

a broad range of federal statutes, including the federal civil rights laws, as well as

administering and initiating numerous programs related to law enforcement and the

administration of justice; and advising and assisting the President on the selection

of nominees to serve on the federal courts, including on the Supreme Court. All of

these powers are exercised, in some cases largely outside the light of public or judicial scrutiny, and history has shown that they can be used to subvert the office in

the service of an extreme agenda. Based on John Ashcroft’s record, there is ample

reason to fear that if given the opportunity, he will use the powers of the Attorney

General to further his extreme agenda in ways that would have devastating consequences to people across the country—and to women in particular—for years to

come.

a. Opinions and Advice. The Attorney General is charged with the duty to give

‘‘advice and opinion upon questions of law’’ throughout the entire Executive Branch

when requested by the President or any executive department.38 This includes rendering advice on the constitutionality of proposed legislation and the legality of executive branch actions. The ‘‘advice and opinion’’ function is widely regarded as quasijudicial,39 and often it is rendered behind the scenes without any public scrutiny

or oversight. Yet the outcome of major policy debates may turn on the Attorney

General’s advice—that advice can determine whether a bill introduced in Congress

receives the backing of the Administration; whether a bill Congress has passed is

signed into law or vetoed; or whether a proposed Executive Order is a valid exercise

of the President’s power, or an executive department’s actions are legal. The stakes

are large, and the public must have confidence that the Attorney General’s advice

is honest and balanced and based on a reasonable reading of the law.

b. Representing the United States in the Supreme Court. The representation of the

United States and its interests before the Supreme Court is a critical duty of the

Attorney General, and one that has a huge impact. Historically, the Justice Department has been the most frequent and successful litigator before the Supreme

Court.40 The Justice Department’s institutional standing before the Court allows the

Attorney General to influence the Supreme Court in a way that no other litigant

can. Issues that appear on the agenda of the Attorney General will, more often that

not, be heard by the Supreme Court.41 So great is the Department’s influence in

setting the Court’s agenda that one Solicitor General wrote, ‘‘The power of the Supreme Court is limited to deciding the cases brought before it. It is the Attorney

General who decides what the Supreme Court will decide—at least in the area of

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42 Id. at 67. 43 Between 1925 and 1988, the Justice Department prevailed on average in nearly 69 percent

of its cases. Id. at 69. 44 U.S. General Accounting Office, Abortion Clinics: Information on the Effectiveness of the

Freedom of Access to Clinic Entrances Act Report to Ranking Minority Member, Subcomm. on

Crime, Comm. on Judiciary, House of Representatives, (November 1998). 45 Clayton, supra at 61. 46 Id. at 194 (citing Newman v. United States, 382 F.2d 497 (1967)). 47 Id. at 197. 48 Id. 49 1d. at 203-04. 50 Id.

public issues.42 And of the cases decided on the merits, more often than not the

Court adopts the position advanced by the Attorney General.’’ 43

c. Enforcing the Law and Administering and Initiating DOJ Programs. The Attorney General has the responsibility to enforce a wide range of laws, and administer

and initiate a broad array of programs, including many that are central to guaranteeing equal rights and opportunities for women. These responsibilities include enforcing the civil rights laws prohibiting sex discrimination in employment, education, and in many other spheres of life. They include defending constitutional affirmative action programs that are critical to breaking down barriers to opportunity

for women business owners and other women in the workplace. They also include

administering Justice Department programs and dispensing millions of dollars in

grants to address the continuing problem of violence against women through the Violence Against Women Office. And they include enforcing the Freedom of Access to

Clinic Entrances Act (FACE), the federal law that has proven highly effective in diminishing acts of violence and obstruction targeted at health care providers that

offer reproductive health services to women.44

d. Screeniniz and Evaluating Supreme Court Justices and Other Federal Judges. The Attorney General carries the major responsibility for screening and evaluating

nominees to serve as federal judges at every level, including on the Supreme Court.

This role includes identifying potential judicial candidates, thoroughly screening and

evaluating all those under consideration, and preparing candidates for appointments.45 Before the names of candidates ever surface in the public eye or come before the Senate for confirmation, they have passed through the Attorney General’s vetting process. This responsibility could not be weightier, given that judicial appointments last for a lifetime.

Many of the powers and responsibilities summarized above are exercised in ways

that escape public, Congressional, or judicial scrutiny. For example, decisions not to

bring enforcement actions are made out of the public eye, and they generally escape

judicial review, as the courts are reluctant to second-guess prosecutorial decisions.

That means that an Attorney General who has misgivings about a law, or who

misreads what is necessary to support an enforcement action, has almost a free

hand in deciding whether or when to bring suit, what precise charges to make, or

whether to dismiss a proceeding once it has been brought.46 The Justice Department

can also refuse to authorize litigation by other Government departments and agencies.47 This kind of non-enforcement strategy can prevent policies that an Administration disfavors from ever reaching the courts.48 Another form of dangerous nonenforcement occurs when the Department refuses to defend, or decides to attack, a

statute passed by Congress that has been challenged in the courts. The Attorney

General has, as well, virtually unchecked discretion in the manner in which he renders his opinions and advice on legal questions, in the decisions he makes in the

course of representing the United States in the Supreme Court, and in his selection

of judicial nominees.

History has shown that, given the scope of the Attorney General’s powers, and

the large degree of unfettered discretion the Attorney General has in exercising

them, there is ample opportunity for an Attorney General to misuse the office if disposed to do so. We saw this all too clearly when William Bradford Reynolds was

put in charge of the Civil Rights Division of the Justice Department in 1981. The

number of suits brought to enforce disability discrimination, school desegregation,

fair housing, and voting rights laws, for example, all plummeted. Disability discrimination suits dropped from 29 in 1980 to zero in 1981, the first year of his tenure,

and to only three during the entire next three years.49 Voting rights cases dropped

from 12 in 1980 to two during the next four years.50

In light of Mr. Ashcroft’s long record of hostility to laws and protections of central

importance to women, and his record of aggressive actions consistent with that hostility, there is good cause to fear that if he becomes Attorney General, he will use

the many powers at his disposal to weaken and roll back advances in the law that

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51Planned Parenthood v. Casey, 505 U.S. 833, 844 (1992) (O’Connor, J.).

women have fought long and hard to secure. To further his anti-choice, anti-family

planning agenda, he could, for example, ask the Supreme Court to overturn Roe v.

Wade (as the Reagan and Bush Administrations did no fewer than five times) 51;

give opinions in favor of the constitutionality of legislation or executive actions that

would severely limit abortion or access to contraceptives; refrain from vigorous enforcement of clinic access and clinic violence cases under FACE; curtail the efforts

of the Justice Department’s Clinic Violence Task Force to guarantee the safety of

abortion providers and the unimpeded access of women to reproductive health clinics where abortions are performed; select nominees to the federal courts, including

the Supreme Court, that satisfy his litmus test of placing on the bench only those

who firmly oppose Roe v. Wade; and make appointments to the Department of Justice of individuals who are similarly committed to these actions. Indeed, it is hard

to question that Mr. Ashcroft will do exactly these things if he is entrusted with

the powers of the office of Attorney General. The concern about Supreme Court appointments is particularly grave in light of the prospect of Supreme Court vacancies

during the next four years.

Mr. Ashcroft’s track record on issues of importance to women other than Roe v.

Wade and the right to choose raises equally profound concerns—from his opposition

to the ERA and pursuit of NOW in court; to his vetoes of legislation like maternity

leave, minimum wage, domestic violence, and child care laws; to his abysmal record

on the appointment of women; to his votes in Congress against affirmative action

and other civil rights laws; to his obstruction of the confirmation of qualified women

to the federal bench. With this record, women of this country simply cannot have

confidence that Mr. Ashcroft will support, rather than starve, Justice Department

programs in the Violence Against Women Office that protect women from violence

in their homes and on the streets; that he will defend valuable affirmative action

programs that meet constitutional standards of scrutiny; that he will evaluate

women for nomination to the federal judiciary based on a fair reading of their

records and qualifications; or that he will strongly enforce the federal civil rights

laws that are essential to eliminating discrimination in the workplace, in our nation’s schools, in housing, in credit, and in so many other critical areas of life.

CONCLUSION

At stake in this confirmation debate is not only the interpretation and enforcement of fundamental constitutional rights and statutory protections, and not only

the selection of judges and Supreme Court justices—as vitally important as those

issues are to the future of this country. At stake, as well, in this nomination, is the

very ability of the public to have confidence in our system of justice, as embodied

in all three branches of government. It is essential, of course, to have confidence

that the Justice Department will fairly interpret and enforce the law on behalf of

the entire Executive Branch, and to have confidence that the judiciary, including the

Supreme Court, is comprised of individuals selected for their capacity to review and

apply the law in a fair and reasoned manner. But it is also essential for the public

to have confidence that the Senate will carry out its constitutional duty to give advice and consent with as much seriousness of purpose as a position such as this one

demands, even when a former colleague’s nomination is at issue. In exercising this

solemn duty, we urge you to oppose the confirmation of this nominee, for we believe

that if John Ashcroft becomes Attorney General of the United States, women of this

country will see their core legal rights and constitutional protections stripped away.

Thank you.

Chairman LEAHY. Thank you, Ms. Greenberger.

Ms. Campbell, as always, it is good to have you here. Please go

ahead with your testimony.

STATEMENT OF COLLENE THOMPSON CAMPBELL, MEMBER,

MEMORY OF VICTIMS EVERYWHERE, SAN JUAN

CAPISTRANO, CALIFORNIA

Ms. CAMPBELL. Thank you, honorable Senators. This is a tough

one for me, but I’m going to get through it.

My only son is dead. He’s been murdered because of a flawed justice system. A weak system allowed the release of a lifer from prisVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00319 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
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on. Yes, the inmate was given another chance, that one more

chance, and that opportunity was given to kill my son. We need an

Attorney General who will strongly uphold the intent of the law

and our Constitution, and help protect the people from crime.

My name is Collene Thompson Campbell. Just last month I completed my second term as mayor in the beautiful city of San Juan

Capistrano in California. I am a former chairman of POST; that’s

the Peace Officer Standards and Training Commission. I also serve

on the California Commission on Criminal Justice. I did not buy in

to ever being a victim of crime.

Today I have been asked to represent and speak for many people,

including my friend, and great crime fighter, John Walsh of ‘‘America’s Most Wanted.’’ He badly wanted to be here today. I’ve been

requested to represent and speak on behalf of 12 major California

crime victims’ organizations, and the hundreds of thousands of

crime victims that those organizations represent. We strongly and

unequivocally support the confirmation of John Ashcroft as the

next Attorney General of the United States of America. Throughout

his long career he has shown great heart, and he has worked hard

to lessen the devastation which victims are forced to endure.

My own journey into hell began with the murder of our only son,

Scott. Because we were only the mom and dad, we had no rights.

We were forced to sit outside the courtroom on a bench in the hall,

like dogs with fleas, and during the 7 years encompassing the three

trials of our son’s murderers, that’s where we sat. We were excluded while the defendants’ families were allowed to be inside and

follow the trial and give support to the killers.

The murder of our son was brutal, and our treatment at the

hands of the justice system was inhumane, cruel and barbaric.

Nothing in our life had prepared us for such injustice.

Long ago John Ashcroft realized the need for balanced justice

and has worked toward that end. He understands the victims in

our country must no longer suffer the indignities that many have

been forced to endure. John Ashcroft stands for fairness, law, order

and justice. He stands for balancing the rights of the accused with

the rights of the victims and the law abiding. He stands for constitutional rights for crime victims.

Throughout this great country we need unselfish courage. We

need John Ashcroft’s strong conviction in the fight against crime,

and we need him to further victims’ rights. Victims, God bless

them, deserve notice, just like the criminal, the right to be present,

and the right to be heard at critical stages of their case. They deserve respect and concern for their safety. They deserve a speedy

trial, every bit as much of the defendant. Victims deserve, at the

very least, equal rights to the criminal.

My only sibling, my brother, Mickey Thompson, and his wife

were also murdered. This case is being actively pursued, and I

have great faith that this case will soon be brought to trial. I only

hope that our family can endure the justice system again.

John Ashcroft will fight for legal rights and true remedies for

crime victims. We urge you to support John Ashcroft’s confirmation. No one knows who is going to be a victim.

And with your—and if you’ll permit me, my words today are

dedicated to the memory of Brian Campbell, my 17-year-old grandVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00320 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
307

son who died 9 days ago. And it is really tough to be here, and if

this wasn’t so darn important, I wouldn’t be here. But together

Brian and I believed, as long as we have courage, today will be

beautiful; as long as we have memories, yesterday will remain; as

long as we have purpose, tomorrow will improve.

Thank you, Senators, for allowing me to speak, and I’m sorry I

choke up.

[The prepared statement of Ms. Campbell follows:]

STATEMENT OF COLLENE THOMPSON CAMPBELL, MEMBER, MEMORY OF VICTIMS

EVERYWHERE, SAN JUAN CAPISTRANO, CALIFORNIA

Mr. Chairman and Senators:

My only son is dead, murdered, because of a flawed justice system. A weak justice

system released a lifer from prison. Yes, the inmate was given ‘‘one more’’ chance,

and an opportunity to kill our son. We need an Attorney General who will strongly

uphold the intent of the law and our constitution in this ever escalating cycle of violence.

My name is Collene Thompson Campbell. Just last month, I completed my second

term as Mayor of the City of San Juan Capistrano in California. I am a former

Chairman of POST, (Peace Officer Standards and Training Commission), and I also

serve on the California Commission on Criminal Justice.

Today, I have been asked to represent and speak for many people, including my

friend and great crime fighter, John Walsh, host of ‘‘America’s Most Wanted,’’ who

wanted to be here today. I have been requested to represent and speak on behalf

of the twelve major California crime victims organizations and the hundreds of

thousands of crime victims they represent. We strongly and unequivocally support

the confirmation of John Ashcroft as the next Attorney General of the United States

of America. Throughout his long career; he has worked to reduce the devastation

which victims are forced to endure.

My own journey into hell began with the murder of our only son, Scott. Because,

we were ‘‘only’’ the Mom and Dad, we had no rights. We were forced to sit outside

the courtroom on a bench in the hall all during the seven years, encompassing three

trials for our son’s murderers. We were excluded, while the defendants’ family was

allowed inside to follow the trial and give support to the killers. The murder of our

son was brutal. Our treatment at the hands of the justice system was inhuman,

cruel and barbaric. Nothing in our life had prepared us for such injustice.

Long ago, John Ashcroft realized the need for balanced justice and has worked

toward that end. He understands the victims in our country must no longer suffer

the indignities that many have been forced to endure. John Ashcroft stands for fairness, law, order and justice. He stands for balancing the rights of the accused with

the rights for the victims and the law-abiding. He stands for constitutional rights

for crime victims.

My very good friend, John Gilles, a former police lieutenant, a black man, would

have liked to have been here with me today. His daughter was also murdered. The

two of us wanted to ‘‘point out’’ that our gender, nor our race, made a difference

in this hearing, which should be about justice and fair treatment to all. We victims,

feel the hearing should not be about politics and party rhetoric. To be truthful,

when one has lost so very much, it hurts to witness that type of behavior at this

very important confirmation.

Throughout this great country, we need unselfish courage. We need John

Ashcroft’s strong conviction in the fight against crime and to further victims’ rights.

Victims deserve notice, the right to be present and the right to be heard at critical

stages of their case. They deserve respect and concern for their safety; they deserve

a speedy trial, every bit as much as the defendant. Victims deserve, at the very

least, equal rights to the criminal.

My only sibling, my Brother, Mickey Thompson and his wife, Trudy, were also

murdered. That case is being actively pursued and I have faith that the case will

soon be brought to trial. . .I only hope that our family can again endure the justice

system.

John Ashcroft will fight for legal rights and true remedies for crime victims. We

urge you to support John Ashcroft’s confirmation.

If you will permit me, my words today are dedicated to the memory of Brian

Campbell, my seventeen-year-old Grandson who died just nine days ago. Together

we believed:

As long as we have courage, today will be beautiful,

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As long as we have memories, yesterday will remain,

As long as we have purpose, tomorrow will improve.

Chairman LEAHY. Ms. Campbell, you have no need to apologize

for being choked up. A former Senator and mentor of mine when

I came here said a person who has no tears, has no heart.

Ms. CAMPBELL. Thank you.

Chairman LEAHY. And so—

Ms. CAMPBELL. They must think I have a lot of tears. They got

me the whole box. Thank you for saying that.

Chairman LEAHY. Well, those of us who have been prosecutors

have some sense of what victims go through, and it is a terrible

thing. I don’t think anybody who has been—who has not either

been a victim or been intimately involved in the criminal justice

system knows how the victims get victimized over and over and

over again.

At the request of Senator Hatch, and then following the normal

courtesy, he has advised me that Congressman Watts and Congressman Hulshof—I know Congressman Hulshof is here because

I spoke to him earlier—are here. This was the panel that was going

to be on last night, and because of some miscommunication, some

members were able to be here and some were not. And now the further miscommunication, the last member of that panel is not here,

but following the normal tradition in the Congress, of putting

Members of Congress on as they are available, I am going to ask

the panel here to step down, rejoin us after lunch, and we will go

back to your questions.

And we will call Congressman Watts and Congressman Hulshof

now. When Congressman Clyburn gets back, we will have him, but

we will go back to questions after lunch.

[Pause.]

Chairman LEAHY. We have a very large room here, and I know

that there are some people who are leaving and some people coming in.

We have two distinguished members of the House of Representatives who deserve to be heard. We will hear first from Congressman Watts, who is a member of the Republican leadership, Majority leadership in the House of Representatives.

As I mentioned earlier, I have received a letter from Congressman Hulshof. While I did not agree to his basic request, I think

I misunderstood the tone of the request. I state that not only for

the Congressman, but for any member of his family who may be

watching, that in 26 years here, I have tried—I believe I have a

reputation of always trying to extend whatever courtesy is possible

to all members of both the House and the Senate of either party.

Congressman Watts, I understand we will begin with you as a

member of the Republican leadership.

STATEMENT OF HON. J.C. WATTS, JR., A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF OKLAHOMA

Representative WATTS. Chairman Leahy, Ranking Member

Hatch, Senators of the Judiciary Committee, thank you for affording me an opportunity to address the nomination of Senator John

Ashcroft to be the next Attorney General of the United States.

309

Let me say here at the outset that, as I have observed these

hearings from time to time over the last two and a half days, that

any man or woman, Republican or Democrat, liberal or conservative, who would sit through this process for 3 days and have

bombs thrown at him, should be confirmed for whatever.

And, Mr. Chairman, John Ashcroft is a man of the highest integrity. I have worked with him over the last five and a half years in

the renewal alliance, putting together legislation targeting poor

and under-served communities, the home ownership, savings, job

creation, and capital formation. And by the way, President Clinton

signed that legislation into law about a month and a half ago, the

most comprehensive piece of poverty legislation ever to go through

the House and the Senate.

I have campaigned with Senator Ashcroft in St. Louis. I’ve

known him for the past 6 years, and I have never known Senator

Ashcroft to be a racist, nor have I ever detected anything but dignity and respect for one’s skin color from John Ashcroft.

He’s a man of principle. He has been scrupulously put through

an inquisition of mammoth proportion, and it is safe to say that

this Committee has looked into everything dealing with the career

and character of John Ashcroft. We all know that no one is going

to please all of you all the time, but John Ashcroft takes defending

and upholding the law seriously, and I believe that’s what matters

the most.

The responsibility of the Attorney General is to defend and uphold the law, not to make the law. It is the responsibility of us, the

Congress of the United States, to make the law.

As I said earlier, I have watched bits and pieces of these hearings during the last two and a half days. I haven’t watched them

all. Believe it or not, Little League, soccer and junior varsity basketball games continue in spite of these very important hearings.

There is not a lot I can say today that hasn’t already been said

during these proceedings. However, I will say I am delighted that

outside groups aren’t making the determination on Senator

Ashcroft.

I heard Senator Biden say yesterday afternoon that he did not

trust many of the interest groups that’s gotten involved, and if Senator Biden was here today, I would say to him, ‘‘I agree with you.

Neither do I.’’ I’ve been blind-sided by them before, and so many

of these groups totally disregard the facts. Not only do they want

their own opinion, they want their own facts. So, again, if Senator

Biden was here, I would say to him that I can relate to what he

was talking about yesterday.

I am delighted that people who know Senator Ashcroft best will

make the call on this confirmation, and in your deliberations, I

would ask you to consider his qualities, his qualifications and his

integrity.

Last Monday, on January 15th, after observing Dr. King’s birthday, my 11-year-old daughter and I were watching the Disney

movie, ‘‘The Fox and the Hound.’’ And I watched the movie for

about an hour, and then the movie watched me as I went to sleep

on it. However, I’ve seen it 23 times, and it’s must, must-see viewing for everybody.

310

The story is Copper, the hound puppy, and Tod, the orphaned

fox, they became the best of friends. They did everything together.

They laughed and they played together to no end. Then 1 day Copper the hound and Tod the fox found themselves all grown up. Tod

wanted to get together with Copper to have some more fun and relive the good old days, and Copper’s heart seemed to skip a beat

when he had to say to Tod, ‘‘I can’t play with you any more. I’m

a hunting dog now.’’ In other words, ‘‘I can’t be your friend any

more. Forget we were the best of friends. Forget we laughed together and played together. Forget all those great times together

and all those other things. Forget about all of that. I’m a hunting

dog now.’’ Well, I notice that any time we have a confirmation, the hunting

dogs come out. We have them on the Republican side, we have

them on the Democrat side. Members of the Committee, I’m not

saying that John Ashcroft has been best of friends with all of you.

However, over the last 6 years, you’ve seen his heart. You know

him. You’ve observed him up close and personal. You know he’s not

a racist as some would suggest. You know he’s not anti-woman, as

some would suggest.

Yes, you know that just like Senator Lieberman, John Ashcroft’s

faith is very important to him. They both never want their faith

to be offensive to anyone, yet they never apologize for it.

You have observed Senator Ashcroft to be a man of compassion,

strength and integrity. He is extremely qualified. He is eminently

qualified to be the next Attorney General of the greatest nation in

all the world.

Obviously, this decision will rest with you, the Senators, but I

encourage your support for Senator John Ashcroft as the next Attorney General to uphold the laws and the Constitution of the

United States, so help him God. Thank you very much, Chairman

Leahy.

[The prepared statement of the Mr. Watts follows:]

STATEMENT OF HON. J.C. WATTS, JR. A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF OKLAHOMA

Chairman Leahy, Ranking Member Hatch, senators of the Judiciary Committee,

thank you for affording me the opportunity to address the nomination of Senator

John Ashcroft to be attorney general of the United States.

Let me say here at the outset that any man or woman, Republican or Democrat,

liberal or conservative, that would sit through this process for three days and have

bombs thrown at him should be confirmed for whatever.

Mr. Chairman, John Ashcroft is a man of the highest integrity. I have worked

with him in the renewal alliance, putting together legislation targeting poor and underserved communities for homeownership, savings, job creation and capital formation. (The president signed this legislation into law about a month ago.)

I have campaigned with him in Saint Louis and have known him for six years.

I have never known him to be a racist nor have I ever detected anything but dignity

and respect for one’s skin color from John Ashcroft.

He is a man of principle. He has been scrupulously put through an inquisition

of mammoth proportion and it is safe to say this committee has looked into everything dealing with the career and character of John Ashcroft. We all know that no

one is going to please all of you all of the time. But John Ashcroft takes defending

and upholding the law seriously, and that is what matters most.

The responsibility of the attorney general is to defend and uphold the law—not

to make the law. It is the responsibility of Congress to make law.

I have watched bits and pieces of these hearings during the last two, two-anda-half days. I haven’t watched all of them—believe it or not, Little League, soccer

and junior varsity basketball games go on in spite of these very important hearings.

311

There is not a lot I can say today that hasn’t already been said during these proceedings. However, I will say I am delighted that outside groups aren’t making the

determination on Senator Ashcroft. I heard Senator Biden say yesterday that he did

not trust many of the interest groups. Senator Biden, I agree with you. Neither do

I. I have been blind-sided by them before and so many of these groups totally disregard facts. Not only do they want their own opinion, they want their own facts.

So, Senator Biden, I can relate to what you said yesterday.

I am delighted that people who know Senator Ashcroft best will make the call on

his confirmation, and in your deliberations I would ask you to consider his qualities,

his qualifications and his integrity.

Last Monday, after observing Doctor King’s birthday, my elevenyear-old daughter

and I were watching the Disney movie, ‘‘The Fox and the Hound.’’ I watched the

movie for about an hour—and then the movie watched me as I went to sleep on

it. However, I’ve seen it twenty-three times. This is a must-see movie.

The story is: Copper (Hound Puppy) and Tod (the orphaned Fox) became the best

of friends. ‘Did everything together. They laughed and played together to no end.

Then one day Copper (Hound) and Tod (the Fox) were grown up. Tod wanted to get

together with old Copper and Copper’s heart missed a beat in having to tell Tod,

‘‘I can’t play with you anymore, I’m a hunting dog now.’’

In other words, I can’t be your friend anymore. Forget we were the best of friends.

Forget we laughed together and played together. Forget all those great times together and all those other things.

Well, members of the committee, I’m not saying John Ashcroft has been best

friends with all of you, however, over the last six years you have seen his heart.

You know he is not a racist, as some would suggest.

Yes, you know that just like Senator Lieberman, John Ashcroft’s faith is important to him. They both never want their faith to be offensive to anyone, yet they

never apologize for it.

You have observed Senator Ashcroft to be a man of compassion, strength and integrity.

He is extremely qualified to be the next attorney general of the greatest nation

in the world.

Obviously, this decision will rest with the Senate, but I encourage your support

for John Ashcroft as the next attorney general to uphold the laws and the Constitution of the United States, so help him God.

Thank you very much.

Chairman LEAHY. Thank you, Mr. Watts. I would state parenthetically that I am 60 years old, quite a bit older than you are.

Our children came along before we had VCRs as youngsters. By the

time we had them, they were old enough that they did not want

me around to see what they were watching, so I did not have the

chance to memorize these. I now have a soon-to-be 3-year-old

grandson. If you would like me to tell you the whole script of

‘‘Thomas the Train’’, every song, I can do it in my sleep, and often

have.

Mr. Hulshof.

STATEMENT OF HON. KENNY HULSHOF, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MISSOURI

Representative HULSHOF. Mr. Chairman, thank you. I appreciate

very much the invitation to be here, and as you alluded to just a

moment ago, I’m sure my dear mother back in Missouri appreciates

your kind words today, especially in light of the little brouhaha

that occurred last night. I do appreciate the change to be with you.

Chairman LEAHY. I assure your mother that you are one of the

hardest-working and most valued members of the Congress.

Representative HULSHOF. I appreciate that, Mr. Chairman.

That’s high praise.

Members of the Committee, as pleased and honored as I am to

be here today with my good friend and colleague, J.C. Watts, my

312

appearance here today is not as a sitting member of the U.S. House

of Representatives.

And, Mr. Chairman, if it is permissible, I would like to have my

entire written statement submitted into the record, so that I could

perhaps address some of the points that have come before this

Committee in the last 2 days.

Chairman LEAHY. It will be.

Representative HULSHOF. I sat through and listened very closely

to Judge White’s testimony today, and I found it very compelling

and very sincere, no less compelling and no less sincere than the

testimony that you heard from your former colleague, I believe,

John Ashcroft over the last 2 days. I do not know Judge White personally. I know him from the pages of the opinions that he has

written. I know probably, I presume, that he knows me through the

many thousands of pages of court transcripts that I had the occasion to participate in, criminal trials back in Missouri, and I am

not here in any respect to cast aspersions. I am a member of good

standing in the Missouri bar, and I’m very watchful of my comments toward a sitting member of the Judiciary.

However, as the co-prosecutor in the James Johnson case, which

has received such national attention, and I think it’s received national attention, not because of the gruesomeness of the facts of a

convicted multiple cop killer, but because, as my friend J.C. has alluded to, these horrendous charges that John Ashcroft’s vote

against Judge White was based on other than legal grounds. These

comments or insinuations, either overtly or not so overtly, of racial

motivations, have me, as John’s friend and as a Missourian, deeply

troubled. And so let me, if I can, as a fact witness, talk a little bit

about this particular criminal case.

I was a special prosecutor for the Missouri Attorney General for

a number of years and was assigned to assist the locally elected

prosecuting authority, John Kay, in Moniteau County, back in—

when these crimes occurred in 1991. Mr. Chairman, you all have

talked at length about those facts, and I set them out in my written statement, but I want to just focus on some things perhaps to

give you a sense of gravity about what this case meant to this

small rural community.

In early December 1991 Moniteau County Deputy Les Roark was

dispatched to a disturbance call in rural Moniteau County, and as

anyone in law enforcement can tell you, those are some of the most

difficult cases to respond to because you never know the situation

that you are being injected to.

Well, after Deputy Roark assured himself that this domestic

quarrel had ended at the James Johnson residence, and as he

turned to retreat to go to his waiting patrol car, James Johnson

whipped out a .38 caliber pistol from the waistband of his pants

and fired two shots into the back of the retreating officer. Johnson

then went back into the home, sat down where he could hear the

moans of the officer clinging valiantly to life, laying face down on

the gravel driveway outside his home. At that point Johnson then

got up from the table, walked outside, pointed his gun over the fallen officer, and pulled the trigger one last time in an execution-style

killing.

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And the thing about this particular crime that is particularly offensive, is that as they say in the law enforcement business, the

officer, though armed, never cleared leather. His gun remained

strapped in his holster.

Shortly after that James Johnson got into his vehicle and negotiated 10 or 12 miles of winding road, looking for the sheriff of the

county, Kenny Jones. He knew where the sheriff lived, and as luck

would have it, Sheriff Jones was not at the residence, but the sheriff’s wife, Pam was. And again, as fate would have it on that night,

Mrs. Jones was leading a group of her church friends in the Christmas program. And if I can try to, Mr. Chairman, paint a visual picture for you. Imagine a normal living room somewhere in America,

with a woman seated at the head, and women on folding chairs

around her in the living room, with Pam Jones’ 8-year-old daughter, Lacy, at her knee. Christmas decorations adorn the living

room, and on a table next to the window, brightly wrapped Christmas packages waiting to be exchanged.

What you cannot see in that picture, however, just outside that

window, James Johnson lay in wait with a .,22 caliber rifle, and

from his perch shot five times inside the house, killing, gunning

down Pam Jones in cold blood in front of her family.

If the Chairman would permit, he is not here to testify today, but

if I might be permitted to single out Pam Jones’ husband, who

made the trip here today, Sheriff of Moniteau County, Kenny

Jones. And may I ask him to stand, Mr. Chairman?

Chairman LEAHY. Of course.

[Mr. Jones stood.]

Mr. HULSHOF. There is a statement that Sheriff Jones has submitted, and perhaps if time permits at the conclusion, there are a

couple of excerpts that I might like to exercise, but, please, I hope

you would take time to examine the entirety of Sheriff Jones’ written testimony, particularly as it points to the dispute about this

letter from law enforcement and who was the initiating body in

that regard, and I’ll move on in the interest of time.

Chairman LEAHY. I direct the staff to make copies for each Senator, and make sure a copy is given to each member of the panel.

Mr. HULSHOF. Mr. Chairman, without further delving into the

facts because I think, as most of you have indicated through these

days, that you have read the Supreme Court opinion where Judge

White dissented and he was the sole dissent.

But what I do want to focus on is the record regarding assistance

of counsel, because apparently, as I listened to Judge White this

morning, that was his sole basis for voting to overturn and reverse

this—these four death sentences for these four crimes. Actually,

there were two other victims who had fallen victim to Mr. Johnson

that night, and a fifth officer who was wounded seriously, who miraculously survived. The jury in that county found four counts of

first degree murder, with a corresponding death sentence on each

of those counts of murder.

The points I’d like to raise briefly about the qualify of James

Johnson’s representation is this. He hired counsel of his own choosing. He picked from our area in mid Missouri what we’ve referred

to—as I refer to as a dream team. And, Senator Sessions, as you

pointed out earlier, the resumes of these three individuals who

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were experienced attorneys in litigation as well as criminal law, attorneys who had tried a capital murder case together. There was

a finding by another court that they provide highly skilled representation as they tried to deal with these very unassailable facts,

this very strong case that the prosecution had. There was a detailed confession Mr. Johnson had given to local law enforcement

officers. There were other incriminating statements that he had

made to lay witnesses. We had circumstantial evidence, including

firearms identification, a host of other factors.

And against this backdrop of a very tough prosecution case, these

three defense attorneys labored mightily to try to provide an insanity defense, post-traumatic stress disorder, commonly referred to as

the Vietnam Flashback Syndrome. And without question—and

again, perhaps with just a further comment, I defended a capital

murder as a court-appointed public defender, and then after I

switched sides and became, as you, Mr. Chairman, on the side of

law enforcement, became a prosecuting attorney, over the course of

my career, I think I prosecuted some 16 capital murder cases in

Missouri, and I can tell you without question that this team of defense attorneys were very able, and provided very skilled adequate

representation as the law would require.

Finally, regarding the point—and I know the Chairman’s been

gracious with my time—what I would like to do is read just a couple of the excerpts, as Sheriff Jones is here and will not be called

as a witness, but particularly again on this point of the letter from

law enforcement authorities.

Says Sheriff Jones: ‘‘As you know, much has been said about

John Ashcroft and his fitness for this office. I, for one, support his

nomination and urge this Committee to support him as well. Last

year Senator Ashcroft was unjustly labeled for his opposition to the

nomination of Judge Ronnie White to the Federal District Court.

This one event has wrongly called into question his honor and integrity. Be assured that Senator John Ashcroft had no other reason

that I know about to oppose Judge White except that I asked him

to. I opposed Judge White’s nomination to the Federal bench, and

I asked Senator Ashcroft to join me because of Judge White’s opinion on a death penalty case.’’

Moving the page 3, again Sheriff Jones: ‘‘In his opinion, Judge

White urged that Johnson be given a second chance at freedom. I

cannot understand his reasoning. I know that the four people Johnson killed were not given a second chance. When I learned that

Judge White was picked by President Clinton to sit on the Federal

bench, I was outraged’’, says Sheriff Jones. ‘‘Because of Judge

White’s dissenting opinion in the Johnson case, I felt he was unsuitable to be appointed for life to such an important and powerful

position. During the Missouri Sheriffs’ Association Annual Conference in 1999, I started a petition drive among the sheriffs to oppose the nomination. The petition simply requested that consideration be given to Judge White’s dissenting opinion in the Johnson

case as a factor in his appointment to the Federal bench. 77 Missouri sheriffs, both Democrats and Republicans signed the petition,

and it was available to anyone who asked.’’

‘‘Further, I asked’’, says Sheriff Jones, ‘‘I also asked that the National Sheriffs’ Association support us in opposing Judge White’s

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nomination. They willingly did so, and I am grateful that they

joined us and wrote a strong letter opposing Judge White’s nomination.’’

And with that, I appreciate the deference of the Chairman, I

would be happy to answer questions about this case or others.

[The prepared statement and an attachment of Representative

Hulshof follow:]

STATE OF HON KENNY HULSHOF, A REPRESENTATIVE IN CONGRESS FROM THE STATE

OF MISSOURI

I would like to thank Chairman Leahy and Ranking Member Hatch for the opportunity to testify before this committee.

I fully support President-elect Bush’s decision to nominate Senator John Ashcroft

to the position of Attorney General. His past service to the people of my home state

of Missouri as Attorney General, Governor and Senator give him the experience and

knowledge to be an effective agent of justice for all Americans.

I am not here today as a U.S. Representative from Missouri’s Ninth District. My

appearance here is to share with you my unique knowledge of the case of State of

Missouri v. James Johnson.

From February of 1989 until January of 1996,1 served as a Special Prosecutor for

the Missouri Attorney General’s Office. In this capacity, my duties included the

prosecution of politically sensitive or difficult murder cases across the State of Missouri. I handled cases in 53 Missouri counties and have tried and convicted violent

criminals in more than 60 felony jury trials. In January, 1992, I was assigned as

co-counsel in the prosecution of the Johnson case.

As you know, the Johnson case has taken on national prominence, but not because it involves a convicted cop killer. It has become a focal point in this process

due to the strong disagreement that John Ashcroft and some law enforcement

groups had with Missouri Supreme Court Judge Ronnie White’s sole dissent on the

appeal of this case.

You are measuring John Ashcroft’s ability to be the nation’s Attorney General by

examining his record. In the same manner, John Ashcroft measured Ronnie White’s

ability to be a federal jurist by scrutinizing his record and published opinions—not

his race as some have charged. John Ashcroft has testified that he had serious reservations about Judge White’s opinions regarding law enforcement.

Let me share with you the facts of the Johnson case:

In December of 1991, Moniteau County Deputy Sheriff Les Roark responded to

a domestic disturbance call at the home of James Johnson in rural Missouri. After

assuring himself the domestic quarrel had ended, Deputy Roark turned to return

to his waiting patrol car. James Johnson whipped a .38 caliber pistol from his waistband of his pants and fired twice at the retreating officer. Johnson, realizing that

Roark was clinging valiantly to life, walked over to the fallen officer and shot him

again execution-style.

He next negotiated the dozen or so miles to the home of Moniteau County Sheriff

Kenny Jones. Peering through the window, he saw Pam Jones, the sheriff’s wife.

She was leading her church women’s group in their monthly prayer meeting in her

family’s living room, her children at her knee. Using a .22 caliber rifle, Johnson

fired multiple times through the window, hitting her five times. She was gunned

down in cold blood in front of her family.

I wish I could tell you that the carnage soon ended. Instead, James Johnson proceeded to the home of Deputy Sheriff Russell Borts. Displaying the methodical demeanor of a calculating killer, Johnson shot Deputy Borts four times through a window as Borts was being summoned for duty via telephone. Miraculously, Borts survived. Cooper County Sheriff Charles Smith and Miller County Deputy Sandra Wilson were not as fortunate. They died in a hail of bullets when Johnson ambushed

them outside the sheriff’s office.

As a result of Johnson’s rampage, three dedicated law enforcement officials were

dead, one was severely injured and Pam Jones, a loving wife and mother, had been

slaughtered.

Mr. Chairman, I wish to clarify a few of the points raised during yesterday’s hearing regarding the quality of James Johnson’s representation at trial. Mr. Johnson

hired counsel of his own choosing. He chose a team of three experienced defense attorneys who possessed substantial experience in litigation and criminal law. The

three litigants had tried a previous capital case together.

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The record conclusively establishes that counsel launched a wide-ranging investigation in an effort to locate veterans who had served with the accused in Vietnam.

Counsel hired and presented three nationally-renowned mental health experts on

the relevant issue of posttraumatic stress disorder.

The evidence of guilt, however, was unassailable. Based on the strength of a detailed confession by the accused to law enforcement officers, incriminating statements to lay witnesses, eyewitness accounts to one of the murders and circumstantial evidence, including firearms identification, James Johnson was convicted by a

jury of four counts of murder in the first degree. The jury later unanimously recommended a sentence of death on each of the four counts.

After a lengthy post-conviction hearing on the adequacy of counsel, Circuit Judge

James A. Franklin, Jr. found that Johnson’s attorneys devoted a significant period

of time and expense to his case, including a substantial attempt to develop and

present a mental defense. The court found as a matter of law that James Johnson

received skilled representation throughout his trial. The case was then automatically appealed to the Missouri Supreme Court, where the convictions and sentences

were upheld 4–1. Judge White’s lone dissent focused on inadequate assistance of

counsel at trial. As I have stated and the record indicates, this is clearly not the

case.

I have been deeply troubled during these confirmation proceedings by statements

insinuating, overtly or otherwise, that John Ashcroft is a racist. More to the point,

there have been allegations made that John Ashcroft’s rejection of Judge Ronnie

White’s nomination to the federal district court was racially motivated. As a Missourian, I am offended by these baseless claims.

It is my belief that members of this distinguished panel and members of the entire Senate take the constitutional role of ‘‘advice and consent’’ very seriously. It is

an integral part of our system of checks and balances.

It is my humble opinion that no individual took that responsibility more seriously

than your former colleague, John Ashcroft. As evidence of that fact, I cite to you

the October 5, 1999, Congressional Record:

[Mr. Ashcroft] Confirming judges is serious business. People we put into these Federal judgeships are there for life, removed only with great difficulty, as evidenced by the fact that removals have been extremely rare. There is enormous

power on the Federal bench. Most of us have seen things happen through

judges that could never have gotten through the House and Senate. Alexander

Hamilton, in Federalist Paper No. 78, put it this way:

‘‘If [judges] should be disposed to exercise will instead of judgement, the consequence would equally be the substitution of their pleasure to that of the legislative body.’’

Alexander Hamilton, at the beginning of this Nation, knew just how important it

was for us to look carefully at those who would be nominated for and confirmed

to serve as judges.

Former Senator Ashcroft then elaborated on the dissenting opinions by Judge

White in a series of criminal cases, including State of Missouri v. James Johnson.

He acknowledged an outpouring of criticism levied against Judge White’s nomination by respectable law enforcement groups. His ultimate rejection of Judge White’s

nomination was based on his judgement and legal reasoning. As you know, a majority of the Senate voted to reject the nominee.

Reasonable minds can differ on John Ashcroft’s conclusion regarding Judge

White’s fitness as a federal jurist. These differences should be vigorously debated

and considered. That is the hallmark of our republic. But branding a good man who

has devoted his professional life to one of public service with the ugly slur of ‘‘racist

without justification or cause is intolerable.’’

I know John Ashcroft. He is an honorable man of high integrity and morals. His

commitment to his family, his state and his country are beyond compare. His experience and public service make him very qualified to be the next Attorney General

of the United States. You have his assurance that he will faithfully execute the law

in a way consistent with the will of Congress, in accordance with the rulings of our

judicial system and in a manner that protects the liberties of all Americans.

Again, I would like to thank Chairman Leahy, Ranking Member Hatch and this

distinguished panel for allowing me testify.

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HON. KENNY HULSHOF

Committee on Ways and Means

Washington, DC 20515

Hon. Patrick J. Leahy

Chairman

U.S. Senate Committee on the Judiciary

223 Hart Building Washington, D.C. 20510-0001

Washington, DC 20510–001

Dear Senator Leahy:

As a matter of personal privilege, I respectfully request that I be allowed to testify

on the same witness panel as Judge Ronnie White during your confirmation hearings on the nomination of Senator John Ashcroft to be United States Attorney General.

My appearance before the Judiciary Committee does not come because I am a sitting Member of the U.S. House. My appearance is solely because I was co-counsel

in the prosecution of a murder case which became a critical issue during the consideration of Judge White’s nomination to the Federal bench. I believe I can provide

significant and unique testimony relevant to the State of Missouri vs James Johnson

and Judge White’s expected testimony.

Your current invitation to have me testify as part of a panel consisting of interested Members of Congress will not provide the Judiciary Committee with a full,

fair and accurate account of the James Johnson case.

I respectfully request that my appearance occur on the same panel as Judge

White. Any other invi ion would reflect a politicization of the hearing process and

would be unfair to the Senate, the in coming Administration, and the American people.

Sincerely,

KENNY HULSHOF

Member of Congress

Chairman LEAHY. I thank you. I thank both members. And I do

appreciate Sheriff Jones being here. I repeat part of what I said on

the Senate floor about Sheriff Jones on October 21st, 1999. I said

I certainly understand and appreciate Sheriff Kenny Jones deciding

to write his fellow sheriffs about this nomination. Sheriff Jones’

wife was killed in the brutal rampage of James Johnson, and all

Senators give their respect and sympathy to Sheriff Jones and his

family. The one thing we all agreed upon, Sheriff, was how horrified we were at what happened, and the sympathy we have.

Like a number of others in the Senate, I have prosecuted a number of murder cases. In fact, for 8 years I tried virtually all of the

murder cases, tried them personally, that came within our jurisdiction. Some of them are horrific, others were an example of, as anybody in law enforcement knows, what we call and use that terrible

expression, ‘‘the friendly murder’’, the family dispute that gets out

of hand.

The description of this murder is the most horrible one I have

ever heard. That is not a question. Nobody disputes the horrible

and terrible nature of this murder. Nobody disputes the right of the

State of Missouri to impose whatever penalty they have on the

books. Whether somebody is for or against the death penalty, if it

is on the books, nobody disputes their right to do that. And everybody subscribes to the right of a fair trial. The question, of course,

comes in this, not whether Justice White was saying this person

should be freed. As he stated here today, that is not what his ruling was. His ruling was to remand. He was a dissent in that remand for a new trial.

But, Congressman, you have been, as you said yourself, both a

prosecutor and a public defender. Before I was a prosecutor, I deVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00331 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
318

fended only on an assigned-counsel basis. We didn’t start a public

defender service until probably through my prosecutor’s career.

Frankly, I found it easier being the prosecutor.

But you had to help defend a person who was accused of murder,

and I would assume that as that defense attorney you zealously

worked to acquit him. Would that be right? I mean, that is what

you would be required to do.

Representative HULSHOF. Zealously defend the man accused to

the best of my ability, and certainly a lesser offense, or to spare

the death penalty, I think as any defense attorney is charged to do.

Chairman LEAHY. I would assume under Missouri procedure you

would have—once there has been a conviction, you have then a

subsequent hearing on the question of penalty. And I assume that

you would argue, of course, that even though now he has been convicted of murder, you would then argue that he not get the death

penalty.

Representative HULSHOF. That is correct, Mr. Chairman.

Chairman LEAHY. And, actually, under the canons of ethics, once

having accepted that assignment, you have to do that, do you not?

Representative HULSHOF. That is correct.

Chairman LEAHY. Now, there are also requirements on the prosecutor. In the Johnson case, the Missouri Supreme Court had

raised questions about the suggestive silence in a deposition and

the failure to correct misstatements during a deposition. The majority decision—now, this is a majority that upheld Johnson’s conviction and death penalty—said, ‘‘This court does not condone the

conduct of the State in failing to correct the erroneous implication

from its own confusion about the perimeter defense.’’

You have both a defense attorney and a prosecutor. Both are expected to do their best to win their case. Is that a fair statement?

Representative HULSHOF. It is, Mr. Chairman, with some qualification, and I will be happy to state this.

Chairman LEAHY. Go ahead.

Representative HULSHOF. Clearly, the challenge for any defense

attorney is to aggressively, zealously, within the bounds of law and

the canons of ethics, defend a client. The prosecutor’s role is even

a bit greater than that, not to be simply out to win the case but

to be, I think as the canons say, a minister of justice.

Chairman LEAHY. You presuppose my next question. In this case,

the Johnson opinion, if I am correct, was critical of the State, as

they said, for failing to correct the erroneous implication from its

own confusion about the perimeter evidence. Is that correct?

Representative HULSHOF. I am not sure of the exact—I have got

the opinions, but I would love to be able to explain since I have

never had the opportunity to talk about it, and perhaps just to set

the record here, the perimeter evidence, as you might expect, when

the hue and cry went out to law enforcement that there had been

this crime spree, this rampage over a period of time, roughly between 7:30 in the evening until 1:20 the next morning, hundreds—

in fact, as we learn later, probably over a hundred officers responded and participated in this manhunt. The defendant, James

Johnson, actually concealed himself in the home of an 82-year-old

woman.

319

Chairman LEAHY. The call of ‘‘officer down’’ galvanizes all law

enforcement.

Representative HULSHOF. Absolutely.

Chairman LEAHY. I have been there. I know what that is like.

Representative HULSHOF. And at some point, after Mr. Johnson

had been taken into custody and the tedious process of the collection of evidence began, it was determined there was this crude

alarm system, as the court calls it, perimeter evidence, of a rope

with some tin cans, and inside those tin cans pieces of gravel, so

that if a person were to trip it, you would hear this noise. It was

collected by the officers, but there was no report as to who had collected it, who had put it there. There was also some evidence that

the vehicle that Mr. Johnson had abandoned had four flat tires and

no one was quite sure—at least there were no police reports indicating who had flattened those tires. And so, really, it was not a

relevant trail for the prosecution to go down, and we did not know,

Mr. Chairman, as we walked into court on the day that the trial

began, who had set the perimeter evidence, who had disabled the

car. And, quite frankly, our theory of the case was focusing on

these nationally renowned mental experts that the defense had

hired to bring in on post-traumatic stress disorder. We were clearly

focusing on other matters, thinking this perimeter evidence to be

a curiosity.

Chairman LEAHY. The testimony here has been that in 95 percent of the death penalty cases in which Judge White participated,

he voted with at least one and usually more of the judges appointed by then-Governor Ashcroft. Would that be fair to characterize that record as pro-criminal or a bent toward criminal activity?

Representative HULSHOF. Judge—excuse me, Mr. Chairman. I

have already put you on the Federal bench. Mr. Chairman, I— Chairman LEAHY. I only get the chairmanship for a few days, so

I will take the bench, if you want to throw that in while we are

at it. Go ahead.

Representative HULSHOF. Again, I want to be very cautious as

far as my response of articulating a position on Judge Ronnie

White. But what I am here to say is that, as you all have debated

and as I have watched with fascination, Senator Ashcroft was here

telling the Senate, as he did on the Senate floor to his colleagues,

that it wasn’t for any other reason, certainly not for racial reasons,

as we have heard, that led to his decision to vote against the confirmation of Judge Ronnie White. And it wasn’t even this one single case, Mr. Chairman, you and I have been chatting about. It was

in John Ashcroft’s mind a pattern or series of cases.

Chairman LEAHY. Then maybe I should ask you—and I don’t

think it is fair either to you or to Senator Ashcroft for you to go

into his mind—but would you characterize Judge White’s record as

being either pro-criminal or having a bent toward criminal activity?

Representative HULSHOF. Again, as—I am not ducking your

question. As a member of good standing on the Missouri Bar, I

want to be very cautious about making any statements about a

judge, and, clearly, as a member of the other body who has no authority to vote to confirm or not to confirm any person that is not—

I appreciate your question, Mr. Chairman, but I hesitate to make

a personal assessment of Judge Ronnie White.

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Chairman LEAHY. I understand.

Senator Hatch?

Senator HATCH. I want to thank both of you for coming. J.C., you

are one of my heroes, and, frankly, everybody here knows what a

fine man you are and what a good example you are to everybody.

And I appreciate your testimony here today and your support for

Senator Ashcroft.

Let me just say this: Sheriff Jones, we appreciate you being here

today. We know how deeply you feel, and your firsthand account

of what happened and the reasons you opposed Judge White will

be made part of the record.

I also want to thank you for reminding us of an important point

that I am afraid some of us often overlook, and that is, decisions

made by judges in this country can have a profound impact on the

lives of our local citizens and law enforcement personnel. And for

that reason, we should listen carefully to the views people like

yourself express.

In particular, Congressman Hulshof, I have a lot of admiration

for you and for the life that you have lived and the work that you

have done as a prosecutor, as an attorney. You have been in the

big time as far as death penalty cases are concerned. And I think

the knowledge you bring to Congress is very important. I for one

would want to get even better acquainted than we are now. I know

it is not easy for you to testify here today, but it is important that

you do.

Earlier today, Congressman Hulshof, we heard testimony from

Judge White. I was very impressed with Judge White when I conducted the hearing. So my opinion of Judge White is a good one.

But let me just say this: There is room for two sides on this issue.

I am not going to condemn my Democratic colleagues for their very

sincere vote for Judge White. Nor am I going to condemn my Republican colleagues for their very sincere vote against him. There

were some pretty crass comments made at the time, but I think

there is room here to go either way, as much as I like Judge White,

and I do.

But we heard testimony from Judge White earlier today that his

dissent in the Johnson case was based on settled Supreme Court

case law as stated in the Strickland case. Are you familiar with

that case?

Representative HULSHOF. Yes, sir, I am.

Senator HATCH. All right. Now, you are an experienced death

penalty litigator and an expert in case law. Would you be kind

enough to explain for the benefit of all of us here on the Committee

the law and its relationship to effective assistance of counsel and

how all the other justices disagreed with Judge White’s interpretation of the law in the Johnson case? I would like you to explain

what the law is and what exactly would have been the effect on

law enforcement in Missouri and victims’ rights. Some of the most

compelling testimony we have had has been the testimony on this

last panel on victims’ rights which I appreciated. But what would

have been the effect on law enforcement and victims’ rights if the

Missouri Supreme Court had held in the Johnson case, and other

cases perhaps, the way Judge White would have liked the court to

have decided in that case?

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I don’t mean to put you on the spot, but I think that question

has to be answered.

Representative HULSHOF. Senator, I appreciate your kind words,

and I will attempt to answer the questions as you put them to me

and do that as expeditiously as I can.

I think it goes back to the Senator from my neighboring State

of Illinois, as I listened to the colloquy yesterday about his—I think

the question—forgive me for paraphrasing. I don’t have your transcript, Senator Durbin. But is an error committed by a trial lawyer

sufficient in and of itself—and I am paraphrasing what you said,

but is an error committed by the criminal defense attorney in and

of itself sufficient to overturn a sentence or a conviction? And the

United States Supreme Court case law, which our State Supreme

Court is deemed to follow, says it is not, that simply an error committed by defense counsel is insufficient because essentially there

are errors committed in, whether death penalty cases or even in a

felonious stealing case.

Senator HATCH. Was that the rule of law that should have been

applied in this case?

Representative HULSHOF. It was not the rule of law that should

have been applied, and I think that the majority opinion in the

Johnson case adequately and accurately described what that standard is. It is: Is it as a result of any error by a defendant’s counsel

that it created a reasonable likelihood or probability that the outcome of the case would have been different but for the error. And

so I think, again, the majority opinion in the Johnson case correctly

stated the law.

I see the red light is on, and let me undertake— Senator HATCH. You can continue the answer. I will ask my colleague to just give me a few more minutes.

Chairman LEAHY. Of course.

Representative HULSHOF. Let me, if I could, try to answer the

second part of your question as far as the effect of law enforcement,

and I really—to this distinguished panel, the numbers that have

been talked about as far as the number of affirmations or the number of dissents, I really don’t know. I have not done that research,

and I am sure that those numbers are accurate.

But it is a little bit—I think it is troubling for me, again, going

back to my former days as someone who toiled in the courtrooms

around our State, it is troubling to try to negotiate or talk about

these terms as far as statistics. I think the farther that I personally get away from those days when I stood this far away from a

box, a jury box, where 12 ordinary citizens were asked by the prosecution to do extraordinary things, I think the farther I get away

from that experience, perhaps the more I forget about how extremely difficult those cases are. They are physically demanding,

emotionally draining, not just for the litigants but for the jurors

that we put into those positions and for the defendant’s family and

certainly for the victim’s family.

And the point I hope to make, Senator Hatch, is that any time

that there is a reversal or any time an esteemed jurist writes a dissent, it is—in a reversal, in the case of a reversal, it is at least the

opportunity that that convicted killer can be free. Or in the case

of a dissent, it is a message to law enforcement, it is a message

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to victims like Sheriff Kenny Jones, that perhaps their sacrifice has

been somewhat in vain.

And so, clearly, again, I see that I am probably teetering on the

line. This is not any comment on Judge White per se, but I answer

that question in the larger context in which you gave it.

Senator HATCH. Thank you very much.

Chairman LEAHY. The senior Senator from New York.

Senator SCHUMER. Thank you, Mr. Chairman. And I want to

thank both of our witnesses for taking their time and being here,

and I also want to convey my respects and sadness to Sheriff Jones

for his loss, as well as to Ms. Campbell for her loss. I am sorry.

We had another hearing, and I couldn’t be here for your testimony

or those of the others. And as somebody who has been with families

who have had losses in these horrible kinds of incidents, my heart

goes out to both of you.

I would like to just focus a little bit with Representative Hulshof

in terms of this specific issue which troubles me, because the only

thing, as I understand it, that Judge White did in this case was

to say that as a legal matter he believed that the defendant had

received ineffective assistance of counsel with regard to his insanity defense. And there is a debate about that, which we have heard.

Representative HULSHOF. Yes, sir.

Senator SCHUMER. And that is a fair debate. But in no way did

Ronnie White condone these grisly crimes. In fact, the first sentence of his opinion reads, ‘‘I would find the result troubling.’’ And

at the end of his opinion, he said, ‘‘This is a very hard case. If Mr.

Johnson was in control of his faculties when he went on this murderous rampage, then he surely deserves the death sentence he

was given.’’ That doesn’t indicate somebody to me who is pro-criminal or even on that instance ‘‘soft on crime.’’ I mean, I have been

in my State one of the people who has pushed for tougher laws,

whether it be capital punishment or ending parole or things like

that.

But when somebody, a judge or somebody else, is talking about

a fair trial, I don’t think fair trial ever enters into what side one

is on. There is a balance between societal rights and individual

rights. But all of us would agree both play a role.

So I would just like to ask Representative Hulshof, would you

say that any candidate to judge should be rejected because as a

legal matter he had written an opinion questioning the effectiveness of counsel? That is what I don’t understand. I have come

across people on the bench who I would characterize as soft on

crime. I don’t think a decision saying that there was ineffective

counsel, whether it be right or wrong—that is not what we are debating here, in my judgment, anyway—entitles you to say that

somebody is pro-criminal, or whatever the other expression was

that Senator Ashcroft used on the floor of the Senate.

Could you comment on that?

Representative HULSHOF. I would be happy to, Senator Schumer.

Let me say also I appreciated the 2 years that we served together

in the U.S. House.

Regarding the—let me just even take a little further—Judge

White’s dissent went further, and this is where I can’t speak for

John Ashcroft. But as a prosecutor, here is the language that I find

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particularly troubling. It is the sentence just where you stopped.

But the question of what—and I am quoting from State v. Johnson

at page 16. ‘‘But the question of what Mr. Johnson’s mental status

was on the night is not susceptible of easy answers. While Mr.

Johnson may not, as the jury found, have met the legal definition

of insanity, whatever drove Mr. Johnson to go from being a lawabiding citizen to being a multiple killer was certainly something

akin to madness.’’ Now, it is my understanding, with all due respect to Judge

White, but the role of an appellate court is not to substitute the

judgment of the court for that of the jury, and particularly as, Senator Schumer, you or I as lay persons might say that going from

a law-abiding citizen to a multiple cop killer is madness or something akin to madness, that is not the legal definition of what constitutes a mental disease in our State.

But putting that aside, I think you ask another good—and I will

just be very candid with you. I personally do not believe that a single dissent is sufficient to disqualify any Federal jurist. And I know

I am going out on a limb because I am not a member of this body.

But—

Senator SCHUMER. But, you know, that is a fair standard. I

mean, if we were to use a single—take a single thing that Senator

Ashcroft did and just saw the world through that prism, we

wouldn’t be being fair to him.

Representative HULSHOF. But if I could be permitted to follow,

just as I don’t believe a jurist should be disqualified for one single

dissent, neither does John Ashcroft. He described for this panel

over the last couple of days a series of cases—in fact, as he talked

about on the floor of the U.S. Senate during this confirmation process a number of cases.

And, Senator Schumer, just as you have said that we can have— and reasonable minds can differ on whether this dissent was right

or wrong, but, clearly, I also believe, in John Ashcroft’s defense,

that reasonable minds could have disagreed over whether or not

Judge White was fit to be a jurist on the Federal bench for the rest

of his life. And that is the point.

Again, I am so deeply troubled and somewhat offended by some

of the statements regarding John Ashcroft’s vote against Ronnie

White being racially motivated. The record seems to be clear, and

you all have been discussing that because of, in John Ashcroft’s

opinion, this series of cases by a single judge since that reflected

on his fitness for office. And I think as John Ashcroft said on the

floor on October the 5th, if I am not mistaken, ‘‘whether we as a

Senate should sanction the life appointment to the responsibility of

the district court judge for one who has earned a vote of no confidence from so many in the law enforcement community in the

State in which he resides.’’ And reasonable minds can differ on

that.

But, clearly, the fact that we are discussing those decisions and

those qualifications has absolutely nothing to do with race. And so

that is the point of my—

Senator SCHUMER. Let me—Mr. Chairman? I was going to follow

up with a question, but if people are in a hurry, I do not have to

do that. I will defer. Go ahead. Senator Specter?

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Chairman LEAHY. Senator Specter was concerned that you had

gone over. You have gone over less time than he went over earlier

this morning, but if you want to refrain, we can go back— Senator SPECTER. Well, now, wait a minute, Mr. Chairman. That

red light has been on on the other side, including you, for a very

protracted period of time.

Chairman LEAHY. About 2 minutes 21 seconds.

Senator SPECTER. And when I was questioning Judge White, I

was cutoff. And I just asked you a question if the red light applies

only on this side of the table. That is my question.

Senator SCHUMER. I have no further questions, Mr. Chairman.

Chairman LEAHY. I think the record will show that both sides

have gone way over their time and that the Chair has given a great

deal of time to both sides, did not run the red light on either of

the two witnesses, both Republican Congressmen speaking on behalf of Senator Ashcroft, did run the red light on a number of people who spoke against him.

Senator Thurmond?

Senator THURMOND. Thank you.

Congressman Watts and Congressman Hulshof, I really appreciate your appearance today on behalf of Senator Ashcroft. Your

testimony is very important and beneficial to him and we thank

you.

I also want to thank Sheriff Jones. Sheriff, hold up your hand.

Thank you. I want to thank you for being here. Your dedication

and interest should be commended. I have the greatest respect for

all victims of crime. Crime is a terrible harm to our society, and

society must be tough on crime.

I thank you.

Chairman LEAHY. Now, there is an example of how to stay within the time.

The distinguished senior Senator from Illinois, Senator Durbin.

Senator DURBIN. Thank you very much, Mr. Chairman.

Congressman Watts and Congressman Hulshof, thank you for

joining us today. I want to say at the outset that, like John

Ashcroft and I believe yourself, Congressman Hulshof, I support

the death penalty and I voted for the death penalty. That is not

the issue here.

When I read the Johnson case, this horrific, murderous rampage

this man went on, destroying innocent lives, including the lives of

law enforcement, I can tell you that I feel sympathy for Sheriff

Jones and all the families involved in it. There is no question about

that.

I come virtually to the same conclusion that Justice White did.

If Mr. Johnson was in control of his faculties when he went on this

murderous rampage, he assuredly deserved the death sentence he

was given. But I have to disagree with one of the points that you

made, Congressman. For you to characterize Johnson’s defense as

a dream team really is a stretch. This man who committed these

murders signed a confession. If there was any defense, it was a

question of his mental capacity. And his defense counsel decided to

construct a defense, which is novel, the post-traumatic stress syndrome, and then proceed to argue that before the jury. And he used

as evidence of that this so-called perimeter which was around the

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defendant’s house and the fact that the tires on his truck were flat

to say this reminded the defendant that he was back in Vietnam

and he broke and he did these terrible things.

This dream team defense counsel had failed to interview two

State troopers in a death case who were on the endorsed witness

list, and in failing to interview these two State troopers, this defense dream team didn’t realize the perimeter had not been created

by the defendant but by the police and the air was let out of the

truck tires by the police as well. His entire defense disintegrated

in front of him. From the prosecution point of view, you were in

a pretty strong position, if the facts come out as they were in this

case, and his entire defense disappeared.

I raise a question about your defense dream team’s competence

that they would not interview two State troopers on the endorsed

witness list who clearly would have given them information to

rebut their entire defense. They got right smack dab in the middle

of the trial, and it disintegrated in front of them.

Justice White says, based on this, he doesn’t think they did a

good job as defense attorneys. Well, I want to tell you this: If I had

somebody important to me in my family who needed a defense attorney, I wouldn’t be calling this dream team. And I don’t believe

John Ashcroft, if he becomes Attorney General, would hire this defense dream team in the Department of Justice. At least I hope he

would not.

Justice White sat here this morning and said what he said repeatedly. He didn’t believe James Johnson should be released. All

he believed is that he was entitled to a fair trial and that the counsel he was given did not give him a fair trial.

How this comes together is this: You have a man who has devoted his life to the law, fought his way to complete law school, to

be the attorney for the city of St. Louis representing the police department, the first African-American to the Missouri appellate

court, the first African-American in the Missouri Supreme Court,

a lifetime of hard work and commitment to law, who reaches this

opportunity to become a Federal district court judge, and he is rejected after 27 months dangling before this Committee on the basis

of three court cases: the Demask case, which was cited by Senator

Ashcroft, in which Justice White’s opinion was confirmed by the

Supreme Court as the appropriate standard; the Kinder case,

where days before a trial a judge made not just insensitive statements but racist statements, and the question was raised as to his

bias; and the Johnson case.

And I just have to say to, Congressmen, to have a man’s entire

legal career tossed aside, to have him characterized as pro-criminal, to ignore the clear statistics of his support for death penalty

cases over and over again raises a question in my mind as to

whether or not he was treated fairly. I would like to give you a

chance to respond.

Representative HULSHOF. Thank you. It is interesting, and if I

could. I find myself at an unusual position, Senator Durbin, in that

as a 10-year career prosecutor that I am defending defense counsel,

the same individuals that are your adversaries, against in a courtroom, but let me put a couple of other facts out there because, as

you stated—and, again, not taking notes from your statement, comVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00339 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
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ing up with this extraordinary defense about this post-traumatic

stress or, as lay people call it, the Vietnam Flashback Syndrome.

When Mr. Johnson was arrested, he gave a detailed confession

and made reference to his service in Vietnam. When the hostage

negotiator was trying to negotiate over the telephone before Mr.

Johnson was apprehended, he had taken an 82-year-old woman

hostage in her own home, allowed her to leave. She informed law

enforcement officers that, ‘‘The man you are looking for is in my

house,’’ and so the helicopters come in and they surround the

house. An experienced hostage negotiator on a bullhorn says, ‘‘Pick

up the phone,’’ and then they commence a couple hours of conversation on the telephone which was recorded.

During the course of that conversation, the defendant, James

Johnson, was telling this Highway Patrol negotiator that, ‘‘I am the

only one left from my platoon. My platoon leader has been killed.’’ He even mentioned the name Sergeant Calley or Lieutenant Calley

which, of course, if you follow Vietnam history, as this, by the way,

Highway Patrol negotiator knew, that Lieutenant Calley probably

was a little older than Mr. Johnson, and so he was beginning to

suspect that maybe Johnson was trying to conjure up his own defense, but there were strong references during this back-and-forth,

during the hostage negotiation time where the defendant Johnson

was lacing his comments with ‘‘gooks’’ and other terminology that

are consistent, of course, with those who had experience in Vietnam.

Not only that, regarding the competency of counsel, they brought

in three of the most nationally acclaimed experts on post-traumatic

stress disorder. In fact, Dr. John Wilson—it is in the record—who

I had a very difficult time on cross-examination with, who is known

by some as the Father of Post-Traumatic Stress Disorder, who

wrote the diagnostic and statistical manual on PTSD was one of

their witnesses, and they had this group of experts that were renown around the country.

So, again, reasonable minds can disagree over effective representation, but I can tell you having been on the other side of this case

in the courtroom, having to battle very day these exceptionally

skilled attorneys, I believe that his representation was extremely

adequate as far as assistance of counsel that the law requires.

Senator DURBIN. If you will spare me and allow me one closing

sentence. If reasonable minds can disagree, can you understand

how one Justice on the Supreme Court might dissent in this case

and not be pro-criminal and not be soft on the death penalty and

have his entire legal career besmirched by those comments on the

floor of the U.S. Senate?

Chairman LEAHY. Both of us agree. Go ahead with your answer.

Representative HULSHOF. If, Senator, you will also agree that

during the confirmation process of Judge Ronnie White that reasonable minds could agree or disagree as to his fitness to be elevated to the bench. I offer no opinion to that, but John Ashcroft,

who you all are scrutinizing, just as his record is appropriately before you and the American people as to whether he is fit to be the

Attorney General of these United States, he took that same measure seriously, his role then of advise and consent, as he scrutinized

the record of another jurist from his homestate who had raised the

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concerns of some in law enforcement as to his fitness for the bench,

and I think there was reasonable disagreement there as well.

Thank you.

Chairman LEAHY. With that, we will go to the senior Senator

from Pennsylvania.

Senator SPECTER. Thank you.

Congressman Hulshof, Senator Durbin, I think you have both

made very reasonable arguments, and the question which comes to

my mind is what impact does all of this have on the qualification

of Senator Ashcroft to serve as Attorney General.

I think it is very important to focus on the testimony which

Judge White gave, and the centerpiece was the opportunity for him

to clear the record and to clear his name on what he considered to

have been an improper handling of this matter where his record

was not accurately stated. I think he had that opportunity today,

but he did not say John Ashcroft should not be confirmed as Attorney General, and he did not say or question Senator Ashcroft’s motivations as being political.

That accusation has been made on this side of the table, but as

to what the witness said, he did not make that point, and I pressed

him on it, with great respect for his record, and I do believe that

the Senate ought to change procedures. We may handle confirmations which are successful without going into great detail by Senators personally, although staff and FBI and Bar Association and

Justice Department does it, so that he had his chance to say his

side of it.

But the question—and you have already answered this in a wide

variety of ways—as to the good faith of John Ashcroft in the judgment which he made, do you have any doubt—this is repetitious,

but one more time—that there was an ample basis for the goodfaith judgment of Senator Bond and Senator Ashcroft in coming to

the conclusions which they did as to Judge White’s confirmation?

Representative HULSHOF. I appreciate the question. There is no

question in my mind, knowing John as I do from his many years

as a public servant in Missouri, elected twice as Attorney General,

twice as Governor, once as U.S. Senator, that he is a man of high

integrity and character, and you probably know that as well or better than I having worked alongside your former colleague. So, as

he has answered many questions over his reasons for opposing the

nomination of Judge White to the Federal bench—

Senator SPECTER. Without taking too much more time—

Representative HULSHOF.—I think the fact that there are now individuals trying to target him with slurs, I think, is intolerable.

Senator SPECTER. Well, this has been the most heated confirmation process that I have seen. I am now in my twenty-first year

serving on this Committee, and the confirmation process as to

Judge Bork was no picnic, and the confirmation as to Justice

Thomas was no picnic, and the confirmation process as to Chief

Justice Rehnquist was pretty heated. We have had a great many

controversial proceedings, but the kind of charges which have come

from this side of the table on John Ashcroft being political— Senator HATCH. Please don’t point at me.

Senator SPECTER.—As to Judge White, it has to be emphasized

it didn’t come from Judge White. It didn’t come from the witness.

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There have been threats of filibuster, and if John Ashcroft is as

bad as the witnesses on this side of the table have characterized

him, as bad as the Senators have characterized him, if he is that

bad, they know how to stop him, but it really isn’t all that bad because, when you strip down the issue we have been on for hours

now as to Judge White, Judge White should have been treated differently by the Senate. There may have been some excessive statements made, but when you boil down Judge White’s testimony, he

does not say John Ashcroft should not be confirmed, and he does

not say that John Ashcroft acted out of a political motive or out of

a biased motive.

My red light just went on. Thank you.

Chairman LEAHY. If the Senator wants to finish his question, feel

free.

Senator SPECTER. Thank you.

Chairman LEAHY. Well, we will go to Senator Kyl. I am not hearing an answer. I simply will go ahead. Senator Kyl?

Senator KYL. Thank you, Mr. Chairman.

I would like to submit to the record a series of endorsements by

various law enforcement organizations for Senator Ashcroft’s confirmation for the record.

Second, I want to commend Sheriff Jones for being here under

these circumstances, and I look forward to reading your testimony,

sir. In particular, I hope that my colleagues read that part of the

testimony which makes it clear that it was you who asked Senator

Ashcroft to oppose the nomination, not the other way around, and

it was you who initiated the petition drive of law enforcement officials in opposition or at least in semi-opposition to Ronnie White’s

nomination to the Federal district bench.

Representative Watts, as always, you are willing to sacrifice your

time for others for what you believe is right. I thought your testimony was powerful. I have got to get that video for my grandkids.

Representative Hulshof, I appreciate your fine legal analysis. Because so much of this hearing did revolve around this particular

case, I think your expertise has been very useful to the Committee.

The bottom line here is that this was a very skilled group of lawyers who were hired to defend a case that frankly was indefensible,

and I will also submit for the record the actual finding of the judge

in the findings of fact and conclusions of law that the team that

you characterized as the ‘‘Dream Team,’’ to quote the court, was

highly skilled and well prepared for the case.

It was not a matter of inadequacy of counsel. It was a matter of

a case that frankly couldn’t be defended. Clarence Darrow could

not have gotten this guy off.

If we are going to hold otherwise, we are going to put ourselves

in this Catch 22. Either the jury acquits or it is error because the

defense counsel couldn’t find a way for the jury to acquit. That

would mean no one ever gets convicted in a case like this.

But I am troubled by two other things. Not only has there been

some focus on the sanity defense here, but as you have pointed out,

it is not just a matter of the finding here, but also whether or not

the alleged errors of defense counsel and inadequacy of counsel had

any effect on the jury, and, of course, the majority opinion in the

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case said whatever the situation with regard to defense counsel, it

had no effect on the jury. White disagreed with that.

But there were two other things pointed out. One of them was

the statement that was read earlier that while Mr. Johnson—this

is in the dissent of Judge White. While Mr. Johnson may not, as

the jury found, have met the legal definition of ‘‘sanity,’’ whatever

drove him to go from law-abiding citizen to multiple killer was certainly something akin to madness.

Now, there is a legal standard for insanity, and a judge is required to apply the law. This is a case where apparently Judge

White was willing to fly by the seat of his pants, not applying the

law because it just didn’t seem right to him.

But the other thing that hasn’t been brought up is something

else from his dissent, and let me quote from it, at least in part,

after the whole business about adequacy of defense counsel, he

says, ‘‘Even more troubling to me is an issue that the principal

opinion doesn’t address. It is the issue of mitigating factors,’’ and

the conclusion of Judge White is that because Mr. Johnson had not

committed crimes previously, the jury might have been able to find

that this four-time killer could warrant a sentence of life rather

than death.

Now, we heard the testimony of Ms. Collene Campbell who said

that a judge with a big heart gave a criminal one more chance, and

he used it to kill her son. If you are one judge out of seven on the

Missouri Supreme Court, you can make an error like Judge White

did and it does not have a negative impact on society, but he wanted to give Jimmy Johnson one more chance, and that error could

have had grievous consequences.

My belief is that he was wrong on the law, and that in effect he

failed the law exam here sufficiently to justify us to not reward

him with a lifetime appointment to the Federal district court.

There were other cases as well, but I just want to make it crystal

clear that however well-intentioned and however decent Judge

White is—and he clearly is from his testimony here today—the

Senate has no obligation to elevate him to a lifetime appointment

to the district court given the fact that he made the kind of errors

that he did and that the court itself concluded that he did.

So I think this vindicates the judgment not only of the Senate,

but also of Senator Ashcroft in opposing him.

Incidentally, Mr. Chairman, just one final point, there has been

an allegation by some on our side that Senator Ashcroft distorted

the record of Ronnie White. Of course, every Senator had full opportunity to clarify the record in the debate in the Senate. John

Ashcroft was only one of 100, and there was full opportunity for debate and clarification if anybody had felt that necessary.

Thank you.

Chairman LEAHY. The senior Senator from Ohio.

Senator DEWINE. I have no questions, Mr. Chairman. Thank you.

Chairman LEAHY. I can’t tell you how much the chairman thanks

the senior Senator from Ohio.

The Senator from Alabama.

Senator SESSIONS. Thank you, Mr. Chairman. Not so lucky with

me.

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Congressman Watts, thank you for coming. Thank you for all you

do to advance good and healthy ideas in America.

You just did a great job in Alabama, recently speaking, to a large

group of young people, a fellowship of Christian athletes, and it

was a special time. They were really inspired and motivated by

what you do. It may be that those kind of things will last longer

than any laws that we pass around here.

Congressman Hulshof, I really appreciate your sharing with us

here, and I tend to agree with John Kyl, the problem the defense

had was they had no defense. The guy was caught flat-footed and

gave a detailed confession. So it strikes me that the defense was

trying to do a home run. It is fourth and 10 on your own 30, and

you have just got to throw it up there, and a lot of times, it gets

intercepted. Is that an unfair characterization of it?

Representative HULSHOF. I think that is an accurate depiction.

I think law enforcement in this case, especially those that did the

investigation, deserve tremendous credit. The Court, the judge who

presided over the trial, did her job. I think the litigants battled furiously for their respective sides. The jury did their job, and then

the case went on to appeal and then we have had the decision that

we have been discussing.

Senator SESSIONS. Now, with regard to judges in general, as a

prosecutor, within the law enforcement and prosecutory community, you know the judges that consistently fail to follow the law,

fail to give the prosecutor his fair due in court, and that is pretty

well known around, isn’t it?

Representative HULSHOF. Yes, sir.

Senator SESSIONS. Well, you know, Attorneys General like John

Ashcroft and a prosecutor and former Attorney General like I have

been feel an obligation and a duty when we put somebody on a lifetime Federal bench. It is our responsibility to make sure that we

maybe give a particular assurance that those people are going to

give both sides of the case a fair shake. Would you think that is

probably something that was in the former Attorney General John

Ashcroft’s mind when he dealt with this case?

Representative HULSHOF. I do, Senator Sessions, as well as was

pointed out in the statement that I read from Sheriff Jones, the extraordinary, for lack of a better term, effort by some law enforcement groups who saw this dissent and perhaps with some other

cases who raised this red flag to Senators Ashcroft and Bond.

Senator SESSIONS. Sheriff Jones, we thank you for being here. I

know most of the sheriffs in my State. Certainly, I knew the ones

in my district when I was United States Attorney, and the chiefs

of police, also. I respect them. I know they are good and decent people, and if they have serious concerns about a nominee, I am going

to listen to it. John Ashcroft voted for every single African-American nominee presented by President Clinton, 26 out of 27 that

came to a floor vote, and he opposed this one from his own district

where he had a particular responsibility, it seems to me, and he

had a serious objection among the law enforcement community.

The Fraternal Order of Police and others have just issued an endorsement for Senator Ashcroft, and I am going to offer that into

the record.

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The Fraternal Order of Police have issued a specific statement

supporting John Ashcroft for Attorney General, and they represent

293,000 members nationwide. Is that a premier law enforcement

agency, Congressman Hulshof?

Representative HULSHOF. It is, Senator Sessions.

Senator SESSIONS. And as have the Sheriffs Association.

The National Latino Peace Officers Association said, ‘‘It is with

sincere pleasure that I write on behalf of the men and women of

the National Latino Police Officers Association in support of Senator Ashcroft’s appointment to Attorney General,’’ and the letter

goes on.

The Association of Former State Attorneys General have written,

and here is a long list of former Attorneys General around the

country that have written in support of John Ashcroft for Attorney

General, and I would offer those into the record.

Mr. Chairman, thank you. My time has expired.

Chairman LEAHY. Do you have something further to add?

Senator SESSIONS. I will stay within my time.

Chairman LEAHY. You would be one of the very few on the other

side of the aisle, but I appreciate it.

Senator SESSIONS. I would just offer that and say there are other

letters from significant organizations that should be submitted.

Chairman LEAHY. We will keep the record open, of course, under

our normal practice for Senators from either side of the aisle to

submit letters or others.

Does the Senator from Kansas wish to ask questions?

Senator BROWNBACK. Yes, I would, if I could.

Thank you very much for coming in, Kenny. I appreciate that.

J.C., it is always great to see you. We came in together in the

House of Representatives, and you have done very well from your

football days on forward. Oklahoma is back in football like when

you were quarterbacking.

Briefly, if I could, Congressman Hulshof, one of the central issues

here has been Judge White and his record, not just the one case,

but his record of what it was toward criminal—whether he would

be tough on crime or he was going to be soft on crime. I wanted

to put into the record—and if you had a comment—the number of

police organizations that were opposed to his appointment to the

Federal bench based upon that pattern of softness, and particularly

like the Missouri Federation of Police Chiefs who stated in this letter, September 2nd, 1999, ‘‘We want to go on record with your office as being opposed to his nomination and hope you will vote

against him for the Federal bench, a lifetime appointment to the

Federal bench.’’

I would also point out the National Sheriffs Association saying,

‘‘I am writing to ask you to join the National Sheriffs Association

in opposing the nomination of Mr. Ronnie White to the Federal judiciary, and I strongly urge the U.S. Senate to defeat his appointment.’’

Then Sheriff Jones’ letter, whom I would have loved to have

heard your testimony as well in this case, opposed his appointment

to the Federal bench.

The Missouri Sheriffs Association said, ‘‘We strongly consider his

dissenting opinion in the Missouri v. Johnson case.’’

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Senator BROWNBACK. Is that the pattern you spoke of, of why

these organizations were all opposed to his taking the Federal

bench?

Representative HULSHOF. Again, without my own personal comments about it, I think Senator Ashcroft has indicated both on the

floor when he was your former colleague, discussing various cases,

I think many of those that we talked about, the Johnson case.

There was a Kinder case. There were some others, again, and I

think he also had the opportunity to be questioned about additional

criminal cases. I think even since Judge White’s nomination was

defeated, there were additional cases that perhaps were brought

forth in this process by your former colleague, an Irvin case and

some others.

So, again, without offering my own opinion specifically about

Judge White, that is not the purpose of me being here today. I

think Senator Specter mentioned earlier that the point of these inquiries, of course, and the very difficult job that you have is the fitness for office for the Office of Attorney General for John Ashcroft,

and I think that especially as a fellow Missourian, these charges

of racially motivated reasons for defeating Judge White’s nomination, really, there is no information or evidence to that.

Clearly, I would just urge, if I could, just as John Ashcroft I believe is a man of highest moral integrity and character, I think he

would make an exceptionally qualified U.S. Attorney General.

Senator BROWNBACK. Congressman Watts, you have been here,

and I thank you for participating. I don’t know if you had any follow-up comments that you would like to make.

I would direct your attention particularly. There have been a

number of innuendoes and allegations toward John Ashcroft’s sensitivities, racial sensitivities, and if you know John and if you have

any comments regarding any of those comments that others have

made.

Representative WATTS. Senator, I shared my testimony or in my

statement that I have dealt with John for the last 6 years. I have

campaigned with him in his homestate. I have worked with him on

legislation concerning poor communities, underserved communities.

I have always found John Ashcroft to have nothing but the utmost

respect and dignity for one’s skin color.

I hear John say yesterday in some of his testimony that his faith

requires him to respect one’s skin color, and I think that is the way

it should be. So, in my dealings with John, I have had nothing but

the utmost respect for him when it comes to his dealings with people of different skin color.

Senator BROWNBACK. Thank you very much. Thank you both for

joining us, too.

Senator SESSIONS. Could I bother to offer one more letter?

Chairman LEAHY. The Senator from Alabama can interrupt any

time he would like. You go right ahead.

Senator SESSIONS. You are very kind. You have been very patient.

This is from the Mercer County Prosecuting Attorney’s Office,

and I note some have objected to John Ashcroft’s use of the word ‘‘anti-law enforcement,’’ but this is the letter he had back at that

time, ‘‘Judge White’s record is unmistakably anti-law enforcement,

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and we believe his nomination should be defeated. His rulings and

dissenting opinions on capital cases and on Fourth Amendment

issues should be disqualifying factors when considering his nomination. John White has evidenced a clear bias against the death penalty from his seat on the Missouri Supreme Court,’’ and he goes on

for another page and a half. But I would just offer that as a basis

for Senator Ashcroft to have said what he said.

Chairman LEAHY. I am sure that will be part of the debate for

the next several weeks, but I would also note, as we have put in

the record, the endorsements from a number of significant police

organizations and individual police officers in Missouri for the nomination of Judge White to be a Federal district judge, a number

who endorsed him for that position, a number who said they considered him far more concerned with victims than with criminals.

With that, we will stand— Senator HATCH. If I could just make one last comment. Which,

of course, makes my point that there is reason to be on either side

of this issue. It is a little offensive to have some accusing Senator

Ashcroft of insensitivity I think this particular panel has been very

important in helping us to understand that.

I think we should be a little more careful before we start finding

fault with colleagues. I don’t find fault with those who voted for

Judge White. I don’t find fault with those who voted against Judge

White.

Chairman LEAHY. Ultimately, of course, the question will come

down to how 100 United States Senators will vote for John

Ashcroft.

Senator HATCH. That is right.

Chairman LEAHY. While that vote will not be held today, eventually it will be held, and that will be the question.

I do thank our two colleagues from the House, both valued members of that body. They have been most patient.

I will announce the program when we come back at 2:30. We will

go back to question the panel that was interrupted to allow the

Members of the House to testify.

[Whereupon, at 1:26 p.m., the Committee recessed for lunch, to

reconvene at 2:30 p.m., this same day, Thursday, January 18,

2001.]

AFTERNOON SESSION [2:43 p.m.]

Chairman LEAHY. Thank you all, and as sometimes happens in

these events, we have to move things around, and I apologize for

that.

I am going to have the questioning start by one of the two most

senior members of the panel, a former chairman, Senator Kennedy,

and then go in normal rotation to Senator Hatch, and then back

to me. I don’t think it is the altitude, unless it is the altitude of

the office, but I seem to have developed a bit of a nosebleed, so I

am going to step out.

Senator HATCH. If I can, Mr. Chairman, when you come to me,

I am going to defer to Senator Specter, who needs to be at another

confirmation.

Chairman LEAHY. Would you rather go first?

Senator SPECTER. That is all right. I will follow Senator Kennedy.

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Chairman LEAHY. Let’s turn to Senator Kennedy.

Senator KENNEDY. Thank you. Thank you very much, and I want

to thank the panel very much for the very, very helpful commentary. And I know the 5-minute rule made it difficult, but the

information you provided to the Committee is very, very valuable.

I would like to direct my first question to Harriet Woods. On

Tuesday and Wednesday, Senator Ashcroft testified that the State

of Missouri was not responsible for the segregation of St. Louis

schools and that he was simply fulfilling his duty to defend the

State when he so strongly opposed the city’s voluntary desegregation plan. Is that an accurate description of what really happened?

Ms. WOODS. It is not, Senator, and I think it is one of the most

troubling aspects to me of this nomination, because as you well

know and pointed out, there is no more serious challenge to this

country than reaching a resolution on some of these lingering

issues related to race. And the fact that he would say that he was

just appearing as Attorney General but protecting the State from

liability, because there was no liability. The history of Missouri, at

one time it was a crime to educate black children. The ministers

had to take them out on boats in the river. There was a constitutional amendment requiring segregation of schools.

I served in the State Senate at a time—and, frankly, I think it

lingers to this day—when there was a resistance to providing more

funds to the urban schools. So for these families to be—to find no

resolution to a good education for their children at either the State

or local level, neither one of them willing to really assume the responsibility for remedying what was a long, clear injustice to African-American children was what brought on the Federal suit. And

to have the Attorney General of the State not even—seemingly who

was born and raised in Missouri, who told us, well, yes, he knew

about this 1954 decision and a black child came into his class, that

he was not conscious that there was a State liability really is worrisome because that could be transferred to the Federal level of no

liability, no responsibility. And you can tell I am really appalled.

Senator KENNEDY. Well, I think in fairness to the Senator, he

had indicated that the State was not involved. We have had contrary testimony to that in the holdings of the court. This went on

for some 8 years as he was Attorney General and 8 years as Governor. Am I correct that this issue was not settled?

Ms. WOODS. It not only went on, but as you know—and I certainly don’t want to take up all the time, and I know you are going

to have other testimony from other witnesses. But even to the extent of impeding or trying to block voluntary—efforts at voluntary

resolution, which you would think he would be happy about, in

terms of if the local districts—if the State could assist a voluntary

remedy, and the courts themselves chastised the Attorney General

for foot-dragging and for getting in the way, I mean, it seems to

me this is more than just routine representation of the State.

Senator KENNEDY. One other issue that I raised with Senator

Ashcroft on the first day: he defended his veto of two voter registration bills by citing support for his action from a few Democrats

in the city of St. Louis. That is the situation where there was one

piece of legislation that provided voting registrars for St. Louis,

and he vetoed that because he said that that was only targeted on

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one city. And then the legislature, as I understand it, passed legislation to encompass the whole State, and he vetoed that as well.

The result has been a very dramatic falling off of black registered

voters during that period of time when other groups, like the

League of Women Voters, were out registering in the county itself

surrounding the city. I believe there were 1,500 active registrars

out in the area just surrounding the city, and for special reasons

that you know, this is really a function of the Governor. The Governor has this responsibility, as I understand it, under Missouri

law.

Could you make any comment on what was happening at that

time and what kind of value do you give to— Ms. WOODS. Well, I sometimes where the hat as a member of the

League of Women Voters, but what you are pointing out—and I

was interested in your inquiry because it is quite true that in the

suburban areas, the more affluent citizens, the Board of Election

Commissioners did deputize members of the League of Women Voters and other groups to make it easier to register. This was not

true in the city of St. Louis where the majority of African-Americans live.

Now, the point, and you really brought this out, but what it

seemed to me needed to be brought out, Senator Ashcroft said,

well, he checked with the local Board of Election Commissioners

and the local white Democratic elected officials said we aren’t interested in doing this. Everyone from the Missouri, from St. Louis, understands that by tradition there is the white south side in local

politics and the black north side. And I can assure you that by tradition, by simple practical politics, the white Democratic politicians

on the south side aren’t going—are no more eager than Republicans to get a big turnout because of its impact on local elections

from the African-Americans on the north side. So to say they

agreed is a little like saying that President Eisenhower called up

the politicians in Arkansas and said, Hey, do you want us to come

in and do something about getting these kids into the schools? And

when they say no, say, OK, we won’t do it.

That was not his role. His role should have been looking out to

make it easier for people of whatever background to be able to exercise their vote and not to reach agreements with politicians about

keeping them from doing so. There is no reason why they couldn’t

have been deputizing in the city of St. Louis.

Senator KENNEDY. As a result of that failure, is it your understanding that there were hundreds of thousands of eligible black

voters that were effectively denied the—

Ms. WOODS. Well, I would say there certainly were—

Senator KENNEDY.—Opportunity for registering and participating

in the votes?

Ms. WOODS. There was certainly a discouragement factor for

thousands of African-Americans voters who had to go to a much

greater length to do what could be done easily in more affluent

areas.

Senator KENNEDY. If I could, I would like to ask Gloria Feldt

about Senator Ashcroft’s extreme position against contraception.

He supported the human life amendment which prohibited the use

of common forms of contraception, tried to stop the Federal EmVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00349 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
336

ployees Health Benefits Program from covering the cost of contraceptives approved by FDA, including commonly used birth control

pills and IUDs. He has used the power of high office to block family

planning services.

Let me ask you, would you tell the Committee how much impact,

if any, the Attorney General’s office could have on the right to access contraceptives? What is your impression given the assurance

that you received yesterday and the power of the Attorney General,

to what lies ahead in terms of the potential danger of actions that

would limit contraceptives to women?

Ms. FELDT. Thank you, Senator. Just to clarify the basis of this

point, the medical, scientific definition of pregnancy is implantation. The version of the so-called human life amendment that Senator Ashcroft has supported throughout his entire career is a version which would outlaw all abortion and it would—and it defines ‘‘life’’ meaning personhood, giving the legal status of personhood,

upon fertilization.

What that means is that most of the methods of birth control

that we are accustomed to having available to us, such as many

kinds of birth control pills, the IUD, injectables and so forth, are

thought of by Senator Ashcroft as abortifacients, and that is confirmed in the Dear Colleague letter that he signed to Members of

the Senate in opposition to Federal employees’ insurance coverage

of contraception in their plans.

As Attorney General, I think that his interpretation of when

personhood—I mean, the legal status of personhood begins would

be a very major factor in interpreting and crafting and advising.

But there are other more sort of not as obvious areas where his interpretation could have an impact.

For example, he could be asked by the Department of Health and

Human Services to give some guidance with respect to family planning programs, Title 10 of the Public Health Services Act, which

provides a wide array of—in fact, all medically approved birth control methods to low-income women who are primarily uninsured

women as well. So it is not inconceivable that the Attorney General

could be asked to define what is a contraceptive under this program, and in so doing render most of the commonly used and, by

the way, most effective means of contraception no longer usable

within the family planning program.

Similarly, emergency contraception, which can be taken within

72 hours after intercourse and can prevent a pregnancy from occurring, could be given that same approach. And emergency contraception has been found by researchers to—if all women of reproductive

age had access to it, emergency contraception could reduce the unintended pregnancy rates and the abortion rate by one-half.

So, ironically, the outcome could be actually an increase ultimately in the rate of abortion because of the lack of birth control

access.

Ms. GREENBERGER. Senator Kennedy, I wonder if I just might

add—

Senator KENNEDY. I think my time is up, Mr. Chairman.

Chairman LEAHY. We will go 10 minutes with the Senator from

Pennsylvania and then 5 minutes to everybody else because the

Senator from Massachusetts had 10 minutes.

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Senator SPECTER. Thank you, Senator Hatch, for yielding to me.

I have other commitments. This has been obviously a tough day,

and I appreciate a chance to take this round now.

I can understand the concern which has been expressed about a

woman’s right to choose, and I agree with what Ms. Michelman has

said that we wouldn’t tolerate dismantling Brown v. Board of Education, and similarly, we can’t tolerate dismantling Roe v. Wade. And if I thought that Senator Ashcroft would do that, I wouldn’t

support it.

The issue about what will happen with judges and marshals and

U.S. attorneys, at least the practice in the 12 years of President

Reagan and President Bush, has been that Senators have a significant amount to say about who those individuals will be. And I can

tell you with certainty that there will be some passionate activism,

to use your term, Ms. Feldt, on that subject. And the Republicans

who have been appointed in Pennsylvania have been noted nationally for balance and moderation, if I may use—they use that word.

When it is said that there is an expectation that the President

would appoint a conservative, that really is an understatement because of the way the political process works and the way the primary process works. I spent the better part of a year seeking the

Republican nomination for 1996, fully aware of the virtual impossibility of it, but believing that there ought to be a centrist view

within the party. And being the only pro-choice Republican in a

large field with about 50 percent of the Republicans being prochoice, it seemed to me that there was an opportunity.

I was the only candidate to favor retaining the Department of

Education. At least we won that one, although I didn’t win it.

There still is a Department of Education.

But I point this out because of the concerns I have about having

some balance within the Republican Party. We sought to change

the platform, to take out the litmus test and take out the provision

to overturn Roe v. Wade. And President-elect Bush did make commitments on both of those lines, but they weren’t as binding as a

platform change, in my opinion. And I tried to do that, not successfully.

And we do have very firm commitments on the record from Senator Ashcroft that he is not going to move to overturn Roe v. Wade

by constitutional amendment, and the fact is he couldn’t if he tried.

We have had a Republican Congress for 6 years, now going into 8

years, and nobody has even made an effort, at least not a serious

effort. And there is a firm commitment that he is not going to use

a litmus test.

And with the 50–50 split, I think that is an enforceable commitment, both as to the President-elect and as to Senator Ashcroft, if

he is, in fact, confirmed.

So my question goes to the point about trying to get centrist Republicans to adopt the Feldt doctrine of passionate activism, and

maybe even making a heretical suggestion that some Democrats

might want to become Republicans, to provide some of the Javits

and Heinz and Scott and Arlen Specter point of view. There are

some places where people are assigned to both parties so that there

is a voice. And you have to give credit to the activists who have

dominated the party, the Republican Party. They have done the

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work. They have been the passionate activists. And we do have a

political system, and there is a way to make a modification of it.

So when we come to a hearing of this sort—and I haven’t hidden

it. I wrote a New York Times article saying that—perhaps a little

presumptuously, saying that the President-elect ought to appoint

centrists. But that is the kind of balance we need. But if there is

more of a face in the primary process, where a very small number

control the outcome and nominate the President, there would be a

change.

Ms. Michelman, you are a practical—you are a pragmatist. I

know that because I see you working out in the gym with some regularity. We go to the same health club. How about getting some

people who have your passionate activism to become Republicans

to influence the political process so that you have a voice in who

the Cabinet officers, even Attorney General?

Ms. MICHELMAN. I couldn’t agree with you more, Senator, that

it is so important to recognize that freedom to choose is not a matter of partisan politics. It is a fundamental right of women, and it

is a fundamental right that guarantees women equality.

The reason that I mentioned Brown v. Board of Education in my

comments earlier on was because there are signature decisions

along the way as those of us in society who are not guaranteed

freedoms and equality by the Constitution, we have had to struggle

for those rights. And Brown v. Board was an essential milestone

along the way to full emancipation, full protection, full equality for

African-Americans. So, too, Roe v. Wade, as Justice Blackmun I

thought so eloquently put it, was necessary as women continued

their journey toward full equality and full emancipation. So it is an

issue— Senator SPECTER. Ms. Michelman, I think— Ms. MICHELMAN.—That rises above and transcends.

The problem we have here is that I agree with you, we need to

have more Republicans—and I have to say I have tremendous admiration for the fact that you did run, and I wish you had been

the nominee on the other side. But that is a long-term effort that

we have to engage in, both short term and long term, that—

Senator SPECTER. Ms. Michelman, let me interrupt because the

time is fleeting.

Ms. MICHELMAN. Sorry.

Senator SPECTER. You said the other side. How about joining my

side?

Ms. MICHELMAN. Joining your side?

Senator SPECTER. Yes. How about joining the Republican side—

Senator HATCH. Don’t be so shocked here.

[Laughter.]

Senator HATCH. I have never seen such a shocked look on your

face.

Ms. MICHELMAN. Well, no, actually, I—

Senator SPECTER. You don’t have to convince Senator Kennedy.

Ms. MICHELMAN. I am an Independent myself, but I think with

all—you know, all kidding aside here, though— Senator SPECTER. I am not kidding.

Ms. MICHELMAN. No, but—

[Laughter.]

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Ms. MICHELMAN. The issue before us is whether we are going to

have an Attorney General that will respect, defend, and protect

women’s established constitutional rights. While we work to bring

more pro-choice Republicans into political positions, we have got to

start now making sure that we don’t have an Attorney General

who is a pathway to overturning Roe v. Wade. And— Senator SPECTER. Ms. Michelman, I have to— Ms. MICHELMAN. The human life amendment is a little bit of a

straw man here— Senator SPECTER. I have to interrupt you— Ms. MICHELMAN.—With all due respect— Senator SPECTER.—Because time is fleeting, and I am not doing

very well with you. I want to turn to Ms. Feldt.

How about joining up, Ms. Feldt? How about being passionate to

try to influence the other party, make it your party, and have a

place at the table?

Ms. FELDT. Senator, as you may know, Planned Parenthood has

a very large, very active Republicans for Choice group that is forming chapters faster than you can imagine all over the country and

has been active actually for some years.

I just want to tell you a little bit about my own personal experience. I ran the affiliate in Arizona for 18 years. That affiliate was

started by Peggy Goldwater, and Barry Goldwater, Mr. Conservative himself, is the person who taught me that a true conservative

doesn’t want the government telling people what to do about their

own personal, private respective choices.

Senator SPECTER. Barry Goldwater was the preeminent conservative who said keep the government off your backs— Ms. FELDT. That is right.

Senator SPECTER.—Out of your pocketbooks, and out of your bedrooms.

Ms. FELDT. Absolutely.

Senator SPECTER. Well, we need to get those Republicans in

Planned Parenthood more active.

Ms. FELDT. We are working on that, Senator. I guarantee you.

Senator SPECTER. Marcia Greenberger, how about it? Will you

join up? I am recruiting.

Ms. GREENBERGER. Well, I have to say, as I have been sitting

and listening to this conversation—I, of course, come from an organization that is non-partisan entirely, and I think the point of all

of this is whether Republican or Democrat for this Senate, for those

who believe in Roe v. Wade, Senator Specter, as you do, the issue

isn’t what party you are. The issue is: What is your commitment

to the principle of Roe v. Wade and other constitutional principles

at stake here, including 14th Amendment, equal protection, so important for women and minorities?

And I do want to say I respect fully that you said if you were

convinced that Senator Ashcroft would overturn Roe v. Wade you

wouldn’t support him. And you cited a constitutional amendment

and the litmus test points, and I wanted to go to those points precisely.

He can—and I think our concern is that he will—effectively overturn Roe v. Wade not through a constitutional amendment, which

an Attorney General, we agree, would not have a role in pursuing,

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but by defining Roe v. Wade, even if he says he is not trying to

overturn it, in such a loose fashion that it is completely eviscerated.

Now, I want to say that when he came as the Missouri Attorney

General to this U.S. Senate in Washington in 1981 and testified in

favor of a human life bill—bill, statute, not constitutional amendment—which Gloria Feldt described and how extreme it was, he

said among the points, the legal points he was making, that it was

constitutional under Roe v. Wade. When he has committed not to

try to turn over Roe v. Wade—and I want to question the commitment he even gave on that because he said he didn’t think it was

an agenda, he didn’t really commit even on that point. What did

he mean by Roe v. Wade if he could come and testify that Roe v.

Wade was consistent with his human life bill that he was supporting?

It is the antithesis of Roe v. Wade. So for him to say that he

won’t seek as an activist agenda matter to overturn Roe v. Wade, but what he means by that is that he can still push for and find

constitutional under Roe v. Wade as Attorney General his human

life bill, then I cannot help but say the American women in this

country and all of us who care about the right to choose were given

no guarantee whatsoever but what we heard.

Senator SPECTER. Well, I appreciate your arguments, but it

comes back to a place at the table and a basis in the party, and

I would urge you to consider what I have said so that you have a

place at the big table.

Thank you very much. Thank you, Senator Hatch.

Chairman LEAHY. Mr. Susman, I can imagine that the nurses in

the case in 1983 that you mentioned earlier were very upset to be

threatened to go to jail after then-Attorney General Ashcroft issued

his opinion to stop nurses from providing access to contraceptives

and family planning services. My wife is a registered nurse. I can

imagine what her reaction would be if somebody told her she could

go to jail if she told a patient anything about contraceptives or family planning services. It sounds like something out of the 19th century.

Now, how significant was this case and the defeat of what thenAttorney General Ashcroft tried to do to the nurses in Missouri?

Mr. SUSMAN. I think you can tell the significance of the case by

merely going to Exhibit A of the Supreme Court’s decision which

lists the amicus parties that were involved in this case who saw

fit to have their voices from all around the country heard by the

Missouri Supreme Court. But you have to remember that they not

only were going to charge the nurses with the crimes of practicing

medicine without a license; the State Board of Registration for the

Healing Arts also told the physicians who were writing these

standing orders that they would be charged with the crime of aiding and abetting the nurses by actually writing these orders.

This is a practice that was in effect in 40 of the 50 States at the

time. It was not uncommon for advanced nurse practitioners to do

all of these services that I listed. This was routine. This was the

way every county health department—

Chairman LEAHY. So let me make sure I understand this. Under

then-Attorney General Ashcroft’s position, the doctor wrote an

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order for a contraceptive, the nurse practitioner, who was required

to have a high degree of schooling and an advanced degree, then

were to pass out the contraceptive following the doctor’s orders. If

so, they could both go to jail?

Mr. SUSMAN. Oh, absolutely. Practicing medicine without a license.

Chairman LEAHY. Does this seem kind of 19th century— Mr. SUSMAN. It caused panic because many of the doctors in

these family planning clinics resigned, just from the threat, resigned their practices.

Chairman LEAHY. So the concern that you were expressing this

morning is not just the question of Senator Ashcroft’s position on

a woman’s right to choose, but on a woman’s right to choose a

method of contraception.

Mr. SUSMAN. Absolutely. That is all the case dealt with, was contraception. I mean, family planning clinics—and, again, these were

in the federally designed low-income counties, counties in which

you did not have a single physician who would give prenatal or

childbirth services to women because of the low rate of pay established by the Missouri Medicaid program. Not a single physician in

these counties offered services to indigent women. And this was the

only outlet for indigent women to be able to control their reproductive destinies that were being shut down.

Chairman LEAHY. Mr. Hunter, I noticed in your testimony you

mentioned the Mound City Bar Association of St. Louis, one of the

oldest African-American bar associations in the country—incidentally, one of the most respected ones—commended John Ashcroft in

1991 for appointing an African-American judge. Is that correct?

Mr. HUNTER. That is correct.

Chairman LEAHY. We should note, though, for the record that

the Mound City Bar Association, however, has come out against

John Ashcroft to be Attorney General, and they have stated very

clearly that they oppose his nomination based on his treatment of

Judge Ronnie White. I will enter a letter into the record, that says,

among other things, ‘‘the attack on Judge White is an attack on all

persons who possess similar values; the MCBA has long stood for

the rights of the accused to get a trial free from bias; Judge White’s

position is similar to us; Mr. Ashcroft has spoiled an opportunity

for the Federal bench to become a more diverse institution; consequently, while we have been silent on this nomination up to this

point because of the impression left by previous statements of the

association, we must make it clear that this is not a nomination

that we can support; simply put, the chickens come home to roost.’’

Ms. Woods, Senator Ashcroft, I feel, deserves credit for selecting

Mr. Hunter as his first Secretary of Labor when he served as Governor of Missouri from 1985 to 1993, and I understand, Mr.

Hunter, you have set a standard that other Governors could look

at for similar positions.

But Senator Ashcroft in his opening statement stated during the

Governorship he took special care to expand racial and gender diversity in Missouri’s courts. I am going to ask a little bit about

that. As his Lieutenant Governor, I am sure you are familiar with

his record. Tell me if this is correct: that Mr. Hunter was the only

African-American or minority to serve in then-Governor Ashcroft’s

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Cabinet, which is made up of 15 department directors, during his

first 4 years; and that the African-American leaders of Missouri

were critical of his failure to appoint more minorities.

Ms. WOODS. Well, yes, the answer is there was only one appointment, and the head of the National Association of Blacks within

Government noted in 1988 this one black member in Ashcroft’s cabinet, but that, ‘‘In most offices in Jefferson City, it is an ocean of

whiteness.’’

Chairman LEAHY. Do you know Representative Shelton?

Ms. WOODS. Oh, yes, the Representative, and he reacted to the

failure to sign the—I’m sorry.

Chairman LEAHY. Oh, go ahead.

Ms. WOODS. There are so many things I think have caused the

African-American community to feel that Senator Ashcroft could

not be counted on to give them justice, and one of them was Governor Ashcroft, then, being one of only two people who refused to

sign the One-Third of America Report which was signed by former

Presidents, Republican and Democrat, and, of course, Coretta Scott

King, which because he said that it really exaggerated the plight

of African-Americans.

Whether one differed or not with a degree, this was a chance at

a national report to bring the attention of the whole country, if you

really wanted to provide leadership, if you really were concerned,

and let me just add one other thing. He and I served on something

called the Board of Public Buildings, which handled contracts in

State government, and it was perfectly obvious that minorities and

women were not getting a full share of State business, but his response was whatever we are doing is the law. My response was we

have got to be creative, we have got to reshape these contracts so

that small contractors, as minority and women usually are, can get

them. He wouldn’t do anything, and ultimately our office just refused to sign one of the contracts until they started a minority program.

So what I am saying to you about this, and I realized you gave

me a specific question about his position, I just don’t feel he—this

was a priority for him to open up more opportunities.

Chairman LEAHY. Does anybody here disagree that his Human

Life Act, which he introduced, was patently unconstitutional on its

face, the Act that he subscribed to and urged passage of, the Act

that would basically by a statute overturn Roe v. Wade? Does anybody feel it is constitutional?

Ms. MICHELMAN. No.

Ms. FELDT. No.

Chairman LEAHY. I take it by your answers, everybody feels it

is unconstitutional. Thank you.

Senator HATCH?

Senator HATCH. Judge Robertson, I have been led to believe that

in the nurses case, Attorney General Ashcroft never questioned the

constitutionality of the statute in question. Additionally, not only

did the Office of Attorney General represent the board, it also

found an amicus brief on behalf of the Board of Nursing urging an

interpretation of the statute consistent with the position taken by

the nurses.

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Now, the Supreme Court’s opinion, as I understand it, agreed

with the position taken in the amicus brief. Am I wrong on that?

Mr. ROBERTSON. No, Senator. You are 100-percent right. When

I read the news accounts of this Sermchief case as the person who

was responsible for approving much of the litigation in the Attorney General’s office during this period of time, it didn’t read like

anything that I had been involved in.

So I went and got some research done. What I discovered was

that the Board of Healing Arts was represented by private counsel

and not the Attorney General’s office, that the doctors had enough

money to pay private counsel and not use the State lawyers. That

is first.

Second, that Mr. Susman filed the lawsuit after the Board of

Healing Arts on the advice of their counsel, indicated that they

might be in violation of the law. The Attorney General’s office

merely intervened to protect the constitutionality of the statute,

and I have the briefs filed, Senator, by the Attorney General’s office

in the Missouri Supreme Court with me today, one of them on behalf of the Board of Nursing, and I am going to quote from it if

I might, ‘‘urges the Court to find that the law under question

should be interpreted broad in scope allowing flexibility in nursing

practices.’’ That is the first brief.

The second brief filed on the merits by the Attorney General’s office indicates to the Supreme Court merely that the Attorney General’s office was intervening for the sole purpose of protecting the

constitutionality of the statute and took no position whatsoever on

the question of what the nurses could or couldn’t do. All of these

acts were consistent with the Attorney General’s responsibilities

and are inconsistent with some of the testimony that you have

heard today.

Senator HATCH. Well, Mr. Chairman, I believe Senator Kennedy

expressed concern yesterday and again today that the St. Louis

Board of Election Commissioners, that he alleged was appointed by

Senator Ashcroft, may have refused to deputize private voter registration volunteers because these voters were primarily AfricanAmerican and voted Democratic, at least that is the accusation.

I thought it would be of interest to the Committee to know that

the city board, and you correct me if I am wrong, I don’t believe

I am, the city board had a long history of refusing to deputize private voter registration deputies long before John Ashcroft appointed anyone to that board.

I know this because a lawsuit was filed against the members of

the St. Louis board appointed in 1981 alleging the same concerns

that Senator Kennedy expressed, and the Federal District Court for

the Eastern District of Missouri explicitly rejected charges of racial

animus finding that the board properly refused to deputize volunteers to prevent fraud, ensure impartiality, and administrative efficiency.

Now, these conclusions were sustained by the Eighth Circuit, as

I understand it, in an opinion by Judge McMillan, a prominent African-American jurist.

If I could, I would like to submit copies of those opinions for the

record.

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Now, Judge Robertson, do you have anything to add to that, and

would you like to comment on some of the assertions of Ms. Woods

here today? Your statement was followed by Lieutenant Governor

Woods who described a number of actions by then-Governor

Ashcroft. So I would appreciate it if you would cover those two

areas and any others you care to cover.

Mr. ROBERTSON. Thank you, Senator.

Governor Woods and I used to play tennis together when we

were in Jefferson City, and we have even been on the same side,

but it doesn’t appear that we have made that jump today.

Let me suggest that the case that Governor Woods spoke of

comes—with regard to the Lieutenant Governor’s authority comes

from a history in Missouri where there was a Governor who was

literally held hostage in the State by a lieutenant Governor—

Senator FEINGOLD. Excuse me just for a moment.

Mr. Chairman, it is very difficult to hear on this end. I just wonder, is there a way you could speak more directly into the microphone?

Senator HATCH. Maybe even a little more slowly.

Chairman LEAHY. I would also ask if there is somebody who

could double check it. Really, the sound system is leaving something to be desired.

Ms. Campbell, I think, is having difficulty. There are dead places

in the sound. Maybe we could ask one of the engineers to see if

they can boost it up.

Go ahead.

Mr. ROBERTSON. I see the red light is on.

Chairman LEAHY. No, that is all right.

Senator HATCH. No, that is fine. Some of the time has been eaten

up here.

Mr. ROBERTSON. An 1883 decision of the Missouri Supreme

Court, which was cited in the case to which Governor Woods referred, ruled that when the Governor of Missouri was out of the

State, he could still receive compensation, and I think Governor

Ashcroft’s comments with Governor Woods at the time were designed merely to say let’s try and get along, but if we don’t, I have

legal authority here from an 1883 Supreme Court decision that

makes it sure that I don’t have to tell you when I leave the State.

Absent that authority, I believe he never would have had the conversation which he reports.

Senator HATCH. Thank you.

Just one last question. I would like to ask Ms. Campbell this

question.

Some have tried to call John Ashcroft insensitive, among other

things, that are not justified by his private deportment and public

record. Ms. Campbell, I wonder if you would discuss whether you

and the people you represent feel John Ashcroft is sensitive to victims of crime and why you and your group think John Ashcroft is

the right person to be Attorney General from the perspective of

crime victims.

Ms. CAMPBELL. Well, Senator Hatch, let me tell you, particularly

this week, I would not have been here if I did not have a lot of people feeling very strong about this.

345

I am sorry that Senator Feinstein wasn’t here a while ago, but

the 12 victims organizations in the State asked me to come here

because they had followed Ashcroft’s record as to what he has been

doing.

One of the things that he did was work on the Victims’ Constitutional Amendment that Senator Feinstein was working on and was

very involved in that. Not too many people got deeply involved in

that. Senator Kyl did. That tried to address on a Federal level a

lot of the inadequacies that we have on the State level.

If we have 3 days, I could go over the things that are happening

that shouldn’t be happening to victims. Victims are probably the

only people that didn’t do anything to get where they are. It just

happens that anybody in this room could share the pain that I am

feeling right now, just like that.

Things that I endured—and when I say ‘‘I,’’ I can only speak for

myself because everybody goes through this. Both men that strangled my son and threw him out of an airplane, they were being

tried for special circumstances, the death penalty. In the State of

California, they are not entitled to bail, but guess what? They had

bail. They appointed four defense attorneys for them.

We had a deputy D.A. that, bless his heart, we were his first

case, and he was very overworked. I had to ride up the elevator

with the two men that strangled my son.

I don’t know what you can do about things like that, but that is

trying a mom right to the top because I hate to tell you the

thoughts that I had on that elevator, and we wouldn’t have been

able to have a trial any further if what I wanted to do, I would

have done.

There is a notice of appeal situation where they filed an appeal,

the men were in prison, all the family members of the murderers

were notified. Not us. We read it in the headlines of the front paper

that the men who murdered our son were out. These are the things

that John was trying to do something about in the victims’ bill of

rights saying that people are notified, that they can protect themselves.

I mean, it is just common sense saying that unless you are there,

you don’t know what it is not taking place in our country, and if

anybody says he is insensitive, I have got to tell you, I have got

a bone to pick with them because he was on the board a long time

ago.

Senator HATCH. Well, thank you very much.

Ms. CAMPBELL. At this time, I would sure like to thank my Senator from the State of California for all she has done for victims’

rights. I really do appreciate it, and that is a Republican to a Democrat, and I called and told her that I voted for her.

Chairman LEAHY. Well, you voted right. She is a good person,

and we are fortunate to have her on this Committee.

You had a request, Senator Kennedy.

Senator KENNEDY. Mr. Chairman, in response to Senator Hatch’s

comments about the registration in St. Louis, I would like to include in the record at this time what the registration was when

Governor Ashcroft became Governor and then information demonstrating the collapse in black registration in St. Louis when he

left, and then how it increased again when Governor Carnahan

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came in. I will put in those statistics, and I think they speak very

clearly for themselves.

Senator HATCH. Well, my point was the Democrats controlled the

process. I don’t know how you blame Senator Ashcroft for that.

Senator KENNEDY. Excuse me. Excuse me. They did not, not

when the Governor was the Governor. He controlled the process,

Senator, and he is the one who vetoed.

Senator HATCH. Those local boards controlled the process.

Senator KENNEDY. No. Under the Missouri constitution he had

direct responsibility.

Senator HATCH. Yeah, blame him.

Chairman LEAHY. Gentlemen, gentlemen, please. A little understanding.

Senator HATCH. I am trying to be understanding.

Chairman LEAHY. We have to understand if anything good happened, apparently if anything good happened while Senator

Ashcroft was Governor, then he takes full credit for it, and if things

weren’t done right when he was Governor, then the Governor had

nothing to do with it. You have got to have it one way or the other.

Senator KYL. Just like the Presidency, right, Mr. Chairman?

Chairman LEAHY. Just like the Presidency. You can’t have it

both ways.

Senator HATCH. That is right.

Chairman LEAHY. The Senator from California.

Senator FEINSTEIN. Thank you very much.

I want to welcome you here, Ms. Campbell, very much. I am very

sorry what happened to your son.

You should know that my leader on the Victims’ Right Constitutional Amendment is Senator Kyl. We got it out on the floor at the

last session. We came a cropper. We withdrew it. We will resubmit

it this session, and I hope you will come back.

Ms. CAMPBELL. I want to be here when you do, and I do not want

it weakened.

Senator FEINSTEIN. Thank you very much. Thank you. I appreciate that.

Kate, if I might say to you, I am really pleased that you mentioned, although it was very brief and I don’t know if people really

heard it, how important Roe really is in this whole effort of women

for equality, and I think many people in this country think women

were born with this equality and they don’t realize we couldn’t inherit property, we couldn’t get a higher education, we couldn’t own

property, we couldn’t vote, for so many years of this Nation’s life.

The ability not to have politicians interfering with our reproductive

system is really a very important concept in women being able to

stand tall and make their own decisions based on their religion,

their beliefs, their morality, their family, and that that is really

what this is all about, and that is why it is so important to those

if us who are pro-choice.

Now, having said all of this, I am one of those that was really

amazed when Senator Ashcroft said Roe has been settled, I respect

that, I will not bring a case, when he also said in response to a

question, he will maintain the task forces.

I wanted to ask the people that are really knowledgeable in this

area. With respect to the access to clinics which is known as

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FACE—everything here gets to be an acronym. I kind of don’t like

it. I like to say what it is. In that Act, there are some specific

terms. For example, Section 3(e), the term ‘‘interfere with’’ means

to restrict a person’s freedom of movement. Also in 3(e), ‘‘intimidate’’ means to place a person in reasonable apprehension of bodily

harm to him or herself or another. Section 3(c), ‘‘physical obstruction’’ means rendering impassable ingress to or egress from a facility that provides reproductive health facilities, or rendering passage to or from such a facility unreasonably difficult or hazardous.

Now, there is some concern about changes of definitions. Do any

of you support any change of definition, or are those the definitions

that you feel are really important and as part of any Attorney General’s mandate should be carried out?

Ms. GREENBERGER. I think those are very important definitions,

but I also think that some of those words are open to some interpretation, and it is very important not only to have the definitions,

but to have strong interpretations of what those statutory definitions mean.

Ms. FELDT. I will just add to that, and, again, I am going to

speak right now from the perspective of an on-the-ground provider

who has actually dealt with law enforcement at all levels. I know

less about the wording of the law and more about what it means

in the real life of people who are trying to provide services, but I

do know this, and that is that it has taken several years to actually

hammer out an understanding that is now agreed upon to a reasonable extent and being able to be carried out to a reasonable extent by law enforcement at all levels because the U.S. Justice Department does not ever have the personnel to be able to enforce all

of these laws uniformly across the country. It really does take

using their bully pulpit and their leadership and their prioritizing

of resources to make sure that their people will take the time and

the energy and the leadership at the local level and the State level

to bring together the various law enforcement agencies so that they

are all working off of the same page and so that they will use that

not just to apprehend a criminal once something terrible has happened, but rather to be able to prevent the violence and harassment and threats.

Senator FEINSTEIN. Well, I would strongly agree with that.

Now, my interpretation, and I want to put this in the record,

from what Senator Ashcroft said is that he would fully enforce, not

only the word, but the intent of the freedom of access to clinics law,

and that he would preserve the task force and that he would adequately fund it. ‘‘Provide it with resources,’’ I believe was the language that he used, and I think that is very important to get in

the record.

Ms. MICHELMAN. Well, I would just like I say I agree completely

it is important to get it in the record, and I appreciate the point

that you are making.

This law, the freedom of access to clinic entrances law, has been

challenged repeatedly by those who oppose a woman’s right to

choose abortion, and universally throughout the country, courts

have said this law is constitutional, that it does not prohibit freedom of expression, freedom of speech, and the right of those who

oppose to prey and speak out, march with signs, et cetera, but it

348

continues to be challenged, and the question I think a lot of us

have is with John Ashcroft, Senator Ashcroft at the helm of he Attorney General’s—at the helm of the Justice Department, what

kind of interpretation will he give, is this settled law or is it not

settled law.

You raised, Senator, he said he would honor and respect and protect settled law. Well, many of the questions that come up in the

area of reproductive rights law and policy are, according to many,

not quite settled. Some of the questions and some of the issues that

come before us, many of them will be a matter of interpreting the

law, and with all due respect to Senator Ashcroft, again, his record

of 25 years of unmitigated attempts, active participation in dismantling this law, the laws that protect women’s reproductive rights,

contraceptive access as well as abortion access, just speaks loudly

to the view that he—it is implausible to think that he would as Attorney General interpret, not just the enforcement part, but interpret the law that would guarantee women’s rights. It is just implausible.

But I think there is a lot of room for an Attorney General to

question whether a law is really settled.

Senator FEINSTEIN. Well, I would be very happy if you—you see,

I was very puzzled by the hearing because I saw a distinct change.

Ms. MICHELMAN. Yes.

Senator FEINSTEIN. And I accept and I recognize his point that

he would enforce the law, and those of us that know him and who

have worked with him have found that he has kept his word, and

that is an important thing around this place. If somebody gives you

their word, they keep it, and he has done that. Therefore, there is

also a tendency to take him at face value.

So, if you have any questions that you think we could further

clarify this, because this is a very important area—and I view this

as coming really from the administration, and I think we need to

know exactly what it is before we get hornswoggled.

Ms. GREENBERGER. Senator Feinstein, I just wanted to underscore that that is a point I was trying to make; that I don’t question his word. I think there may be miscommunication about what

he means when he says the law and settled law and what you or

others may think he means about the law and which parts of the

law are settled and which parts when they come up in the future,

he might say, well, that is an interpretation that isn’t part of settled law. So I think that he may be fully committed to enforcing

the law as he sees it.

Senator FEINSTEIN. Well, would you give us the specific question

on the parts of the law that may not be settled and let us ask his

view in writing, hopefully to get a prompt response before there is

a vote?

Ms. GREENBERGER. Yes. Thank you, Senator Feinstein.

Ms. MICHELMAN. One just final comment. The concern is that if

he is Attorney General and he is as Marcia said, interpreting the

law differently from the way we believe the law now states, the

protections the law guarantees, it will be too late after he is Attorney General for the women of this country as we find that his interpretation of the law, whether it is settled or not in all the asVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00362 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
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pects of the law that come up for us, it will be too late for women

then.

Senator FEINSTEIN. Well, let me just respond to that, just quickly.

Chairman LEAHY. We really— Senator FEINSTEIN. Very quickly. I mean, we are a 50–50 body.

Chairman LEAHY. You have had your time, Senator.

Senator FEINSTEIN. The Judiciary Committee is the oversight

Committee. Senator Hatch is a man of great integrity.

Ms. MICHELMAN. Yes, he is.

Senator FEINSTEIN. He has heard this entire discussion. I think

if the Attorney General were to depart from this, I would be the

first one that would importune Senator Hatch to bring him up before the Committee.

Senator HATCH. I can guarantee you that. I can guarantee that

you would be the first one.

[Laughter.]

Chairman LEAHY. I was going to finish your sentence for you,

Orrin, because I know exactly what you meant. You were not

agreeing that easily.

Senator HATCH. Let me tell you, I know my place, too.

Ms. GREENBERGER. Can a witness insert a quick point?

Chairman LEAHY. Yes.

Ms. GREENBERGER. That is, much of what we are worried about,

it never often comes to your attention, to our attention, in order to

hold an Attorney General accountable. That is what is so important

here. Much of it is prosecutorial discretion. Much of it is private

advice. Much of it is a matter of such, I guess, personal interactions that we, the public, and unfortunately the Senate would

never know— Chairman LEAHY. And that is a point that has been made a

number of times at these hearings, and we will stop at that point.

I would emphasize, because Ms. Greenberger raises the subtleties of something like that we have to look at it, and that is why

you have to make a judgment call.

There will be the record. Following our normal thing, the record

will be available for additional written questions to Senator

Ashcroft. The members of the Republican Party have some they

want to submit through Senator Hatch. The Democratic Party will

submit through me. He understands that he is available to respond

to those. That is our normal practice.

I would turn to the Senator from Arizona, and obviously he has

some extra time.

Senator KYL. Thank you, Mr. Chairman.

I really want to direct my first remarks to Senator Feinstein, and

then I will talk to the panel for a moment.

First of all, the issues that have been raised here and the process

is exactly correct, as you have described it, in my view. There will

be disputes as long as there are lawyers, and, unfortunately—well,

my wife might argue with that. I am a lawyer, a recovering lawyer,

namely. There will always be lawyers. There will always be disputes about words, and there will never be an end to litigation.

Those who are responsible for taking positions will, therefore, always have to make judgment calls. You all are absolutely correct

350

on that. Therefore, you have to ask carefully what kind of a person

is going to be making those judgment calls, what kind of commitments has that person made.

Having acknowledged that, I believe that your area of concern

here is misplaced. First of all, there is an assumption that John

Ashcroft disagrees with the particular law that you are concerned

with. He testified that he has no argument with that law. I personally have no argument with that law, and I sit here today committed to you, committed to Senator Feinstein. You will not have to,

first of all, contact Orrin Hatch. You can contact me, Senator Feinstein, because I am committed to the enforcement of the law in

every appropriate respect. Senator Ashcroft said that he was, too.

So there shouldn’t be any question about whether he will do so.

Does he like what goes on in the clinics? No. But is it appropriate to protect people’s rights to enter any place without undue

harassment and violence? Yes, a clear constitutional principle that

should be applied in many different situations. In fact, I have personally litigated it in labor disputes. It is not an unfamiliar legal

principle. So there should be no argument here about that, irrespective of his and my concern about some of the things that go on

inside the clinics.

If there is, Senator Feinstein, you let me know. We will march

down and talk to John Ashcroft, and I simply don’t believe this is

going to be a problem.

There are some other things that you are concerned about, and

I cannot make that same degree of commitment because I am just

not totally familiar with it, but I make that commitment to you

personally, and I believe I can also speak for the Attorney General

to be, I hope.

Secondly, let me welcome you, particularly Gloria Feldt who also

spent time in Arizona, a friend, at least I considered her a friend,

notwithstanding some of our differences.

I also want to, again, welcome Collene Campbell. You came here

on your own dollar, as I understand. Is that right, Collene?

Ms. CAMPBELL. Yes, sir.

Senator KYL. You testified before, I think it was, 4 years ago

when Senator Feinstein and I had a hearing, and at that time, you

were just beginning your political career. I wanted to go back.

Ms. CAMPBELL. No, I just didn’t tell anybody about it.

Senator KYL. Right. You have completed your second term as

Mayor of the city of San Juan Capistrano, as I understand. Congratulations on that.

You also said that you served as chairman of the Peace Officers

Standards and Training Commission and served on the California

Commission on Criminal Justice. So you come before us not just as

a personal victim of crime, but also as a representative of others.

Is that correct?

Ms. CAMPBELL. I was authorized to represent the people that I

told you about earlier. I guarantee, everybody in San Juan

Capistrano feels the same way I do. I am not sure about the POST

Commission. I didn’t ask.

Senator KYL. Mr. Chairman, I will just ask at this point to submit in the record a list of all the several organizations. I know Senator Feinstein would be interested in these, too, because, in fact,

351

I am sure she is familiar with many of them. They are all California victims’ rights organizations.

One of the key questions Senator Feinstein said to me yesterday,

I think one of the questions we have to answer is will Senator

Ashcroft follow the law, and that is a totally appropriate question.

She and I have a particular concern about that because, despite

the law and sometimes despite their best intention, even judges

haven’t followed the law frequently with respect to victims’ rights.

There are other things that are of a higher priority.

A Department of Justice study said that these laws are honored

more in the breach than the observance.

Unfortunately, here is where you get into this matter of discretion. We believe that the current Department of Justice has interpreted the law in such a way that it did not feel it was in a position

to help us, and as a result, it did not help us in getting our constitutional amendment to a vote on the Senate floor.

I happen to think John Ashcroft will see it a different way, and

he will help us to do that, and that is one of the reasons why I am

so strongly committed to him because I am so strongly committed

to this issue. I know from your testimony earlier, Collene, that you

said if this were not so important, I would not have come, considering the recent death in your family and the other tragedies that

you have had to endure. I think sometimes we do have to feel some

passion about these things. We do have to insist that the law will

be enforced, but it is not just some of the laws that have been

talked about here. It is also the victims’ rights laws and hopefully

amendments that we have been talking about.

Just a final point since the red light just went on.

Chairman LEAHY. The Senator has extra time.

Senator KYL. I appreciate that, Mr. Chairman, but I also appreciate you have been trying to move things along.

Not everybody on the dais right here was able to here all of the

testimony, and with the greatest respect to Harriet Woods who

served her State with great distinction, it was a totally different

John Ashcroft described by Jerry Hunter than it was described by

you, and if Jerry Hunter could take just 30 seconds for the benefit

of those who weren’t here to describe the John Ashcroft he knows,

I think that would be beneficial since you had your opportunity to

do it a second time.

Mr. HUNTER. Thank you, Senator Kyl.

I will just take a brief 30 seconds, as you say, but I would like

to go back and just briefly mention in response to a question that

Senator Hatch asked about the St. Louis City Election Board, and

I will briefly comment that when Governor Ashcroft was elected, as

I indicated, he tried to appoint responsible people in all positions

of State government. He came up with a group of individuals, both

white and black, to put on the St. Louis City Election Board. One

of his first nominees for the St. Louis City Election Board was a

black attorney in St. Louis.

In the Missouri system, when a Governor is appointing an individual that requires Senate confirmation, you have to get the State

Senator of that district to introduce that individual.

Governor Ashcroft, the first black nominee for the St. Louis City

Election Board was rejected by the black State Senator because

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that person did not come out of his organization. He came up with

a second black attorney in a different senatorial district to put on

the St. Louis City Election Board. That second black attorney was

rejected because, again, the two black State Senators did not feel

that they could introduce those individuals because they did not

come out of their political organization.

So, from the beginning, any efforts to make changes in the St.

Louis City Election Board were forestalled because State Senators

wanted people from their own organization, and even though John

Ashcroft was the Governor, they felt they should be able to name

those individuals.

As I mentioned in my testimony, Governor Ashcroft’s office called

me shortly after his election and said he wanted to find good people

and particularly of all races and African-Americans to appoint to

positions, and they asked me if I would work with him. I was practicing law in St. Louis at the time, and I worked with him for a

year and a half, prior to becoming the director of the Department

of Labor, and Governor Ashcroft appointed, as I indicated, numerous blacks to State boards and commissions. He appointed myself

as Department director. He appointed the first blacks to serve as

administrative law judges in the State of Missouri, both in St.

Louis and Kansas City, and in St. Louis County.

Unfortunately, I think there is some testimony, obviously, which

I don’t agree with. Clearly, Governor Ashcroft had certain standards. He wanted people who could think on their own who didn’t

have to call the ward leader and ask the ward leader how they

should vote on issues, and I think that is one of the differences that

I saw in Governor Ashcroft and maybe in appointments prior to

that.

The other thing I do want to just briefly mention, and I will stop

here, there was a reference—and I think my good friend, Ms.

Woods, indicated it, and I don’t want to make this too political— about how the State of Missouri would not want to find education

in the urban area of St. Louis City and St. Louis and Kansas City,

and I think in this past election, our current Governor who was

running against Congressman Jim Talent, was running ads in our

State of Missouri saying that Congressman Talent was going to

take all the money, education money from rural Missouri and give

it to the rich St. Louis County school districts, and I heard those

ads as I traveled throughout the State of Missouri.

So I think that should be on the record because, clearly, I

thought that was unfortunate. It played to the suspicions that people in our State of Missouri have of St. Louis, and that ad clearly

was run to damage Congressman Jim Talent.

Chairman LEAHY. I have noted it a couple of times during these

hearings, but we get some inquiries from the press, and sometimes

C-SPAN and others. I notice that some Senators have been in and

out of this hearing. It is not because there is any lack of interest

in either the Republican or Democratic side. We have several nomination hearings going on at the same time. The Senator from New

Hampshire, for example, has had a nomination hearing. Senator

Feinstein and Senator Cantwell have been in Energy all day today.

Senator Biden and Senator Kennedy have had other hearings. Actually, Senator Hatch and I have had to miss some Committees we

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are on because we are doing this, but just so people understand

and all the witnesses and States are wanting to be heard, all of our

staffs are here for all of this. Senators are in a not-unusual circumstance of having to be four places at once.

For example, I am on the Agriculture Committee. President-elect

Bush has nominated from California, Ms. Campbell, Ann Veneman

to be Secretary of Agriculture. I wanted very much to be there

today to applaud President-elect Bush for that appointment. I

knew Ms. Veneman when she was Deputy Secretary of Agriculture.

I think it was an excellent choice. I think Californians probably feel

that way. I think there will be unanimous support from Republicans and Democrats from California.

But that is just an example of what is going on. I just wanted

to put that on the record so people would fully understand.

Senator Feingold?

Senator FEINGOLD. Thank you, Mr. Chairman.

First, let me thank all of the witnesses, and especially Ms.

Campbell for coming here after a personal tragedy.

Let me make a couple of comments and general points before I

ask a question. First, I want to commend the chairman for how he

has arranged and handled this morning’s testimony. The disagreement over the confirmation of Judge Ronnie White is controversial,

potentially very divisive, and I hope that everyone on the Committee could now agree that both sides were treated fairly, given

ample time to discuss their positions, and most importantly, that

both sides had those positions aired with dignity, and I, again,

thank Chairman Leahy.

Chairman LEAHY. Thank you very much.

Senator FEINGOLD. Second, I want to say again to the witnesses,

some of whom have already testified before and some who are testifying now, as I said in my opening statement, I think the efforts

that are being made to raise questions about this nomination are

entirely appropriate. This is a highly controversial nomination. I

am glad this scrutiny is taking place because I believe these issues

have to be debated.

If nothing else, if Senator Ashcroft is confirmed, he will be more

aware of the heavy burden he bears to convince all of the American

people that he will be fair and even-handed and work for all their

interests, and even though this is a difficulty and grueling process,

I don’t think there is anything wrong for that kind of scrutiny. In

fact, given the tough issues that this Committee takes on and that

an Attorney General takes on, I can’t think of a place where it is

more appropriate.

Let me ask Ms. Feldt, Ms. Greenberger, and Ms. Michelman a

question after making a couple of comments. I agree with Senator

Feinstein and just about everybody else that we were struck with

the strength of Senator Ashcroft’s comments about enforcing the

law, probably a little stronger than many of us would have expected with regard to Roe v. Wade, and I think it is going to be

difficult for him to parse his words if he becomes Attorney General.

I would expect him, as some of the Republican members have indicated here, to live up to the spirit, not just the letter of the law,

and I think that is exactly what the three of you are trying to address, that it will not be sufficient to simply somehow point to a

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few words in Roe v. Wade and use an interpretation that will completely undercut the right to choose.

So, in that spirit, I would like you to say a little bit more about

your concerns with the nomination. As you know, I have made this

clear. I am not very persuaded when you tell me about his votes

and his vetoes. I don’t buy that as a reason to not put somebody

in a position.

What is more central, as Senator Schumer has well said, is

whether he can turn the spigot off, whether he will enforce the law,

and you have talked about at least two areas that relate to this,

the position or interpretation he may take working with the Solicitor General on interpretations for the Constitution. Another is

what literally will be done in terms of enforcing the law, but a

third—and I think you have already touched on it, but I would like

each of you to talk more about it—is his role as an administration

in terms of personnel and budgets and resources.

What concerns would you have in terms of the choice issue with

regard to the Attorney General Ashcroft, if he becomes Attorney

General in terms of the administrative role, starting with Ms.

Michelman.

Ms. MICHELMAN. Well, my number-one concern, of course, is that

as an administrator, as a leader, the Attorney General sets the

tone, establishes the values and the principles by which the Justice

Department carries out its duties, and with all due respect, again,

to Senator Ashcroft, you have heard 2 days of testimony. It strains

a bit of credulity, I think, to hear 2 days of testimony against 25

years-–25 years of not just passive opposition, but active participation in undoing—trying to undo a fundamental constitutional right

of women that took us a century to achieve, and it has taken many

forms.

So my first concern would be the values in the principles he

brings, the leadership he brings, and what values he wants the

Justice Department to uphold.

Second is what kind of people is he going to select, and if those

values and those views and those principles are hostile to the integrity of women and to our established constitutional rights, it

seems to me his selection of people who work for him will be informed by those views, and, therefore, will have more people in the

Justice Department who will join with him in his interpretation of

the law as it relates to reproductive rights.

His priorities, we have already talked about that a lot, what kind

of priorities he will bring to bear for the Justice Department.

You know how it is as a manager, as an administrative. You

have to establish goals. You can’t do everything. You have got to

establish your goals and your priorities. Is he going to put the full

force of the Justice Department behind enforcing all of the laws

that protect women’s constitutional rights of freedom of choice? I

just think there are so many ways that as the Attorney General

he will—so many ways, a myriad of ways, some of which we have

elaborated, some of which we haven’t even touched on, some of

which, as Marcia said earlier, are yet unknown or we won’t even

know about, that he will have an influence on the future of a woman’s right to choose and the laws that protect and guard our constitutional rights.

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The Attorney General is a prominent Cabinet member. He is not,

you know—it is sort of much more important in terms of women’s

rights than almost any, maybe the Secretary of HHS, but the Attorney General has a profound impact on the direction of the Justice Department, the influence on the President, and how interpretation of the law and even Federal legislation will be carried out.

I also think we do have the matter of what cases the United

States will argue before the Supreme Court.

Senator FEINGOLD. I see that. I am just trying to get at the administrative piece now.

Ms. MICHELMAN. The administrative. Well, that is an administrative piece. That is a decisionmaking—

Senator FEINGOLD. I was trying to distinguish that from other

things.

Ms. MICHELMAN. All right. Let me let others comments on that

very question.

Senator FEINGOLD. Thank you very much.

Ms. Feldt?

Ms. FELDT. Let me try to add to that and first say that I agree

with what Kate said. So I won’t repeat any of that.

I was listening very carefully to Senator Kyl and the exchange

with Senator Feinstein, and I know that this question of Mr.

Ashcroft as a man of his word is a very important one, and this

does speak, Senator Feingold, I think to how I think he might handle the administrative elements of what he has to do.

So I looked back at his record to sort of look at how did he handle some things as Attorney General in Missouri, and I have to say

that it is precisely because I think Ashcroft is a man of his word

that I fear what he might do as Attorney General of the United

States.

When he was the Attorney General in Missouri, he did, as

Marcia has already mentioned, take very aggressive stances. That

means that he did use resources. He did prioritize the use of resources and budgets and personnel and research and all of the

things that go into it. He took a very aggressive approach, even to

the point of testifying in Congress in support of that human life

amendment that would have banned all abortions. It is not a usual

step. I mean, that is an unusual and an unusually aggressive step

in an application of resources, and it speaks to an example of what

he might do.

Secondly, because of some of the other work that he had done in

shaping the State laws of Missouri, he ended up with quite a full

plate of litigation. For example, Planned Parenthood v. Ashcroft,

that also dealt with some of the limitations that he wanted to see

on the right to choose abortion.

Kind of moving to another arena in terms of the school desegregation litigation, he was willing to apply an immense amount of resources and personnel and energy to fighting the school desegregation process, and the district court had ordered the State and the

City Board of Education, as you probably know, to submit voluntary plans to desegregation, and he repeatedly delayed doing

that.

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Senator FEINGOLD. But I take it, your answer is that your concern is that the reverse would sort of happen here, that he would

shut off the enforcement.

Ms. FELDT. I am not talking just about the enforcement.

Senator FEINGOLD. Or the administrative resources.

Ms. FELDT. It is the administrative resources.

Senator FEINGOLD. He would shut off the resources that would

be pursuant to protecting the right to choose.

Ms. FELDT. I think there are big questions about that, and there

are even bigger questions about the use of resources to find ways

that cases could be brought, that cases could be shaped, that legislation could be shaped, and when he told the Missouri Citizens for

Life that he would stop at nothing until there is a constitutional

amendment outlawing abortion, I take him at his word, and I do

not think John Ashcroft should be Attorney General of the United

States where he would have the ultimate ability to be able to shape

that very Act.

Senator FEINGOLD. Thank you.

Ms. Greenberger?

Ms. GREENBERGER. Yes. Senator Feingold, I wanted to just add

something that I am not sure time had allowed us to get to before

on this, and it is a very important question that you asked. I know

you asked it in the context of choice, but actually I know that your

commitment to women’s rights and to fighting discrimination is

broad and I would like to try to include that if that is responsive

to your questions.

Senator FEINGOLD. Sure.

Ms. GREENBERGER. First of all, let me say with respect to administration, personnel, budget, resources, in Senator Ashcroft’s record,

in the choices of how he has allocated his budget priorities, we

have heard comments, but I am not sure you were there when I

mentioned in the context of vetoes, one of the vetoes I talked about

was picking out through a line item veto funding for domestic violence that the Missouri State legislature had appropriated, and

they were very small sums, actually. So it was very instructive to

imagine a Governor at the time finding and striking those specific,

quite small amounts out when there was really -

Senator FEINGOLD. So you are suggesting he would wield his

power as an administrator in the Department Justice— Ms. GREENBERGER. Yes.

Senator FEINGOLD.—And in a similar manner that he used his

line-item vetoes as Governor of Missouri?

Ms. GREENBERGER. Because the Domestic Violence Program is

within his purview as an administrator and is of central importance to the safety of women, and nobody could be moved more

than I sitting next to Ms. Campbell, about how much—we’ve been

holding each other’s hand through this entire testimony—how

much we want to avoid violence and victims, men or women, let

alone children. For those of us who are mothers, there is nothing

more horrifying than that. And the Violence Against Women Program that Senator Ashcroft would be administrating, with so many

discretionary judgments he would make about where that money

would go within line items—often it is in line item—how much it

would go for this part of the Justice Department or another part,

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is something that would be difficult to review. And his past actions

on that administrative judgment is clear.

I want to also talk abut— Chairman LEAHY. Ms. Greenberger.

Ms. GREENBERGER. Yes, sorry.

Chairman LEAHY. We are going to give everybody a chance to

add to their testimony and submit things for the record. I will let

you complete your thought, but then we are really going to have

to move on now for fairness to both sides here.

Ms. GREENBERGER. Well, the one other thing quickly I just did

want to add is there is a lot of discretion with respect to laws that

prohibit discrimination in employment and education, central to

women, and we saw, again, a major shift, a concrete shift in 1981,

and I wanted to give some statistics if I could, that I hadn’t a

chance to mention, involving disability discrimination, where suits

went from 29 in 1980 to zero in 1981.

Senator FEINGOLD. Thank you.

Chairman LEAHY. Senator Hatch.

Ms. GREENBERGER. Three over the next 3 years. And I could go

on, but that is some of the concrete concerns as an administrator.

Chairman LEAHY. Thank you very much.

Senator Hatch.

Senator HATCH. Just one comment. Ms. Greenberger, you know,

as the prime author, along with Senator Biden, of Biden-Hatch Violence Against Women Act, I can tell you on our side, John Ashcroft

was one of the more sensitive people working on that with us, and

in all honesty, a number of the provisions that are in that bill came

from Senator Ashcroft. So I think it is maybe not fair to ignore the

credit that he deserves in that area. I have been an active participant in that since the first passage of that bill, and a lot of people

do not realize what our side does sometimes, but he played a significant role in that.

Ms. GREENBERGER. Senator Hatch, I know you have, and I remember over many years how you’ve come to support women, lady

miners I remember, in Utah, and child care, and many other important things. But I want to go back to my point. Authorizing and

reauthorizing that bill is a very different matter than appropriating

funding for those programs, and that’s why I really wanted to focus

on the funding issue.

Senator HATCH. My point is that he is sensitive to these issues,

and I think he will do a very good job, and I intend to see that he

does. So I would not worry too much if I were you, because you

have both a sincere man who has worked on it diligently, but you

also have people up here in Senator Biden and Senator Hatch, who

are going to make sure that that works very well.

Chairman LEAHY. The very patient senior Senator from Ohio.

Senator DEWINE. Mr. Chairman, you keep insisting on calling

me the senior Senator here, so you make me feel old.

Chairman LEAHY. You are the senior Senator. Are you not the

senior Senator?

Senator DEWINE. In service, that is correct.

Chairman LEAHY. Well, that is what I mean. But what makes it

worse, the first day or the first week after I became the senior Senator from Vermont—I was about 10 years younger than I am

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now—to get introduced at some event in Vermont, ‘‘With great

pride, we introduce Vermont’s senior citizen.’’ Senator DEWINE. Senior citizen, well, at least you did not do

that, Mr. Chairman. Thank you.

Chairman LEAHY. No.

Senator DEWINE. Although I guess I am getting close.

Let me thank our panel for your patience and your testimony. I

want to thank all of you for coming in today in this very important

hearing. Mayor Campbell, thank you for coming in. As other Senators have said, we know this has not been easy, this has been difficult, but as you said, it is important, and we appreciate you being

in here, and we appreciate you testifying not only for yourself, but

for different victims’ groups and for victims of crime.

I must tell you that John Ashcroft, in my experience, has been

someone who brings a real passion to the issue of victims’ rights.

Politicians always talk about victims. That is very easy to do. It

has not always been really, though, fashionable to back up your

words with actions. And it has been my experience that John has

done that, and it has been my experience that John truly brings,

when you talk the him as I have about this, and I know as you

have as well, that you just see the passion that he brings to this.

And I think it goes to his empathy and his understanding, and the

fact that he has dealt with many victims, as many of us have. And

when you talk with victims and understand, as the chairman has,

if you are a prosecutor, or if you are Attorney General, I think you

see that up close and personal, and you really understand it.

So, I just want to give my own comment about that, and I appreciate it, and I think that John just brings an unbelievable passion

to this cause, and I think that he will be the advocate as Attorney

General for the victims of crime in this country. He has done that

in the U.S. Senate. He did it as Attorney General. He did it as Governor. And I expect that he will do that as Attorney General of our

country.

John—and I do not know if this, Mr. Chairman, has been mentioned before, but one of the areas that John worked on and brings

a passion to is in the area of missing children. A quote that I would

like to put in the record from Steve McBride, executive director of

the National Center for Missing and Exploited Children branch in

Kansas City, a brief quote. ‘‘John Ashcroft’s ground-breaking initiative as Governor and his efforts in the Senate to provide the necessary resources to find missing children, have had a wonderful effect. Since he formed the first regional agreement with five Governors, recovery rate in missing children cases has increased from

60 percent to 94 percent.’’ End of quote.

And as has already been mentioned, John was presented with

the Congressional Leadership Award by the National Center for

Victims of Crime, quote, ‘‘For leadership that expands national discussion about crime and victimization issues, to include nonviolent

crime and its victims.’’

He secured funding for $800,000 for the National Victim Rights

Hotline in 1999. Helped secure $100 million in increased funding

to combat violence against women. Helped to enact legislation, increasing penalties for those who purposely defraud seniors with

tele-marketing scams.

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And we could go on and on, but I think, Mr. Chairman, it is a

record that John can be very proud of, but more important than

that, I think it is a very good indication of what type priority John

will have as Attorney General of the United States.

We have seen a tremendous change in the way we deal with victims in this country. I started as a county prosecuting attorney,

1976, in my home county in southwestern Ohio, Greene County,

and quite candidly, the crime victim agenda just was not there. We

tried to help the victims. We did it on an informal basis. We

worked with them as prosecutors and police, and tried to make everyone sensitive, but there were people who frankly fell through

the cracks, literally, and we just did not get to because we did not

have any formalized programs. Today what we see in this country,

as you know—and although that still happens, and sometimes victims are not treated correctly, and we have to work on that and

fight about that and fight for that, but we are doing as a country,

I think, better. And we are getting some systems in place, and we

are doing it at the local prosecutors’ offices. We are doing it in state

attorneys general offices. We are doing it with not only crime victim compensation in some states, many states, but with very, very

formalized programs.

And the Federal Government plays, and must continue to play,

a major role in this and a major role with funding. And this is an

area where I just have every, every confidence that this is going

to be a man who will make us very, very proud as Attorney General.

And so, Ms. Campbell, thank you for coming in.

Mr. Chairman, I will not take any more time. I appreciate the

Chair’s courtesy, and I again thank all the members of the panel.

Chairman LEAHY. And you are submitting something for the

record there too? You submitted something for the record too, or

you just read it for the record?

Senator DEWINE. No, I just read it right in.

Chairman LEAHY. OK. The senior Senator from New York.

Senator SCHUMER. Thank you, Mr. Chairman. And I want to

thank all of the panel. I know it has been a long day.

I guess my first question that I would like to ask of both Ms.

Feldt and Ms. Michelman, is about a law that is important to me,

the FACE law, which I authored when I was in the House. And

first I wanted to clarify the record, because it has not been. On

that FACE law we did have an amendment in the bankruptcy bill

which would prevent those who did violence or threats of violence

against clinics, not to hide behind the false shield of bankruptcy to

avoid the consequences of their actions.

What we found was the FACE law was remarkably successful.

Before the law, a large percentage of the clinics in America had

been closed down, the family planning clinics, by blockades, by

threats. And the FACE law gave the clinics the right to sue, and

it was remarkably successful. Unfortunately, some of those sued

then decided to use bankruptcy. The most notorious case was that

of the Nuremberg files, where the people who put these together,

had the names and addresses of doctors who performed abortions

on the screen. When one died—when one was killed, they were

taken off. When one was injured, they were grayed over. And a

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clinic in Oregon, in Portland, Oregon, that had been targeted, one

of the clinics, by this group, sued. I think there were 12 defendants. They won. They won a large judgment. And then each defendant went back to their home state and declared bankruptcy, making it extremely difficult for a poor little clinic to go around the

country and follow them down.

So this law, the idea was you should not—it was modeled on a

law we used against drunk drivers, same thing for someone who

had hurt somebody in terms of drunk driving would be sued and

declare bankruptcy, and we said you could not use bankruptcy

then, and so we did the same thing here.

Senator Ashcroft, it is true, as many of my colleagues have

noted, voted on the floor to support that amendment. However,

what they have neglected, and he neglected to mention, is that he

had voted against it in Committee. And actually, on the floor it

looked like it was going to be a tough fight to win it. Al Gore, who

was then both Vice President and candidate for President, came

back from wherever he was because it looked like it might be a tie

vote. And at that point, at least the newspapers reported, maybe

some will dispute it, that Senator Lott urged his colleagues to vote

the other way so that Gore would not have the drama of breaking

the tie, and urged a lot of his colleagues to vote the other way. It

passed 80 to 20. We have never had such a pro-choice victory on

the floor of the Senate, at least in the 2 years I have been here.

And Senator Ashcroft did vote the other way. But he had voted

previously, maybe a couple of weeks or a month or two before,

against the bill in Committee.

But my question is: since one of the most important functions of

an Attorney General, at least in the area of women’s reproductive

rights, is to implement the FACE law and support the clinics, or

prevent the clinics from being shut down by violence or threat of

violence, what do you think will happen if the FACE law is not aggressively pursued, if the task forces that are in place—I was glad

to hear Senator Ashcroft, in response to a question from my colleague from California, say that he would keep these task forces in

place, that he would fund them—I think his word was ‘‘adequately.’’ But what would happen if they were not, if the Justice

Department played a less forward role in protecting those clinics?

And maybe I will call on Ms. Feldt and Ms. Michelman to answer

that one.

Ms. FELDT. Sure. Thank you, Senator Schumer. I guess to put

that in perspective, the first thing I should do is simply review

what happened before FACE, because that might be the best way

for us to think about what might happen if it were not appropriately enforced.

The very good news is that since the passage of FACE in 1994,

there has been really a precipitous fall in really all of the major

categories of violence and criminal acts perpetrated against health

centers, compared to the 5 years before that. The number of murders of medical staff dropped 40 percent. Attempted murders fell

by 36 percent. Arson dropped by 58 percent. Attempted arson and

bombing fell by 50 percent. And incidents of harassment, disruption and blockades also showed a decline.

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In my oral testimony earlier today, I talked about what it felt

like as a provider to be personally harassed, vilified, death threats,

bomb threats. You name it, I have probably dealt with it.

As I began to think about the answer to the question though— and I think all we have to do is look at how it was before and get

a picture of what it might be like after if in fact it is not properly

funded and not properly supported, and most importantly, not

properly given the bully pulpit and the leadership and the—in addition to the resources, because it really does require that.

As I thought about my answer, I began to have this feeling of

outrage, that we should even have to talk about the need for such

a law. It is truly outrageous to think that health care providers,

that women seeking health care, that those of us who believe with

all our hearts and souls, that women must be able to control their

own fertility if they are going to be able to enjoy any kind of equality in this world, have to even think about the necessity for such

a law.

I apologize for getting on that little soapbox, but I must say that

I see the enforcement of FACE as being an immensely important

issue, but the much larger issue even than that, is the whole question of the legality and the social support for a woman’s ability to

determine the course of her own life. Thank you.

Senator SCHUMER. Do you want to add something? See, my time

is up.

Ms. MICHELMAN. Yes, just a quick addition to Gloria’s, I think,

very fine response.

Since FACE was enacted in 1994 the Department of Justice has

obtained convictions of 56 individuals in 37 criminal prosecutions

for violation of the law. Now, as of this January, the Department

of Justice has 53 remaining open investigations under FACE and

related statutes. So the question is: what do we fear? Not only, you

know, the reality of threats to women and health care professionals

and to their lives if it’s not enforced, but will the Attorney General

continue with these investigations with great vigor and commitment. Again, this goes to establishing priorities and goals, and we

respectfully suggest that it’s hard to believe that there will be great

weight brought to this, given Senator Ashcroft’s long record of opposition to a woman’s right to choose.

Chairman LEAHY. Thank you.

Senator SCHUMER. Thank you, Ms. Michelman

Chairman LEAHY. The Senator from Alabama, Senator Sessions.

Senator SESSIONS. Thank you, Mr. Chairman.

Senator Schumer, I guess—is still there—but as I recall the facts

on the FACE legislation, Senator Grassley, who was a prime sponsor, and I in Committee, opposed this amendment, this bankruptcy

amendment on bankrupting any judgments, because we believed it

was inconsistent and unprincipled, targeting one simple group, and

we discussed options and that kind of thing. And we saw it as a

poison pill, and I think most people who supported the bankruptcy

bill, voted with us in the Committee, but on the floor, Senator

Ashcroft did choose to support it, much to my surprise, because I

felt like it was in fact a targeting of one kind of protest, but there

was a refusal on the part of the sponsors of that to be willing to

cover people who blockaded work sites or things of that nature.

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That is kind of the inside ball-game story of that. I don’t think it

reflected a lack of integrity on his part. Certainly he enforced a

similar FACE law in Missouri, and as I understand, lectured some

abortion protesters about the need to follow the law. And that’s certainly been his career and commitment, I believe.

On the abortion question, it has been suggested that he had,

sometime ago, did not believe Roe was wrongfully decided. Attorney

General Dick Thornburgh, when he was confirmed, testified he

would not hesitate to ask the court to overrule it; Attorney General

Barr, both whom I served under, said that he thought Roe was

wrongfully decided. He has made some commitments on Roe v.

Wade I think are quite significant, and I think should be comforting to those—to you.

Mr. Susman, you used the phrase, I believe, ‘‘He fought against

court-ordered desegregation plans’’ in your phrase. I think that is

an accurate description of what went on in St. Louis. I do not believe he should be characterized as having fought desegregation.

That has upset me, and Senator Kyl has raised that point. I think

that was an inaccurate legal description of what went on.

Mr. Robertson, you, in at least some of this period, I believe were

in the Attorney General’s office. This St. Louis plan involved a settlement of one school system’s problems; is that right; or two; was

it one?

Mr. ROBERTSON. Well, the settlement that the Attorney General’s

Office ultimately challenged and continue to challenge, was a voluntary settlement between school district in the suburban part that

had not been actually found guilty, and they invited the state to

pay for it so that they would be absolved of that responsibility.

Senator SESSIONS. Well, Senator Smith and I have been working

on a charity that we would like to see funded, and we have agreed

it ought to be funded, and we are going to ask Senator Kennedy

to pay for it, I guess, or Senator Leahy. Basically the people of Missouri were being asked to pay for a school system in the St. Louis

area, all the people of Missouri; is that correct?

Mr. ROBERTSON. That’s correct.

Senator SESSIONS. And the Attorney General is a lawyer for all

the people; is that correct?

Mr. ROBERTSON. That’s correct. And the state was a defendant

in the lawsuit, and the law requires the Attorney General to defend

the state.

And I think it’s important to make another point, and that is

that we, every year, were involved in budget negotiations to fund

this plan, and that every year we only challenged those things

about which we could not agree. To characterize this as being

standing in the steps or the doorway of a schoolhouse by then Attorney General Ashcroft I think is to mischaracterize what happened. Further, his concern was the concern expressed by Representative Gephardt at the time, that we’re not helping children

here. We’re just moving them around. And as Representative Gephardt went on at that point to sponsor an amendment to ban busing in the United States Constitution.

Senator SESSIONS. This is the Minority Leader in the House of

Representatives.

Mr. ROBERTSON. And reported in the St. Louis Post Dispatch.

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Senator SESSIONS. He agreed with Senator Ashcroft on this desegregation court plan basically, or opposed it also?

Mr. ROBERTSON. Well, he then. I’m not sure he would now.

Senator SESSIONS. Well, I think that is significant. I think we

ought to know that. I am glad to hear that.

Mr. ROBERTSON. Well, and we did what we thought was appropriate under the law, to attempt not only to help the children, but

to protect the taxpayers. There was never a conversation—and I

was involved in many of them—in which there was any statement

by John Ashcroft that could be interpreted as ‘‘We’re going to stop

integrating schools.’’ It was the plan that was being imposed that

was the problem, not the end that was being sought.

Senator SESSIONS. Would you offer for the record the article that

shows the Minority Leader of the House, Mr. Gephardt, agreed

with Senator Ashcroft, that this was not a good plan for children

in the St. Louis area?

Mr. ROBERTSON. I would be pleased to do that if the Senator

would like for me too.

Senator SESSIONS. And I would like to talk about this other one,

this Kansas City desegregation case. Is it not in fact, perhaps the

most notorious court order in the history of the United States? Is

that not the one in which the Federal court in Kansas City, Missouri ordered a duly elected commission to raise taxes?

Mr. ROBERTSON. I might want to fight with you over the word ‘‘notorious’’, but it was in fact a very— Senator SESSIONS. The Taxation without representation phrase

was heard a lot in America by people concerned about it.

Mr. ROBERTSON. That’s correct.

Senator SESSIONS. Federal judges are unelected, have lifetime

appointments, and are unaccountable to the people. I do not believe

they should be in the business of raising taxes.

Mr. ROBERTSON. Well, ultimately, I think the Supreme Court of

the United States agreed with you on that question.

Senator SESSIONS. Well, in this Kansas City case—correct me if

I am wrong—the Federal judge ordered, among other expenditures,

an eight-lane, 50-meter swimming pool, better than any swimming

pool in any college in the State of Missouri, a 300-seat Greek amphitheater, a stage framed by white columns, a planetarium, greenhouses, dust-free diesel mechanic shop, broadcast cable, radio, TV

studios, school animal room—I am not sure what that is—private

nature trails, overseas trips for students, model United Nations

with foreign language translation. The price tag for these being,

eventually reached, I understand, $1.7 billion. Is that consistent

with your recollection of the case that Attorney General Ashcroft

resisted?

Mr. ROBERTSON. Well, that is an accurate rendition, as I understand it. But I want to make the further point that never a single

time did Attorney General Ashcroft direct the State not to pay

money that had been ordered by the court, even when that order

was being appealed.

Senator SESSIONS. Did you personally have to approach him—

Chairman LEAHY. I know some of the witnesses have to leave,

and I just want people to know, after Senator Durbin and Senator

Smith ask questions, we will dismiss this panel.

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Mr. SUSMAN. Forgive me for interrupting. Let me offer my apologies, but I was supposed to be in California today and the last

stage out of Dodge is 5:30, and if don’t leave, I won’t make it.

Chairman LEAHY. As my mother’s family would say, Andiamo.

Senator SESSIONS. Just one yes or no question for Mr. Robertson.

Chairman LEAHY. In fact, if anybody else is in that same situation, feel free.

Senator SESSIONS. Even after all these expenditures, is it accurate that Missouri stripped the school district of its accreditation

in 1999 even after all this?

Mr. ROBERTSON. The tragedy, Senator, is all this money results

in lower test scores and greater minority concentration in the

school district.

Senator SESSIONS. We can do better. There are better ways to do

business than the way it was done in Missouri.

Chairman LEAHY. Senator Sessions, certainly—I mean, I am here

for the Committee. We can have further rounds on this, but we

want to finish these hearings before the inaugural at noon on Sunday.

Senator SESSIONS. Well, I have gone over a lot less than the last

three on this side of the aisle.

Chairman LEAHY. I understand. No, I am not cutting off the Senator. If the Senator wants to have another round, we will have another round.

Senator HATCH. I suggest that we enforce the 5-minute rule, and

let’s—

Chairman LEAHY. I see Senator Brownback is back. The Senator

has not had questions. So it will be Senator Durbin, Senator

Brownback, Senator Smith. We will then break, and Senator Hatch

and I will invite—we will break for 5 minutes. Senator Hatch and

I will invite all Senators on both sides out back to talk about seeing

which ones we can finish tonight and what time we will start in

the morning.

Senator Durbin?

Senator DURBIN. Thank you, Mr. Chairman. I am always heartened that there is a reminder to enforce the 5-minute rule by the

time it gets down to this end of the table.

[Laughter.]

Chairman LEAHY. What is it, 10 minutes here, 5 minutes there?

Senator DURBIN. I am also reminded of Muriel Humphrey’s admonition to Hubert Humphrey that a speech does not have to be

eternal to be immortal. So I will try to be brief.

First, let me thank Ms. Campbell. All of the witnesses made a

sacrifice to be here. You made a special sacrifice, and thank you

for being here. It makes a big difference. We really appreciate that.

I would like to ask some of the panelists here, Ms. Greenberger,

Ms. Feldt, Ms. Michelman, and Ms. Woods as well, most of you

heard the testimony of Senator Ashcroft relative to what is settled

law. I think that is going to become a very important phrase should

John Ashcroft become Attorney General. And I found it interesting

in his opening statement that he said he believed Roe v. Wade and

Casey were settled law in the land. And yet when Senator Schumer

and I tried to follow up on the whole question of the partial-birth

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abortion ban to ask him what that meant, I am not certain we received a direct answer.

I think we understand that most Americans believe that thirdterm late abortions should be rare and confined strictly to those

cases where a woman’s life or health are in jeopardy. We have debated this over and over in the Senate, and Senator Santorum of

Pennsylvania, who offers this regularly, has said he will not include the protection of a woman’s health when it comes to these

late abortions. And many of us have said that is an important element to include.

We have been criticized by some who say that we were insensitive, but that has been the case, that has been the vote, and that

has been, I guess, the outcome, until this case comes along under

the Nebraska statute. The Nebraska statute did not include an exception for the health of the mother in late abortions and was sent

to the Supreme Court for a decision. And the Supreme Court I

thought gave a very clear answer to the Nebraska statute. It threw

it out and said that under the Casey decision, you have to protect

not only the life of the mother but the health of the mother. Unequivocal. And they said the Nebraska statute didn’t do that.

The point we tried to make yesterday and asked of Senator

Ashcroft on this whole settled law concept is: What would you do

with the Santorum bill if it came to you again and didn’t have the

health protection provided by Casey, reiterated by the Supreme

Court in Stenberg v. Carhart? And, unfortunately, what seemed

like an unequivocal answer in the beginning about what he would

do as Attorney General fell apart. When he was asked by Senator

Schumer if he would advise the President to veto such a bill, I am

not sure we got a straight answer.

When I asked him whether or not a Santorum bill without the

health protection came up before the Supreme Court, what he

would do as Attorney General, again, he equivocated.

That leaves me uncertain as to how this Senator, who has been

resolute in his opposition to a woman’s right to choose throughout

his public career and has told us in the last 48 hours he is a different person in a different job with a different attitude, could fail

to answer that basic question.

Ms. Michelman, could you respond your view of his response yesterday?

Ms. MICHELMAN. Well, I would offer that you raised a very critical challenge to Roe v. Wade, which are these bans on abortion procedures that you have dealt with as a Senate and this Congress indeed has over the last 5 years. And that challenge that these procedure bans raises go to the very heart of Roe v. Wade. Not only did

they not protect women’s health by ensuring that exception, but

they also were written so vaguely and, you know, in such a way

that they would, in fact, criminalize many commonly used forms,

many commonly used procedures from the earliest moments of

pregnancy.

Also, the ban did not follow and was not constitutional under Roe

because, again, it would cross trimester lines. I mean, the thing

about Roe v. Wade was it was a carefully balanced decision, recognizing and guaranteeing women a right to choose in the first two

trimesters of pregnancy, without any government interference.

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In the last trimester, Roe said indeed States may prohibit abortion except there have to be exceptions for when a woman’s life is

at risk and her health is at risk.

These procedure bans that you are talking about have not included those exceptions and have not made sure that these laws

are constitutional under Roe. So it seems to me that what Senator

Ashcroft found himself doing was having difficulty when it comes

right down to establishing that he will enforce the law in the question of these cases. He wasn’t able to guarantee, or even talk about

the fact that these cases are a violation of what he considers established law. They were violations. They were attempts to overrule

Roe. They were clearly unconstitutional. The Supreme Court has

already said this. And he wasn’t able with the same force that he

has been saying for 2 days that he will uphold Roe, he wasn’t able

to see that case.

So I think it again just raises the question as to whether 2 days

of testimony can offset and overturn 25 years.

Senator DURBIN. Thank you very much.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you.

Senator Smith?

Senator SMITH. Thank you, Mr. Chairman. Is it 5 minutes now,

Mr. Chairman?

Chairman LEAHY. We are trying. We are trying. Hope springs

eternal at this end of the table.

Senator HATCH. It is 5 minutes, though.

Chairman LEAHY. For your side, I am going to let Senator Hatch

run the clock.

Senator HATCH. I refuse to handle the gavel. I know my place.

[Laughter.]

Senator SMITH. Don’t start the clock until you guys— Chairman LEAHY. You are all right. Go ahead.

Senator SMITH. Ms. Campbell, let me say what others have said

to express my sympathies to you for what happened, and for you

to be here and sit through a debate on other matters, too, is very

difficult, and my heart goes out to you. It is a terrible, terrible

thing to have to experience.

Ms. Michelman, as you might expect, we have differences over

this issue, and I am not going to debate it here, obviously. But I

guess the only thing I would say is: Aren’t we really, in essence,

conducting an extension of the campaign here? I am assuming that

your organization, the National Abortion Rights League, didn’t support Governor Bush. That is obvious. He won. Doesn’t he have a

right to pick his Attorney General?

Ms. MICHELMAN. Senator, I—

Senator SMITH. And please be brief, not out of disrespect, but I

do have a couple of other—

Ms. MICHELMAN. OK. Let me just say I think this threat to the

constitutional right of women to freedom of choice is much too serious to relegate it to political—dismissing it by referencing the election. Of course, we endorsed a pro-choice candidate, but we fully respect the President-elect’s right to choose his Cabinet, and we fully

expected him to choose a conservative nominee for Attorney General and, in fact, one who would oppose Roe v. Wade.

367

This is different. This candidate is way outside the mainstream

of any kind of thinking on—you know, in opposition to contraception. So there is much too much at stake. This is not about the

past. This is about the future of a woman’s right to choose, and

that is why we so strongly oppose this nomination.

Senator SMITH. And I understand and I respect you for your

views. There are those, though, that would say that in 1857 when

Dred Scott was not allowed to sue in Federal court because he was

a slave and, therefore, property, they thought that was wrong. I am

not saying it is the same issue, obviously, but—or Plessy v. Ferguson, that was the law of the land at one time, and that had to

be changed. There are those who respectfully would disagree.

But let me just see if I could focus on it this way. So if that is

the—if that is the disqualifier, again, I just would remind you,

when Senator Hatch had the gavel when Janet Reno was confirmed—I could be wrong. Correct me, Senator Hatch, if I am. I

don’t recall whether it—maybe there were requests made, but Senator Hatch did not have pro-life advocates here at the table and

criticizing Janet Reno. I voted for Janet Reno, as did all of my colleagues, and I disagreed with her vehemently on this issue because

Bill Clinton won the election and respectfully I thought that he had

the right to pick his Attorney General, and I really believed that

she would enforce the law of the land, no matter what it is. I think

Senator Ashcroft—I know Senator Ashcroft will do likewise.

But with respect, let me just see—I am trying to figure out who

is acceptable. William Rehnquist is the Chief Justice of the United

States. If he had been asked to serve as the Attorney General—he

is pro-life; he has voted that way. If he were asked by President

Bush to be Chief Justice—to be Attorney General, would it be acceptable to you?

Ms. MICHELMAN. Well, I— Senator SMITH. Just yes or no because I am trying—

Ms. MICHELMAN. I think we are talking about Senator Ashcroft.

Senator SMITH. I know we are, but I am trying to understand the

criteria—I am trying to understand the criteria for choosing.

Ms. MICHELMAN. The criteria, Senator, is about an Attorney General who will—whom Americans can count on to respect and defend

and protect their established constitutional rights— Senator SMITH. And in every— Ms. MICHELMAN.—and Senator Ashcroft is not that Attorney

General.

Senator SMITH. Well, Senator Ashcroft has had experience that

many in this job have not had as Attorney General, and with one

or two notable exceptions, I think was absolutely strictly adhering

to the law. You can be an advocate—you are always an advocate

in your heart, but there is a difference between advocating as a legislator and as—Senator Ashcroft would legislate aggressively on

what he believes, as you would, but as the enforcer of the law, he

has an obligation to do it. He took an oath to do just that. So I am

just assuming that, whether it is Senator Hatch—is Senator Hatch

qualified? He is a supporter of the human life amendment. Would

he be acceptable to you as the Attorney General of the United

States? I know I am not, but I was just curious about Senator

Hatch.

368

[Laughter.]

Senator SMITH. Let me just point out with respect to all my colleagues, some of whom I am going to quote here, I am trying to

make a point. I think you have to be fair and not extend—this is

a pretty important nominee. I respect, I understand that is a lifetime appointment. But, you know, we saw apologies down the table

on the other side for Ronnie White. I didn’t realize that one Senator could apologize for another Senator, but apparently that did.

So in that spirit, I will apologize to Clarence Thomas and I will

apologize to Robert Bork for what the Senate did to them.

But let me just say why I think you get in trouble. Let me read

a quote. Wanted or unwanted, I believe that human life, even in

its earliest stages, has certain rights which must be recognized, including the right to be born. Once life has begun, no matter at

what stage of growth, it is my belief that termination should not

be decided merely by desire. When history looks back to this era,

it should recognize this generation as one which cared about

human beings enough to fulfill its responsibility to its children

from the very moment of conception. That wasn’t John Ashcroft

who said that. That was Ted Kennedy who said that 2 years before

Roe v. Wade in 1971. Very interesting.

So I guess what I am saying to you is—and we could go on and

on. Byron White, who worked under Robert Kennedy at the Attorney General’s office, appointed to the Supreme Court by John F.

Kennedy, ‘‘I cannot accept the Court’s exercise’’—this is Roe—‘‘by

proposing a constitutional barrier to make State efforts to protect

human life and by investing mothers and doctors with the unconstitutionally protected right to exterminate it.’’ The point is people change, people enforce the law regardless of

their views, and John Ashcroft is going to be confirmed. And when

he is and you look back on this period of time 8 years ago—I know

him well—you will find that he will enforce it. There are going to

be times he is going to enforce it that he wished he didn’t have to.

But he will. And that is the issue here, and I wish that we were

not extending—and I say this respectfully. I think we are extending the campaign. None of us on this side that I know of many any

effort to derail the Reno nomination or embarrass her in any way

because of her views. And I think that is, frankly, the difference

in this bipartisan—so-called go-along, get-along bipartisan Senate.

That is really the difference as to the two sides in this issue.

Chairman LEAHY. Senator Brownback?

Senator BROWNBACK. Thank you, Mr. Chairman, and I thank the

panel for being here through a long day for everybody. I just want

to make a couple brief points and recognize my limit of 5 minutes,

and everybody starts getting antsy when I get up because I am the

only thing that stands between them and the door. So it shortens

things up.

One of the things that has been troubling to me is that it seems

like that you are going at the nominee here and trying to paint him

in an extreme light when the issue is not the point of view that

he has taken, which I think can be fairly categorized in many cases

as quite mainstream, but really that what it is about here is

whether he will enforce the law. And then you try by extension

saying, OK, he has taken this political position; therefore, that is

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how he will enforce the law. And I don’t think that that is really

a fair characterization.

I realize you have differences of opinion with the nominee on the

issues. Partial-birth abortion, you have differences of opinion with

him on that. But I don’t think you could put the nominee’s position

as extreme on partial-birth abortion. He voted for the Santorum

bill. That is where—I have got a poll here—shows 73 percent of the

American public is. Your organization opposed this bill on the partial-birth abortion, and I think your group would be deemed more

outside of the mainstream on that particular issue.

On parental notification, a number of people, over 80 percent of

the American population believes that parents should be notified if

their under-age daughter is having an abortion. Your organization

has opposed that. The nominee says that parents should be notified. And then you use these sorts of other positions to say he is

outside of the mainstream, you are in the mainstream; therefore,

he can’t be trusted to enforce the law—not the position that he has

taken.

The only overall point that I am trying to make here is that you

can take a lot of different positions from people, and we can look

at the issue of partial-birth abortion or if you want to look at parental notification of this where the public is generally saying we

don’t like partial-birth abortion and we think parents should be notified, and you are outside of the mainstream on that, the nominee

is within it. But that is irrelevant on both sides.

The issue is: He has stated that he will enforce the laws, that

he will uphold the laws of this land, that he has done that in the

past and that he will do that in the future. And so I don’t think

it is a fair characterization to try to paint one way off of a position

and, therefore, then pull it all the way around to say this is going

to be how he will be as Attorney General.

I have noted that NARAL has opposed a number of nominees in

the past: Justice Souter, Justice Rehnquist as Chief Justice, Justice

Scalia, Justice Thomas, William Barr as Attorney General. So I

know that this is a consistent position that you have taken in the

past, and I respect that consistency that you have been there. But

I don’t think that this is a fair way to say that your Attorney General will act extrapolating off of policy positions. So I respect your

willingness to do it, your desire to stand up and to say so. I would

just hope that we would look at what we are about here today, and

that is not debating partial-birth abortion, not debating parental

notification, but whether or not this nominee will enforce the law.

And I don’t think you can extract from a policy position that note.

So, Mr. Chairman, I realize it is late in the day for this, but I

appreciate the opportunity to be able to speak and thank all the

panelists for being here and being willing to testify.

Chairman LEAHY. Every Senator has the right to be heard on

this, no matter which side they are on, and I think Senators realize

the Chair is trying to protect the right of each Senator on each

side, on both sides of the aisle, to have their time. And that is why

I have allowed extra time several times on both sides of the aisle.

If there are no further questions— Senator SMITH. Mr. Chairman, may I make a 10-second comment?

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Chairman LEAHY. Of course. Take 12.

Senator SMITH. One other item I neglected to mention was that

on your scorecard in 1999, you gave a 0 to Senator Ashcroft. You

also gave a 0 to Senator Breaux and a 5 percent to Senator Reid,

which means under that criteria, neither one of them would be

qualified to be Attorney General either.

Chairman LEAHY. Well, as soon as Governor and now Presidentelect, soon-to-be President Bush nominates either Senator Breaux

or Senator Reid to be Attorney General, we will get right to that

issue immediately.

Senator SMITH. It will be very interesting to see where the opposition came from.

Senator HATCH. If I could add something, we are glad to see you

back. It has been 8 long years without you.

[Laughter.]

Chairman LEAHY. That is very good.

Senator HATCH. I have missed you.

Chairman LEAHY. You are not as serious as you try to let on.

OK. If nobody else has got a question—anybody else?

Senator HATCH. No more questions.

Chairman LEAHY. We will recess for 5 minutes. Both parties will

meet out back to see where we go, how far we go.

[Recess from 4:50 p.m. to 5 p.m.]

Chairman LEAHY. We will start with this panel and this is almost like the Durbin lament. When we get down toward the end,

we start saying, by golly, we are going to keep time. As Senator

Durbin has pointed out to us, why didn’t somebody think of that

earlier before it got to him? We are going to try to do that. We will

go through this panel. We are going to go until about 6. I say

‘‘about’’ because I am obviously not going to cut somebody off in the

middle of a question or testimony, and then come back tomorrow.

We have to give up this room by around noon tomorrow because

of various inaugural events, and Senator Hatch and I have determined to wrap this up, because there are still questions that are

being submitted in writing to Senator Ashcroft and to others. We

have got to give, in fairness to them—in fairness to Senator

Ashcroft—time to complete the paperwork for the Senate that is required and also give him time to respond to the questions that will

be asked.

Do you want to add anything to that, Orrin?

Senator HATCH. No. I think we should try to finish. If we can

move fast, we might be able to get this panel over by 6. Let’s try.

Chairman LEAHY. On the other hand, I would also note for the

record, everybody here on this panel has been waiting very patiently for a considerable period of time, and I am not going to have

anybody leave here feeling they did not have a chance to make

their statement because of a clock. They all have serious things to

say. You all have a strong reason for being here.

Mr. Mason, we will begin with you, sir.

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STATEMENT OF HON. DAVID C. MASON, CIRCUIT JUDGE, ST.

LOUIS, MISSOURI

Judge MASON. Thank you very much, Senator. A little brief commentary about my background, if you will. I grew up in Nashville,

Tennessee, in very difficult financial circumstances.

Senator KENNEDY. Can we have order, Mr. Chairman? It is

difficult— Chairman LEAHY. We have people going in and out. We are going

to have to ask those at the door—there is a lot of noise in the hall

that filters in. Mr. Mason, bring the microphone close to you. I will

start the clock back up. Go ahead.

Judge MASON. As I said, I wanted to give you a little bit about

my background because I want you to understand where I am coming from, Senator, with respect to my comments.

I grew up in Nashville, Tennessee, in North Nashville, under

very difficult circumstances. I lived in New York City ages 10 to

15, the last 2 years in South Ozone Park, New York, in Queens.

And it was while I was living there I attended John Adams High

School Annex. That area, South Ozone Park, and Ozone Park,

Queens, was experiencing a great deal of racial conflict at the time.

I and a friend of mine named Ricardo, walking home after school

1 day in 1971, were jumped on, quite frankly, by a white gang from

Ozone Park. We were beat very severely. There was an argument

between the gang leader and some other member of the gang about

whether I should be stabbed or just have my blank-blank-blank

butt sent home. And while their argument was going on, a police

car came up and they ran away, and I survived it.

I have seen racism in every respect that one can see it. I have

been the victim of it professionally, academically. I have been the

victim of it physically in terms of being beat. I have been the victim

of it verbally. I know it when I see it. I can smell it walking down

the street.

I am here for one reason and one reason alone: that I strongly

disagree with the implications that John D. Ashcroft is a racist. I

have spent a great deal of time with that man, and I will elaborate.

I graduated from the Washington University School of Law in

1983, and after that I went to work for the Missouri Attorney General’s office. At that time John Ashcroft was the Attorney General.

In my interview with him, we discussed various backgrounds as

young people, and I talked about my work in the political party,

the Democratic political party. In fact, Senator Kennedy, I mentioned to him an experience when you came to Vanderbilt in 1976

and you spoke, and I was only about 100 feet away, and the cheering and screaming crowd, and it was quite an exceptional speech

that you gave. And he talked about his background working as a

Republican in the Republican Party as a young person. And, frankly, I thought I wasn’t going to be hired after that. But I was hired,

and I began employment in that ocean of whiteness that was described as the Jefferson city office of the Missouri Attorney General.

I found in that office nothing but support, warmth, commitment.

I got good cases at all times. At no time was there ever any suggestion that I was anything less than an appropriate person to represent the interests of the State of Missouri in all Federal courts,

372

all jurisdictions we went to, up to and including a case that I was

able to work on for the U.S. Supreme Court that I had to give up

the oral argument on, but I drafted the brief on the merits.

The Senator and I formed a friendship based upon our mutual

commitment to our Lord and Savior. We had lots of discussions

about how I grew up, about how my grandmother raised me, and

he developed an affinity for her, would often write her letters and

send her copies of his albums, his gospel albums, where he would

sign things to her. And as time went on, I began to get a real feel

for this man and where his heart is.

When the subject of Martin Luther King Day came up, I was

there and I recall that he issued the executive order to establish

the first King Day rather than wait for the legislature to do it, because as you may recall, some of you, when the Congress passed

the holiday, they passed it at a time when the Missouri Legislature

may not have been able to have the first holiday contemporaneous

with it. So he passed the King holiday by executive order. He said

in doing so that he wanted his children to grow up in a State that

observed someone like Martin Luther King.

I saw this commitment carried through when I began to work in

the Republican Party. I worked heavily in both parties. I was a

Jimmy Carter person, worked for Bob Clement, and I went and did

some work in the Republican Party because of the friendship I developed with John Ashcroft. And what that work was, I wrote a diversity platform policy for the Missouri Republican Party. I took it

to Sedalia and all the small towns of Missouri. I took it to the Missouri Republican Party convention in 1988. It passed unanimously,

and it passed under Ashcroft’s watch. I noticed that it survived

after I became a judge in both 1992 and 1996.

There was some discussion about black participation under the

years when John Ashcroft was Governor. While I was an attorney,

after I left the Department of Corrections—I was their general

counsel for a while—he appointed me to the stadium authority. It

was the St. Louis Regional Athletic and Sports Complex Authority,

and it was our job to build a new stadium for our football team,

a $270 million project. Most of the votes on that commission were

controlled by John Ashcroft.

We made a commitment very early on that that program was

going to have substantial black participation at all levels. I chaired

the Committee that hired the large number of black lawyers that

worked on that project, members of the Mound City Bar. I watched

as accountants and people who sold stocks and securities and carpenters and the people engaged in construction management who

were of color, who were black, came into that project and that

project came in on time, under budget, with the highest level of minority participation of any project of its size in Missouri’s history.

That was under John Ashcroft’s watch. It is a monument of steel

and stone to his commitment to participation, and no amount of

rhetoric can dance around it. It was there, and I watched it happen. No one had to come to St. Louis and protest and stop the work

in order for that to happen.

So I say all that to simply say this to you, Senator, and I will

sum up because I see that red light. I will ask that this Senate

avoid the politics of vengeance in making this decision, to forget

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how angry any of you may be about things that Senator Ashcroft

may have done or said to people that you wanted to see appointed,

and show America that you are prepared to engage in the politics

of principle, that you will advise the President of the United States

how the Justice Department should be run, what the priorities

should be, how the law should be enforced, and upon giving that

advice, give your consent when you know that his nominee has

committed to you that he will enforce all the laws of this country

in equal measure, both spirit and letter. Give the President your

consent, and that is what I am here to say today.

Thank you.

Chairman LEAHY. Thank you, Judge. I appreciate your testimony.

Mr. Henderson, you are not stranger to this Committee. You

have appeared before us on many different issues, and we are always pleased to have you here. Go ahead, sir.

STATEMENT OF WADE HENDERSON, EXECUTIVE DIRECTOR,

LEADERSHIP CONFERENCE ON CIVIL RIGHTS, WASHINGTON, D.C.

Mr. HENDERSON. Thank you.

Chairman Leahy, Senator Hatch, and members of the Committee, I am Wade Henderson, executive director of the Leadership

Conference on Civil Rights. The Leadership Conference is the Nation’s oldest and most diverse coalition of civil and human rights

organizations. I appreciate the opportunity to present to you the

views of the Leadership Conference regarding the nomination of

former Senator John Ashcroft to be Attorney General of the United

States.

The Leadership Conference on Civil Rights strenuously opposes

the nomination of Senator Ashcroft to be Attorney General. I report

this judgment to you with great sadness. We did not seek this conflict, and we do not relish it. We are mindful of the calls for bipartisan cooperation that accompany the upcoming inauguration of

President-elect Bush, and we had looked forward to working with

the new President and his Attorney General on a wide array of

civil rights challenges facing the Nation. We still do.

However, the unexpected and disappointing selection of John

Ashcroft compels our current position. It is hard to conceive of an

Attorney General nominee with more immoderate beliefs and a

more abysmal civil rights record than former Senator Ashcroft. For

over 30 years in public life, first in Missouri and then in Washington, John Ashcroft has been on the wrong side of virtually every

issue of concern to the membership organizations of the Leadership

Conference. In reaching to the farthest degree of his political party

to make this selection, President-elect Bush has displayed indifference to the sensitivities of African-Americans, Hispanic Americans,

women, Americans with disabilities, gays and lesbians, the elderly,

and so many other Americans who are concerned about equal justice under law.

We acknowledge that a President is ordinarily entitled to deference in his choice of executive branch appointees, but the nomination of Senator Ashcroft to be Attorney General overcomes that

presumption for four reasons.

374

First, this appointment occurs in a political context unprecedented in our Nation’s history. The Ashcroft nomination was announced less than 2 weeks after the extraordinarily close Presidential elected ended in an abrupt and discomforting manner. It is

no secret that Americans were aggrieved by the circumstances of

the election, especially in the decisive State of Florida.

It is often said that Dr. Martin Luther King gave up his life so

that others would have the right to vote, but as we have learned

last November that even in the year 2000, some citizens are less

firmly enfranchised than others. Investigations by the NAACP, the

United States Commission on Civil Rights, and other groups have

exposed widespread suppression of the African-American vote in

Florida and disparities in election technology that systematically

disadvantage voters in less affluent neighborhoods.

In the wake of this harrowing election, we might have expected

the new President to reach out to the civil and human rights community by selecting, yes, a conservative, but an Attorney General

with nonpartisan statute and an unquestioned commitment to wellestablished principles of equal protection under law. And we might

have expected the new administration to turn its attention immediately to the electoral reforms needed to assure Americans that in

this democracy every vote counts. Instead, with the wounds of Florida still raw, the country finds itself in the midst of a divisive debate over the confirmation of John Ashcroft. Responsibility for this

new schism unfortunately does not rest with the civil rights community and those who oppose Senator Ashcroft.

I did not hear questioned in any way the legitimacy of the election results, but I must observe that the incoming President, we believe and say so quite respectfully, lacks an electoral mandate to

undertake the dramatic reconsideration of civil rights policy that

this nomination implies.

Second in my list of four items, the deference due to an executive

branch appointment does not end debate on this nomination because of the unique role of the Attorney General in our constitutional system.

As the Nation’s chief law enforcement officer, the Attorney General serves in a quasi-judicial function. He or she adjudicates legal

disputes within the executive branch and renders advisory constitutional opinions upon which the President and Congress rely.

He or she serves as the President’s chief advisor on judicial nominations, which for all of us is an important responsibility, including

nominations to the Supreme Court.

Finally, the Attorney General represents the United States in

the Supreme Court through the Solicitor General, an officer sometimes referred to as ‘‘the tenth Justice’’ because of the special reliance the Justices place on the Solicitor to advise the Court on the

state of the law.

Thus, the Attorney General is not merely the President’s agent,

not just another member of the President’s team. The Justice Department enjoys a tradition of independence and a unique constitutional standing that should lead the Senate to grant less deference

to the President’s choice for Attorney General than the deference

due to the President’s other Cabinet selections.

375

1Several LCCR organizations, including AARP, American Civil Liberties Union, Anti-Defamation League, American Jewish Committee, League of Women Voters, and the U.S. Catholic Conference, do not generally take positions supporting or opposing confirmation of federal officials

and for that reason have abstained from joining this endorsement.

Chairman Leahy and others have taken note of Senator

Ashcroft’s unyielding opposition to the nominations of BILl Lan Lee

as Assistant Attorney General for Civil Rights, Henry Foster and

David Satcher for Surgeon General, James Hormel to be Ambassador to Luxembourg. It might be argued that a Senator who did

not extend to President Clinton the deference due to executive

branch appointments is not entitled to the benefit of such deference

upon his own nomination. However, that is not our position. We

disputed what has been called now the ‘‘ashcroft standard’’ when

it was applied to Mr. Lee or Dr. Foster or Mr. Hormel, but we will

not apply it to Senator Ashcroft himself. Rather, we contend that

the skepticism with which Senator Ashcroft unfairly approached

these other nominations is, in fact, justified in the case of the Attorney General.

I notice that my red light is on, and so I need to summarize and

I will try to do so very briefly.

Let me say that there are numerous concerns that we have. Obviously, we have heard much testimony over the last 2 days from

Senator Ashcroft himself attesting to his willingness to enforce the

law, to respect the great traditions of the Department of Justice,

and, indeed, we were pleased to hear that news on that information. However, when you examine the record, the totality of the

record that Senator Ashcroft has established, first as Attorney General in St. Louis, the cases that have been mentioned here including the school desegregation case that has been so noted and other

concerns, we believe do, in fact, require us to oppose him as a compelling matter of principle, and we hope, indeed, that the Senate

will reject his nomination.

Thank you very much.

[The prepared statement of Mr. Henderson follows:]

STATEMENT OF WADE HENDERSON, EXECUTIVE DIRECTOR, LEADERSHIP CONFERENCE

ON CIVIL RIGHTS, WASHINGTON, DC

Chairman Leahy, Senator Hatch and members of the Committee: I am Wade Henderson, Executive Director of the Leadership Conference on Civil Rights (LCCR). I

appreciate the opportunity to present to you the views of the Leadership Conference

regarding the nomination of former Senator John Ashcroft to be Attorney General

of the United States.

The LCCR is the nation’s oldest and most diverse coalition of civil rights organizations. Founded in 1950 by Arnold Aronson, A. Philip Randolph, and Roy Wilkins,

the Leadership Conference seeks to further the goal of equality under law through

legislative advocacy and public education. The LCCR currently consists of over 180

organizations representing persons of color, women, children, organized labor, persons with disabilities, the elderly, gays and lesbians, and major religious groups. I

am privileged to represent the civil and human rights community in addressing the

Committee today. .

The Leadership Conference on Civil Rights strenuously opposes the nomination

of Senator Ashcroft to be Attorney General.1 I report this judgment to you with sadness. We did not seek this battle, and we do not relish it. We are mindful of the

calls for bipartisan cooperation that accompany the upcoming inauguration of President-elect Bush, and we had looked forward to working with the new President and

his Attorney General on the wide array of civil rights challenges facing the Nation.

We still do.

However, the unexpected and deeply disappointing selection of John Ashcroft compels our current position. It is hard to conceive of an Attorney General nominee with

376

more immoderate beliefs and a more abysmal civil rights record than former Senator Ashcroft. For over thirty years in public life, first in Missouri and then in

Washington, John Ashcroft has been on the wrong side of virtually every issue of

concern to the membership organizations of the Leadership Conference. In reaching

to the farthest extreme of his political party to make this selection, President-elect

Bush has displayed gross indifference to the sensitivities of African-Americans, Hispanic-Americans, women, Americans with disabilities, gays and lesbians, the elderly, and so many other minority citizens.

We acknowledge that a President is ordinarily entitled to deference in his choice

of executive branch appointees, but the nomination of Senator Ashcroft to be Attorney General overcomes that presumption for four reasons.

First, this appointment occurs in a political context unprecedented in our Nation’s history. The Ashcroft nomination was announced less than two weeks after the extraordinarily close presidential election ended in an abrupt and discomforting manner. It is no secret that Americans were aggrieved by the circumstances of the election, especially in the decisive state of Florida. It is often said that Dr. Martin Luther King, Jr. gave up his life so that others would have the right to vote, but as

we learned last November that, even in the year 2000, some citizens are less firmly

enfranchised than others. Investigations by the NAACP, the United States Commission on Civil Rights and other groups have exposed widespread suppression of the

African-American vote in Florida and disparities in election technology that systematically disadvantage voters in less affluent neighborhoods.

In the wake of this harrowing election, we might have expected the new President

to reach out to the civil and human rights community by selecting an Attorney General with nonpartisan stature and an unquestioned commitment to well-established

principles of equal protection under law. And we might have expected the new Administration to turn its attention immediately to the electoral reforms needed to assure Americans that in this democracy every vote counts. Instead, with the wounds

of Florida still raw, the country finds itself in the midst of a divisive debate over

the confirmation of John Ashcroft. Responsibility for this new schism rests solely

with the Presidentelect.

I do not here question the legitimacy of the election results. But I must observe— with deliberate understatement—that the incoming President lacks an electoral

mandate to undertake the dramatic reconsideration of civil rights policy that this

nomination implies.

Second, the deference due to an executive branch appointment does not end debate on this nomination because of the unique role of the Attorney General in our

constitutional system. As the nation’s chief law enforcement officer, the Attorney

General serves in a quasi judicial position. He or she adjudicates legal disputes

within the Executive Branch, and renders advisory constitutional opinions upon

which the President and the Congress rely. He or she serves as the President’s chief

advisor on judicial nominations, including nominations to the Supreme Court. Finally, the Attorney General represents the United States in the Supreme Court

through the Solicitor General, an officer sometimes referred to as ‘‘the 10 th Justice’’

because of the special reliance the Justices place on the Solicitor to advise the Court

on the state of the law.

Thus, the Attorney General is not merely the President’s agent, not just another

member of the President’s team. The Justice Department enjoys a tradition of independence and a unique constitutional standing that should lead the Senate to grant

less deference to the President’s choice for Attorney General than the deference due

to the President’s other Cabinet selections.

Chairman Leahy and others have taken note of Senator Ashcroft’s unyielding opposition to the nominations of Bill Lann Lee as Assistant Attorney General for Civil

Rights, Henry Foster and David Satcher for Surgeon General, James Hormel to be

Ambassador to Luxembourg and others.

It might be argued that a Senator who did not extend to President Clinton the

deference due to executive branch appointments is not entitled to the benefit of such

deference upon his own nomination. Because we disputed the ‘‘Ashcroft test’’ when

applied to Mr. Lee, Dr. Foster, Dr. Satcher and Mr. Hormel, we will not apply it

to Senator Ashcroft himself. Rather, we contend that the skepticism with which

Senator Ashcroft unfairly approached the Lee, Foster, Satcher and Hormel nominations is, in fact, justified in the case of a nominee to be Attorney General.

Third, whatever level of deference might otherwise buttress the President’s Cabinet selections cannot save this nomination because of Senator Ashcroft’s extreme

anti-civil rights record. This is a man whose public positions are so anathema to

the mission of the agency he has been chosen to lead that the Senate should conclude he cannot reasonably fulfill the solemn duties that would be entrusted to him

as Attorney General.

377

2Senate Constitution Subcommittee Hearing on ‘‘Judicial Activism’’, June 1997. 3The LCCR does not take a position on the issue of abortion or a ‘‘woman’s right to choose.’’

However, the LCCR is committed to the protection of existing constitutional rights, including

the right of privacy.

Senator Ashcroft pledges to uphold laws with which he disagrees. Even if that

were possible for a man of such passionate ideology, can there be any doubt that

he would work every minute of every day in office to shape those laws to more closely conform to his extreme vision?

I will highlight just a few ofthe untenable contradictions between the responsibilities Senator Ashcroft would assume at the Department of Justice and the radical

positions he has espoused as a public official: • The Attorney General is responsible for litigation on behalf of the United States

to implement the Constitutional promise of racial integration. Yet as Attorney General of Missouri, John Ashcroft led the dishonorable resistance to federal court orders seeking to integrate St. Louis and Kansas City public schools. More recently,

in hearings he chaired in this Committee in 1997, Senator Ashcroft appeared to

criticize the landmark case of Brown v. Board of Education as an example of unwarranted judicial activism.2

• The Attorney General is responsible for carrying out the Voting Rights Act of

1968. Yet as Governor of Missouri, John Ashcroft twice vetoed bills to expand voter

registration in St. Louis, vetoes widely understood to limit the voting strength of

predominantly Democratic minority neighborhoods.

The Attorney General serves as the principle advisor to the President on judicial

nominations. Yet Senator Ashcroft has opposed numerous judicial nominees on illegitimate grounds, and his tactics in engineering the Senate’s rejection of Missouri

Supreme Court Justice Ronnie White to be a United States District Court judge

were either inappropriately political or reveal a misguided understanding of our judicial system. By twisting the facts of a small handful of Justice White’s opinions,

Senator Ashcroft declared the nominee to be ‘‘pro-criminal’’ and ‘‘anti-death penalty,’’ and said Justice White, the only African-American to sit on the Missouri Supreme Court in its 175 year history, exhibited ‘‘a tremendous bent toward criminal

activity.’’ In fact, Justice White voted to uphold 41 of 59, or 70%, of the death sentences he reviewed while on the Court. According to the Washington Post, ‘‘Ashcroft

badly distorted White’s record at a time when he was looking for law-and-order

issues for his reelection campaign.’’ • The Attorney General is responsible for enforcement of the Freedom of Access

to Clinic Entrances Act and is in other respects the custodian of the constitutional

right to reproductive choice.3 Yet John Ashcroft has amassed a record of unmatched

hostility to Roe v. Wade. He has said that if he could pass one law it would be to

ban all abortions, even those necessitated by rape or incest, except as necessary to

save the life of the mother. He has argued that common forms of contraception constitute abortion and has opposed insurance coverage for contraception. He has a

record of antipathy on a range of other issues important to women as well. • Through the Solicitor General and other litigation arms of the Justice Department, the Attorney General is responsible for maintaining the separation of church

and state enshrined in the First Amendment. Yet Senator Ashcroft is a leading advocate of providing public funds to religious organizations without many of the current safeguards that assure compliance with constitutional protections. • The Attorney General is responsible for enforcing the Americans with Disabilities Act. Yet Senator Ashcroft has questioned the constitutionality of the ADA and

has sought to limit its scope and enforcement.

• The Attorney General exercises oversight over the Immigration and Naturalization Service (INS). We are concerned with several of the positions John Ashcroft has

taken in the area of immigration policy; and we are particularly concerned with the

fairness of future immigration policy under his oversight administration of the INS.

For example, Senator Ashcroft voted repeatedly in favor of legislation that would

eliminate welfare benefits, even to legal immigrants. However, he has taken this position to the extremes by supporting legislation that would have even denied some

federal benefits to naturalized United States citizens. This policy, which stands in

stark contrast to long-standing constitutional precedent regarding the rights of naturalized citizens, raises questions about his commitment to protecting the civil

rights of immigrants.

• In the wake of the Supreme Court’s decision in Romer v. Romer recognizing the

civil rights of homosexuals, gay and lesbian citizens look to the Justice Department

to enforce their rights and protect them from bigotry. Yet in 1996 John Ashcroft cast

a decisive vote against the Employment Non-Discrimination Act that would have

prohibited employment discrimination based on sexual orientation, passage of which

378

is a high priority for the LCCR. Not only did he vote against ENDA, but he spoke

in opposition to the legislation twice on the Senate floor. He used the opportunity

to voice some extreme views on the nature of sexual orientation, including that it

is a choice and could be changed—something clearly not supported by science or

leading medical and mental health authorities. • Currently, gay and lesbian employees at the Department of Justice and

throughout the federal government are protected by the President’s executive order

and other departmental policies. Given Ashcroft’s opposition to ENDA, how can we

be assured that these evenhanded policies will continue and be properly enforced? • He has also opposed a bipartisan bill to extend federal hate crimes laws to include anti-gay violence. Clearly, statistics show that the lesbian and gay community

should be protected by our nation’s hate crimes laws. While it is heartening that

John Ashcroft said yesterday that he believes the Hate Crimes Prevention Act is

constitutional, it makes his opposition to the bill last year even more puzzling. • Two federal hate crimes laws currently include sexual orientation, the Hate

Crimes Statistics Act and the Hate Crimes Sentencing Enhancement Act. In addition, some anti-bias programs in the Department of Justice help combat hate crimes

aimed at this community. Given Senator Ashcroft’s extreme views on sexual orientation, how can we be assured that he will continue to devote the necessary personnel

and resources to proper enforcement of these laws and programs? • Perhaps John Ashcroft’s bias showed itself most clearly during the nomination

of James Hormel, the openly gay businessman and philanthropist nominated by

President Clinton in October 1997 to serve as Ambassador to Luxembourg. Hormel

had served as a member of the U.S. Delegation to the 51 st UN Human Rights Commission in 1995 and had previously been unanimously approved by the Senate Alternate Representative of the U.S. delegation to the United Nations General Assembly.

John Ashcroft was one of two Senators who voted against Hormel’s nomination

in the Senate Foreign Relations Committee. He did so without attending the hearing or submitting questions or statements for the record. Hormel’s nomination was

voted out of committee, 16 to 2.

After the hearing, Hormel sent a letter requesting a meeting with Ashcroft to discuss his qualifications. In the letter Hormel raised a previous connection and appealed to Ashcroft as the former Dean of Admissions who had admitted Ashcroft to

the University of Chicago School of Law in 1964. Hormel followed up with three

telephone calls and had others call as well. Hormel never even received the courtesy

of a return phone call from Ashcroft’s staff. The following year Ashcroft 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’’. (The Boston Globe, June 24, 1998).

Ashcroft and his allies blocked Hormel’s nomination for more than a year because

he is gay. President Clinton exercised his constitutional power by appointing

Hormel during a congressional recess. Ambassador Hormel served with distinction

in Luxembourg for 18 months.

• Due to the groundbreaking work of Attorneys General such as Robert Kennedy,

Nicholas Katzenbach and Edward Levi, the Justice Department today is a symbol

of racial progress and healing. Yet over many years, John Ashcroft has displayed

astonishing disrespect to the concerns of minorities. Only two years ago he accepted

an honorary degree from Bob Jones University, an institution notorious for its history of segregation, its ban on inter-racial dating and its anti-Catholic and

homophobic traditions.

• Only three years ago he gave an interview to the neo-Confederacy racist publication ‘‘Southern Partisan’’ in which he said: ‘‘Your magazine helps set the record

straight You’ve got a heritage of doing that, of defending Southern patriots like

(Robert E.) Lee, (Stonewall) Jackson and (Jefferson) Davis. Traditionalists must do

more. I’ve got to do more. We’ve all got to stand up and speak in this respect, or

else we’ll be taught that these people were giving their lives, subscribing their sacred fortunes and their honor to some perverted agenda.’’

Fourth, the deference due to the President’s executive branch appointments evaporates when a nominee testifies at his confirmation hearing in a manner that is less

than candid. While there are many aspects of Senator Ashcroft’s testimony that are

subject to this criticism, the nominee’s testimony about the St. Louis desegregation

case veers especially far from the facts.

Despite Senator Ashcroft’s denials over the last two days, the State of Missouri

he represented as State Attorney General was found directly liable for illegal school

379

segregation in St. Louis, notwithstanding repetitive and unsuccessful appeals by the

nominee all the way to the U.S. Supreme Court. Despite the nominee’s claim that

he followed all court orders in the case, the federal judge presiding over the case

concluded that ‘‘the state has, as a matter of deliberate policy, decided to defy the

authority of the court.’’ And despite the nominee’s claim that he supported voluntary

desegregation, the fact is that Ashcroft publicly called the St. Louis desegregation

plan an ‘‘outrage against human decency.’’ At bottom, the Attorney General of the United States must have a demonstrated

commitment to the constitutional principles of due process and equal protection. The

Department of Justice must be perceived by the public as an instrument of justice,

and the person who leads the Department must be the embodiment of fairness and

impartiality. These are vital criteria in our heterogeneous democracy, especially in

the wake of the Florida debacle. By these measures, the Ashcroft nomination fails

utterly.

Simply put, John Ashcroft’s extreme views and public record on a range of issues

are irreconcilable with the duties of an Attorney General. His open hostility to the

very laws and policies he would be called on to enforce, laws indispensable to the

preservation of civil rights of all individuals in our society, leave the LCCR no choice

but to oppose his nomination.

We urge members of the Senate to vote against the confirmation of John Ashcroft

to this important position.

Chairman LEAHY. Thank you, Mr. Henderson.

I would note that both you and Judge Mason went over just

about exactly, almost to the second, the same amount of time.

Judge MASON. I am sorry, Mr. Chair.

Chairman LEAHY. It is a difficult thing, and you both have extremely important things to say. I mention that because I can see

the clock and Senator Hatch can see the clock. The rest cannot see

the exact time, and, unfortunately, it is the realities of a nomination hearing like this and trying to get so much in.

I suspect Pastor Rice would never want to have one of his sermons cut to 5 minutes, and I suspect your congregation wouldn’t

want you to.

Pastor, go ahead, please.

STATEMENT OF PASTOR B.T. RICE, NEW HORIZONS SEVENTH

DAY CHRISTIAN CHURCH, ST. LOUIS, MISSOURI

Rev. RICE. I think that may be debateable with some, but we will

do our best.

Mr. Chairman and Senator Hatch, my name is Pastor Booker T.

Rice, and I have been a pastor in St. Louis, Missouri, since 1979

and am presently with the New Horizons Seventh Day Christian

Church.

I am here today at the request of the St. Louis Clergy Coalition

believed to be the largest and oldest organization of African-American ministers in the State of Missouri, and its president, the Reverend Dr. Earl Nance, Jr., to register our strong opposition to John

Ashcroft’s confirmation as Attorney General of these United States

of America.

Our opposition centers primarily around, but not limited to, the

following reasons. First, Mr. Ashcroft made false and inflammatory

charges against Missouri Supreme Court Justice Ronnie White. Mr.

Ashcroft labeled this distinguished jurist as ‘‘pro-criminal, dangerous liberal’’ and the ‘‘most anti-capital punishment judge on the

Missouri court.’’ These labels fly in the face of the fact that in no

way reflects the record of this distinguished judge.

Second, we oppose Mr. Ashcroft because of his consistent opposition to restrictions on handgun ownership and consistent support

380

of what we call ‘‘packing,’’ or better known as carrying concealed

weapons.

Third, we oppose Mr. Ashcroft because of his insensitivity to the

African-American community in general and to the African-American community in Missouri in particular.

We also oppose Mr. Ashcroft’s extreme unyielding position on a

woman’s right to choose.

It is my intention here today to expand on several of these points

so that you may better understand why the appointment of John

Ashcroft would be divisive and insulting to our community.

To characterize Judge White as ‘‘pro-criminal’’ makes a false assertion that the respected judge is a supporter of criminal activities. We teach our children to set their sights on good role models,

then pattern their lifelong goals after those role models. Unfortunately, sometimes our children focus on what we perceive to be

wrong role models. So we attempt to refocus or redirect them to

those we believe the very best for our Missouri children. In our

community, Judge White has become such a role model.

Imagine, if you will, our disappointment to read, hear, or see in

media that a U.S. Senator has referred to this role model as ‘‘procriminal.’’ We know Justice White well and know that the facts do

not in any way, shape, form, or fashion resemble this distortion.

Mr. Ashcroft’s careless remarks were very damaging to our community and to the work we do with our children.

We in the faith community believe that sensitivity to minorities

is absolutely essential to our Nation’s chief law enforcement officer.

Mr. Ashcroft associating himself with and participating in organizations and institutions like the Southern Partisan magazine and

Bob Jones University demonstrates insensitivity as well as poor

judgment.

We felt deeply betrayed when Mr. Ashcroft’s statement in the

Southern Partisan magazine and his acceptance of an honorary degree from Bob Jones University, two institutions notorious for their

extreme racist statements and policies. Any affiliation with these

kinds of institutions demonstrates complete disregard for our community.

Mr. Ashcroft’s vocal and fervent opposition to the voluntary desegregation of Missouri schools was quality insensitivity. He was

more concerned with the cost of desegregation than with the interest of African-American children in our community. He never

apologized for segregation. He closed the door on negotiation, and

he strictly opposed desegregation.

We are deeply troubled by the strong stance that Mr. Ashcroft

took while Governor of Missouri to prevent independent voter registration drives in St. Louis. Opposing independent voter registration drives in St. Louis which is about 53-percent African-American

was more than insensitive. It was offensive.

The Senator’s record opposing restrictions on handguns ownership and supporting carrying concealed weapons shows a lack of

common concern for the safety of our community. Too many African-American youth die each year, the victim of senseless handgun

violence. We need less guns, not more guns. We need more control

of handguns, not more handguns.

381

Finally, to the issue of a woman’s right to choose, Mr. Ashcroft’s

position is apparently far, far to the right of even the most conservative views. Regarding a woman’s right to choose, Mr. Ashcroft

says no, under any circumstances, at any risk.

So, as we examine Mr. Ashcroft’s record, we must ask ourselves

whether we can count on the Justice Department under John

Ashcroft to be fair on civil rights, fair on discrimination, fair on racial profiling, fair on handguns, and fair on a woman’s right to

choose.

As a minister of the gospel and righteousness, speaking on behalf

of myself and my colleagues, we have come too far and we have

traveled too long to be turned back into the wilderness of indecision

and cohesion based on race, color, and national origin. We are not

in the mood to have to retrace our steps to be turned back into

Egypt where many have died in the struggle for civil rights and decent treatment.

As human beings, under our stars and stripes, shall we go back

to the wilderness of oppression, or shall we go forward into the full

reality of the American dream?

Chairman LEAHY. Thank you, Pastor.

Rev. RICE. Your vote will tell the world the direction in which

we, this great Nation, will go.

[The prepared statement of Rev. Rice follows:]

STATEMENT OF PASTOR B.T. RICE, NEW HORIZONS SEVENTH DAY CHRISTIAN CHURCH

ST. LOUIS, MISSOURI

My name is Pastor B.T. Rice. I have been a pastor in St. Louis, Missouri since

1979 and am presently the pastor of the New Horizon Seventh-day Christian

Church. I am also a member of the St. Louis Metropolitan Clergy Coalition, the

largest and oldest organization of African-American ministers in the state. I am

here today at the request of the St. Louis Metropolitan Clergy Coalition, its president, Earl Nance, Jr., and all of its other officers and members, to register our

strong opposition to Senator John Ashcroft’s confirmation as Attorney General of the

United States of America. Our opposition centers primarily around, but is not limited, to the following issues.

First, Mr. Ashcroft made false and inflammatory charges against Missouri Supreme Court Justice Ronnie White. Mr. Ashcroft labeled this distinguished jurist a

‘‘pro-criminal, dangerous liberal’’ and the ‘‘most anti-capital punishment judge on

the Missouri court.’’ These labels fly in the face of the facts and in no way reflect

the record of this distinguished Missouri Supreme Court Justice.

Second, we oppose Mr. Ashcroft because of his constant opposition to restrictions

on hand gun ownership and consistent support for ‘‘packing’’ or carrying concealed

weapons.

We also oppose Mr. Ashcroft because of his insensitivity to the AfricanAmerican

community in general, and the African-American community of Missouri in particular.

We also oppose Mr. Ashcroft’s extremely unyielding positions on a woman’s right

to choose.

These are our primary reasons for opposition and it is my intention here today

to expand on several of these points so that you may better understand why the

appointment of John Ashcroft would be divisive and insulting to our community.

To characterize Justice White as ‘‘pro-criminal’’ makes the false assertion that the

respected Missouri Justice is a supporter of criminal activities. We teach our children to set their sights on good role models, then pattern their life long goals after

their role models.

Unfortunately, sometimes our children focus on what we perceive to be wrong role

models, so we attempt to refocus or redirect them to those we believe to be the very

best for Missouri children. In our community, Justice White has become such a role

model.

Imagine if you will our disappointment to read, hear, and see in media that the

United States Senator had referred to this role model as pro-criminal. We know JusVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00395 Fmt 6601 Sfmt 6621 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
382

tice White well and know that the facts do not in any way, shape, or form resemble

this distortion. Mr. Ashcroft’s careless remarks were very damaging to our community and to the work we do with our children.

We in the faith community believe that sensitivity to minorities is absolutely essential for our nation’s chief law enforcement officer. Mr. Ashcroft’s association with,

and participation in, organizations and institutions like the Southern Partisan Magazine and Bob Jones University demonstrate insensitivity, as well as poor judgment.

The African-American community in Missouri felt deeply betrayed by Mr. Ashcroft’s

statements in the Southern Partisan Magazine, and his acceptance of an honorary

degree from Bob Jones University, two institutions notorious for their racist statements and policies. We believe that any affiliation with these kinds of institutions

demonstrates complete lack of sensitivity and disregard for our community.

Mr. Ashcroft’s vocal opposition to the voluntary plan to desegregate Missouri’s

schools and the fervent manner with which he blocked voluntary desegregation were

equally insensitive. Mr. Ashcroft was more concerned with the costs of desegregation

than the interests of African-American children in our community. He never apologized for segregation; he closed the door to negotiations; and he strictly opposed desegregation.

We are also deeply troubled by the strong stance that Mr. Ashcroft took while governor of Missouri to prevent independent voter registration drives in St. Louis. Independent voter registration drives were a common practice throughout other parts of

the state, including St Louis County, which is predominately white.

They worked well in St. Louis County and could have worked well in the city also.

Opposing independent voter registration drives in the city of St. Louis, which is 53%

African-American, was more than insensitive. It was offensive.

The Senator’s record opposing restrictions on hand gun ownership and instead

supporting the carrying of concealed weapons shows a lack of common concern for

safe streets, safe neighborhoods, and safe communities. Too many of our AfricanAmerican youth die each year, the victims of senseless hand gun violence. We need

less guns, not more guns. We need more control of hand guns, not more hand guns.

Finally, to the issue of a woman’s right to choose, Mr. Ashcroft’s position is apparently far, far, to the right of even the most conservative views. Regarding a woman’s

right to choose, Mr. Ashcroft says, ‘‘no, under any circumstance, no at any risk, no.

It makes no difference what, No!′′

So, as we examine Mr. Ashcroft’s history on a number of key issues, we must ask

ourselves whether we can count on the Justice Department under John Ashcroft to

be fair on civil rights, fair on discrimination, fair on racial profiling, fair on hand

gun control, fair on a woman’s right to choose. We think not.

Our concern is that Mr. Ashcroft will do everything in his power to reshape this

great Constitution of ours to reflect his personal sense of what is right and what

is wrong. We fear that he will exercise his duties as Attorney General with the same

insensitivity he brought to his duties as Governor and Attorney General of Missouri.

We did not support him then, and cannot support him now. His record on so many

issues of grave importance to African-Americans was harmful to our community and

caused division in our state. We believe he will bring the same division and harm

to our country.

John Ashcroft has every right to hold strong views on civil rights and other issues,

but he should not be Attorney General of the United States.

As a minister of righteousness, speaking on behalf of myself and my colleagues,

we have come too far and traveled too long to be turned back into the wilderness

of indecision and coercion based on race, color or national origin. We are not in the

mood of having to retrace our steps to be turned back into Egypt where many have

died in the struggle for civil rights and decent treatment.

As human beings under our stars and stripes shall we go back to the wilderness

of oppression or shall we go forward into the full reality of the American dream?

Your vote will tell the world the direction in which this—our great county—will go.

Chairman LEAHY. Thank you, Pastor.

Rev. RICE. And I didn’t preach.

Chairman LEAHY. No, no. Listen, I like preaching. I always

worry when I am at church and I don’t hear a sermon that gets

me going.

Mr. Woodson, Pastor Rice takes a different position than you do.

Mr. WOODSON. Yes.

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Chairman LEAHY. He went a bit over, and I will give you the

same amount of time. I want to be as fair as possible. I will give

you the same amount of time over, but, again, please try to—

Mr. WOODSON. I will.

Chairman LEAHY. Thank you.

STATEMENT OF ROBERT L. WOODSON, SR., PRESIDENT, NATIONAL CENTER FOR NEIGHBORHOOD ENTERPRISE, WASHINGTON, D.C.

Mr. WOODSON. Thank you.

I am Robert L. Woodson, Sr., president and founder for the National Center for Neighborhood Enterprise, a national non-profit

that assists low-income neighborhood leaders in 39 States, and I

am here today to represent a federation of grass-roots, faith-based

organizations that operate throughout this Nation, but I am also

a veteran of the civil rights movement, having served and organized demonstrations in the 1960’s and 5 years with the National

Urban League.

I am here today, first of all, to voice strong support for Senator

Ashcroft as Attorney General. Let me just destroy a myth. There

are those who tend to believe that the black community speaks in

one voice. We are not monolithic. A lot of people talk about diversity except when it comes to expression of independent political

views, and so I challenge my colleagues who come here before you

and say the black community believes this, the black community

wants this. We do not speak with a single voice.

It is a prophetic irony that we meet at this time when 4 years

ago, a 12-year-old boy named Daryl Hall was snatched from a car

on his way home, just 20 minutes from here, in an area called Simple City, Benning Terrace Public Housing. He was assassinated as

a consequence of a conflict between two warring factions, the Avenue and the Circle. Fifty-five young black men died in a fivesquare-block area in 2 years as a consequence of this conflict. The

police couldn’t make a difference. Social services couldn’t make an

impact. But the National Center working with faith-based organizations, the Alliance of Concerned Men, went up into this area

where people were huddled in their homes with refrigerators next

to doors and brought these warring factions, the leadership, 16 of

them, to my office downtown. They were searched. They had bulletproof vests. We started with prayer, and we negotiated a settlement, the first truce, and as a consequence of this negotiation, we

put these young people to work, thanks to the Housing Authority

and David Gilmore, and rebuilding their community, taking out the

graffiti.

I am pleased to report after 4 years of these faith-based organizations working in Benning Terrace, one of the most dangerous areas

of the city, we have not had a crew-related killing in 4 years as a

consequence.

I have a young man here. Stand up, Vernon.

[Mr. Wise stood.]

Mr. WOODSON. Vernon Wise, who is a young man, his heart had

been transformed as a consequence.

Thank you.

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Vernon in that war was shot 10 times at point-blank range with

a .45. He lost three of his ribs, his spleen, and a kidney, and Vernon spent time in prison, six cells down from his father. To all conventional wisdom, he was Godless, hopeless, and useless, but we

reached out to him in a spirit of Godly love and now Vernon is

trained as a telecommunications specialist, having gone to school,

and is now a responsible person.

Vernon is one of 100,000 young people like him whose lives have

been transformed through these faith-based organizations, Teen

Challenge, Victory Temple, who exist all over this Nation. Senator

John Ashcroft is the only person who from the time he came into

this body reached out to us. He is on the board of Teen Challenge.

He has raised money for them. He sponsored the charitable choice

legislation that will stop the Government from trying to close them

down because they don’t have trained professionals as drug counselors.

We have an 80-percent success rate of these faith-based organi- zations with a $60-a-day cost when the conventional therapeutically secular programs cost $600 a day with a 6-to–10-percent success rate. Senator Ashcroft has gone with us. He has fought with

us, and this legislation would help us.

As a consequence, the day before yesterday, 150 black and Hispanic transformed drug addicts got on busses from all over this Nation and came here to support him. Fifty of them came from Victory Temple, throughout the State of Texas, spent 2 days on a

Greyhound bus at their own expense to come here to voice strong

support for Senator Ashcroft.

So let me say to you that a criminal personality is one who is

very discerning because you have to be in order to survive. They

are not Democrats. They are not Republicans. They are not conservatives or liberals, but they know the real thing when they see

it, and they came here to voice strong support for Senator Ashcroft.

Let me say to those of you who adhere to charges of racism. As

a civil rights veteran, I reject this notion that we should soil the

rich legacy of the civil rights movement by using it as a sword

against those with whom we have political disagreements and as

a shield to protect those who happen to agree with us who are even

criminals. You can be a pedophile, you can be a sex abuser, and

you can be a thief and still score A on the NAACP’s credit card,

and as long as you hold the right political views.

I have as part of my testimony an article that I published in The

Wall Street Journal that gives names of people that have been supported for reelection to office who have committed these crimes. So

I am saying to you that we hope that you will vote this man in

knowing that the black community does not speak with a single

voice and that we strongly support Senator Ashcroft.

I will be pleased to take questions or elaborate further on the

reasons why we support this very noble man. I don’t know why

righteousness has to be an exemption for public service in America.

[The prepared statement of Mr. Woodson follows:]

STATEMENT BY ROBERT L. WOODSON, SR., PRESIDENT, NATIONAL CENTER FOR

NEIGHBORHOOD ENTERPRISE

I am here to vigorously support the nomination of Senator John Ashcroft for U.S.

Attorney General, and to explain to you the reasons why more than 150 leaders of

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faithbased organizations across the country came here Tuesday at their own expense to show their support for Senator Ashcroft. Most of these leaders, for the

record, are minority and low-income.

There is clear evidence that the most critical problems of our society are not

caused by poverty or racism, and that they cannot be alleviated by remedies that

assume these causes. General trends among young people in our nation’s suburban

communities—rising rates of gang activity, youth crime, and adolescent substance

abuse, make this very clear. We are facing a nationwide crisis—a spiritual and

moral freefall—which has brought fear and uncertainty throughout America. Fiftythree percent of respondents in a recent USA today/CNN/Gallup poll said that the

nation’s moral problems concerned them more than economic problems, while 39

percent rated the state of moral values in our nation as ‘‘very weak.’’ The good news is that solutions to this crisis do exist. However, if we are to forge

an effective strategy of moral and spiritual revitalization, we must move the focus

of the debate beyond racial and economic considerations. To develop solutions for

the crises we now face, we must go beyond the level of education, jobs, housing, or

racial reconciliation. These strategies will never be able to address the root of a crisis that is essentially spiritual and moral. If we are to identify effective remedies,

we must be willing to look to a new source for solutions.

Over the past 20 years, the National Center for Neighborhood Enterprise has

worked with grassroots, faith-based organizations within the nation’s inner cities

that have transformed the homeless into homeowners, hopeless addicts into productive citizens, and violent youth predators into peacekeepers. Through the power of

God they have worked these miracles without tv control, gun control, but through

self-control. Some examples of these God-centered transformation stations are as follows:

Teen Challenge, with more than 150 chapters in the U.S. and abroad; Victory Fellowship, with 65 chapters in the U.S. and Latin America; and Youth Challenge, with

some 50 locations in the U.S. and internationally, are faith-based substance abuse

programs with very successful track records in freeing drug and alcoholic addicts

from their addictions.

Victory Fellowship, for instance, founded in San Antonio almost 30 years ago by

Pastor Freddie Garcia, has a success rate of more than 70% of those that complete

its program. Victory finds its success in the rehabilitation of heroin and other severe

addicts through a program that is composed of Bible study, prayer, chapel, one-onone counseling—mostly by others who have conquered their own addiction—and visiting former haunts to evangelize old friends and drug colleagues as well as to let

them know of the success of the program. The program leads addicts through three

attitudinal changes: Regeneration, Responsibility, and Reconciliation. Without these

critical phases, Pastor Garcia says, the program would have the same results as

those of secular programs. The program normally takes 18 months, during which

time the individual changes from being a ‘‘taker’’ to a ‘‘giver.’’ Despite this success, faith-based programs are continually under assault by the

professional poverty industry. In fact, several states have tried to shut down these

organizations with the charge that they do not have trained professionals as counselors, and therefore do not meet the states requirement. To focus attention on this

issue, in 1995 the National Center for Neighborhood Enterprise led a demonstration

in Texas against the Texas Commission on Alcohol and Drug Abuse (TCADA), which

was trying to close down a very effective Teen Challenge chapter there. When the

situation became known to then Governor Bush, he responded by initiating legislation to exempt faith-based substance abuse programs from regulations by the state.

We brought this issue to Senator Ashcroft, who has long been a champion of faithbased programs. He immediately responded and has worked tirelessly with us when

there were no headlines to be made and no political capital to be gained. He fashioned the Charitable Choice provision in 1996, and it was passed overwhelmingly

by the Congress in the Welfare Reform legislation. Many times he has traveled to

different parts of the country at great inconvenience to himself, to address grassroots groups that are trying to solve the problems of their own neighborhoods. And

he has persuaded many other members of both parties to do the same.

I would like to read from a letter Senator Ashcroft wrote for one of our publications about why he initiated the Charitable Choice legislation:

In the past, many successful faith-based organizations have not participated in government programs for fear of having to compromise their religious integrity or

of being hobbled by excessive government regulation and intrusion. The confusing array of legal precedents has often led government officials to conclude mistakenly that constitutional law requires that faith-based organizations be excluded from the mix of private service providers, or that entities accepting government funds must forego their religious character.

386

One of my goals in proposing the Charitable Choice provision was to encourage

faith-based organizations to expand their involvement in the welfare reform effort by providing assurances that their religious integrity would be protected.

The Charitable Choice provision uses U.S. Supreme Court case precedents to

clarify what is constitutionally permissible when states and local governments

cooperate with the religious and charitable sector of society. The provision protects the rights of faith-based providers as well as the religious liberty of the

individuals they may serve.

These are not the words of a zealot or a person who would place his personal opinions above the rule of law. These are the words of a man who is a servant of the

law, and who has a deep concern for those in need.

That is why over 150 grassroots leaders pooled their resources to travel here this

week, 50 of them riding in a bus for two days, with a return trip of two more days—

just to come and demonstrate their support. Ninety-percent of those who came are

transformed drug addicts, thieves, and prostitutes—people that society has given up

on. But Senator Ashcroft, since he has been the in Senate, has worked tirelessly on

their behalf.

Let me address the really outrageous accusations that Senator Ashcroft is a racist. As a former civil rights advocate, who led demonstrations in the 60’s, a person

who has personally felt the sting of racism in the three years I served in the south,

who went to jail three times, I can tell you that we should not permit false accusations of racism to trump character. Members of the press and public are quick to

attack bigotry. But we should also reject bigotry coming from those who style themselves as defenders of justice, who use race as a spear against those with whom they

disagree, and a shield against personal responsibility.

Senator Ashcroft is not a racist, and others who have testified have articulated

his record in supporting minorities. While governor of Missouri, he appointed the

first black federal judge. Three members of his cabinet were black. He fought to

save Lincoln University and approved making Martin Luther King’s birthday a legal

holiday. He voted yes for 26 out of 28 blacks nominated by President Clinton for

federal judgeships.

Some attack Senator John Ashcroft on the grounds that he will be ‘‘bad’’ for black

issues, like affirmative action and abortion. But it is a fallacious assumption that

blacks are monolithic in their opinions. Seldom is it reported that 47% of blacks oppose race-based affirmative action. Seventy-four percent of those with school-age

children favor school choice. A large percentage of blacks oppose abortion. And many

do favor the death penalty. The most important thing to say, however, is that he

is a man of integrity who will uphold the law.

His Charitable Choice legislation alone may do more to help blacks solve the real

problems in their own communities than anything else government has done.

The most important thing in this day and age is to have leaders who are morally

and spiritually sound, especially in public offices like the Attorney General. In this

post-civil rights era, we need moral and spiritual leadership as never before. And

John Ashcroft passes the test.

Chairman LEAHY. Thank you, Mr. Woodson. I appreciate that.

Mr. Taylor, go ahead.

STATEMENT OF WILLIAM L. TAYLOR, ESQ., ATTORNEY,

CITIZENS’ COMMISSION ON CIVIL RIGHTS, WASHINGTON, D.C.

Mr. TAYLOR. Thank you.

Mr. Chairman, Senator Hatch, members of the Committee, I appreciate the opportunity to be here and present testimony.

I have been a civil rights lawyer for more than 45 years, beginning as a staff attorney for Thurgood Marshall at the NAACP

Legal Defense Fund and later serving as General Counsel and then

Staff Director of the United States Commission on Civil Rights during the 1960’s.

You know I am well affiliated, but my testimony today is solely

on my own behalf. I am the lead counsel for a class, not a single,

a class of African-American and white students in the major school

case in St. Louis. I have served as counsel for more than 20 years,

and for much of that time, John Ashcroft was a lawyer and defendVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00400 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
387

ant in the case, first as Missouri Attorney General and later as

Governor.

I have fought seriously since this nomination about whether Mr.

Ashcroft’s conduct in the St. Louis case was simply that of a lawyer

vigorously defending the interest of the State or whether some of

his actions went over the line of strong advocacy and reflect on his

qualifications to serve as Attorney General of the United States.

My conclusion is that the latter is the case.

I believe that in his tenure as Attorney General, Mr. Ashcroft

used the court system to delay and obstruct the development and

implementation of a desegregation settlement that was agreed to

by all major parties except the State. In so doing, he sought to prevent measures that were a major step toward racial reconciliation

in an area where there had been much conflict and to thwart a

remedy that ultimately proved to be a very important vehicle for

educational progress.

Worse yet, Mr. Ashcroft sought to exploit fears and misconceptions about desegregation as a means of gaining higher political office, thereby deepening racial divisions in the St. Louis area. Taken

together, I believe these actions raise the most serious questions

about whether Mr. Ashcroft is prepared to serve all the people as

Attorney General and to enforce the civil rights laws fairly and impartially. I realize these are serious charges, but I am prepared to

document them.

I assume my full statement will be in the record.

Chairman LEAHY. Of course.

Mr. TAYLOR. I would like to concentrate the remainder of my

time on statements Mr. Ashcroft has made as a witness here. I will

skip over statements that he made about whether the State was a

party to the case at the time adjudications were made about its responsibility, and I will skip over his allegations that the State did

nothing wrong. I think, Mr. Chairman, he may have taken some

of those back in conversation with you.

I want to focus on the question of whether it is trust, as Mr.

Ashcroft claimed, that in all cases where the court made an order,

‘‘I followed the order both as Attorney General and Governor,’’ and

that, he did not repudiate, he, in fact, repeated. Nothing could be

further from the truth.

One key period came in 1980 after the Court of Appeals asked

the parties to explore the possibility of an voluntary inter-district

remedy, and Judge Meredith entered an order to begin the process.

The State resisted the process at every turn.

In March 1981, Judge Hungate, who had taken over the case,

found that, ‘‘The State as a matter of deliberate policy decided to

defy the authority of this court,’’ and that the State had resorted

to ‘‘extraordinary machinations in an effort to resist dismantling

the dual system.’’ These findings came after a lengthy recitation of

numerous occasions on which the State had sought to delay and

avoid court orders. The court considered holding the State in contempt, but decided to make one more effort to issue an order that

might result in State compliance. In doing so, it said, ‘‘To grant the

State defendants a stay would permit the State to escape triumphantly from the consequences of its defiance of Judge Meredith’s

court orders. The Court would be doing much less than its duty if

388

State defendants were not held accountable for their actions,’’ and

I have included this court order as an appendix to my testimony.

The resistance of John Ashcroft became quite personal. As I detail in my testimony, in July 1981, the court appointed Susan

Uchitelle as an employee of the State Department of Education as

interim director of the Committee charged with developing a voluntary plan. The State objected strenuously to Ms. Uchitelle’s appointment and filed formal objections with the court which were

later rejected.

At the same time, the State sought to pressure Ms. Uchitelle to

resign from the assignment. A contemporaneous law kept by Ms.

Uchitelle reveals that a State education official relayed to her a

threat from Mr. Ashcroft that if she chose to remain in the job, she

would have to resign her State job, and if she did, she would ‘‘never

receive another State appointment to a job from him,’’ delaying tactics. It did not cease. Indeed, after our settlement with 22 suburban

districts was reached and the State appealed again and again and

continued to resist the orders, even after its appeals were exhausted, the district court noted that the State had delayed implementation of a voluntary plan through opposition and repeated appeals and concluded that were it not for the State and its feckless

appeals, perhaps none of us would be here at this time.

I am almost done.

These tactics continued through Mr. Ashcroft’s tenure as Governor. Judge Stephen Limbaugh, a Reagan appointee to the bench,

referred to the conduct by the State that included factual inaccuracies, statistical distortions, and insipid remarks—that is a quote—

regarding the Court’s handling of the case. He warned the State to

desist in filing further motions grounded in rumor and unsubstantiated allegations of wrongdoing and added that the State had even

resorted to veil threats toward the court to try to thwart implementation of the remedy.

Chairman LEAHY. Thank you.

Mr. TAYLOR. In summary—

Chairman LEAHY. Thank you, Mr. Taylor.

Mr. TAYLOR.—Contrary to Mr. Ashcroft’s claim of review to follow court orders, we have a—

Chairman LEAHY. Mr. Taylor, everybody has had exactly the

same amount of time as this point, both for and against Senator

Ashcroft.

[The prepared statement and attachments of Mr. Taylor follow:]

STATEMENT OF WILLIAM L. TAYLOR, ESQ., CITIZENS’ COMMISSION ON CIVIL RIGHTS,

WASHINGTON, DC

Mr. Chairman and members of the Committee:

I appreciate the invitation of this Committee to submit written testimony concerning the nomination of John Ashcroft to be Attorney General of the United States.

I have been a civil rights lawyer for 45 years, beginning as a staff attorney for

Thurgood Marshall at the NAACP Legal Defense and Education Fund in 1954 and

later serving as General Counsel and then Staff Director at the U.S. Commission

on Civil Rights in the 1960s.

While I currently serve as Vice Chair of the Leadership Conference on Civil

Rights and Acting Chair of the Citizens’ Commission on Civil Rights, my testimony

today is solely on my own behalf. I am lead counsel for a class of African-American

parents and children in a major school case in St. Louis. I have served in that capacity for more than 20 years and for much of that time John Ashcroft was a lawyer

389

and defendant in that case, first as Missouri State Attorney General and later as

Governor.

I have thought seriously since Mr. Ashcroft’s nomination about whether his conduct in the St. Louis case was simply that of a lawyer vigorously defending the interests of the State or whether some of his actions went over the line of strong advocacy and reflect on his qualifications to serve as Attorney General of the United

States. My conclusion is that the latter is the case. I believe that in his tenure as

State Attorney General, Mr. Ashcroft used the court system to delay and obstruct

the implementation of a desegregation settlement that was agreed to by all major

parties except the State. In doing so, Mr. Ashcroft sought to prevent measures that

were a major step toward racial reconciliation in an area where there had been

much conflict and to thwart a remedy that ultimately proved to be a very important

vehicle for educational progress. Worse yet, Mr. Ashcroft sought to exploit fears and

misconceptions about desegregation as a means of gaining higher political office,

thereby deepening racial divisions in the St. Louis area. Taken together, I believe

that these actions raise the most serious questions about whether Mr. Ashcroft is

prepared to serve all the people as Attorney General and to enforce the civil rights

laws fairly and impartially. I realize these are serious charges, but I am prepared

to document them.

THE LIDDELL CASE—1978–1984

The St. Louis school case (Liddeil began in the I 970s with a suit designed to desegregate the city schools. The federal courts ultimately found that both the State

and the city school board were responsible for maintaining school segregation for

many years following the Supreme Court’s landmark decision in Brown v. Board of

Education. 347 U.S. 483 (1984), and that they acted in violation of the constitutional

rights of the plaintiff school children. Liddell v. Missouri, 731 F.2d 1284, 1302–03

(8th Cir.) (en banc), cert. denied, 469 U.S. 816 (1984). Indeed, the District Court held

that the State had previously ‘‘mandated school segregation and that it ‘‘never took

any effective steps to dismantle the dual system it had previously compelled.’’

Therefore, the court concluded that the State was a ‘‘primary constitutional wrongdoer with respect to the segregated conditions in the St. Louis schools.’’ Liddell v.

Board of Education, 491 F. Supp. 351, 357, 359–60, aff’d 667 F.2d 642 (8th cir.), cert.

denied 454 U.S. 1081 (1981). As was his prerogative, Attorney General Ashcroft took

appeals to the Eighth Circuit and the Supreme Court and lost.

Mr. Ashcroft’s opposition did not stop there. I became involved in the case in the

fall of 1980 when I filed an amended complaint on behalf of the plaintiff class and

the NAACP seeking to extend the relief to 22 suburban school districts in St. Louis

County that had also contributed to segregation. The City Board of Education filed

a similar amended complaint. In part, these complaints were a response to a suggestion by the Court of Appeals that the City Board and the State seek the cooperation

of suburban districts to develop a voluntary, cooperative plan in which students

could choose to transfer between districts to enhance desegregation. When the District Court entered this suggestion as an order to explore the possibilities of interdistrict cooperation, the City Board and the suburbs promptly began to discuss a

voluntary plan. But Mr. Ashcroft immediately announced that he would appeal even

the provision calling only for a planning process. Mr. Ashcroft asked the Court of

Appeals to delay the order while the appeal was being heard. He lost in the Court

of Appeals and unsuccessfully sought a stay in the Supreme Court. It was also reported in 1980 by a court-appointed expert that State education officials appeared

prepared to help develop a voluntary plan but that they were ‘‘forbidden to do anything’’ because the Attorney General ‘‘was running the show’’ and it was ‘‘a legal

issue.’’ Deposition of court appointed expert Gary Orfield at 128–134. The St. Louis

Post Dispatch concluded that Mr. Ashcroft’s actions ‘‘nearly wrecked ‘‘the initial city

suburban meeting efforts. (June 20, 1980.)

These tactics continued through 1981 with the State failing to comply with Court

orders for the submission of plans and filing numerous motions for delay in the

Court of Appeals. In March of 1981, the District judge issued a blistering order

threatening to hold the state in contempt if it failed to submit a voluntary plan in

60 days. Citing the State’s ‘‘continual delay and failure to comply’’ the Court said

that it could only conclude that ‘‘the state has, as a matter of deliberate policy, decided to defy the authority of this Court’’ St. Louis Post-Dispatch, March 5, 1981.

These matters are discussed in more detail in Appendix 1; to my testimony, an account prepared by lawyers at People for the American Way and reviewed by me for

accuracy.

One other incident that occurred in 1981 is telling. In July, 1981, the Court appointed Susan Uchitelle, an employee of the Missouri Department of Education, as

390

interim director a coordinating committee to devise a voluntary plan. The State objected strenuously to Ms. Uchitelle’s appointment and tiled formal objections with

the Court on July 9, 1981 which were later rejected. Contemporaneously, the State

sought to exercise pressure on Ms. Uchitelle to resign from this assignment. A

contetemporaneous log kept by Ms. Uchitelle reveals that a state education official

relayed to her a threat from Mr. Ashcroft that if she chose to remain in the job she

would have to resign her state job and if she did that she ‘‘would never receive another appointment or job from them.’’ This, in my judgment, is evidence of a gross

threat of retaliation by Mr. Ashcroft against a dedicated state employee who only

sought to aid the Court and the parties in carrying out a voluntary remedial plan.

See Appendix 2 to my testimony. Fortunately, Ms. Uchitelle did not bow to these

threats and continued to serve for many years as the coordinator of the voluntary

plan, although the State continued to level criticism at her.

Late in 1982, the Court brought the parties together under the supervision of a

courtappointed mediator to explore the possibilities of settlement. I believed that we

had a strong case, with evidence for example that the State and suburban school

districts had maintained segregation by busing black children living in suburban

areas into the city to avoid desegregation of suburban schools. But I and my colleagues actively sought settlement, realizing the value of prompt relief and avoidance of many years of contentious litigation. The 22 suburban districts agreed on

the value of a settlement as well and many showed real courage in doing so because

they faced the fears and opposition of many of their constituents. And so, after

tough negotiations we reached an agreement that allowed volunteering AfricanAmerican students from the city to enroll in any of the 22 districts until the black

enrollment of the district reached 25% and volunteering white students in the 22

districts to enroll in city magnet schools. The agreement also provided for improvements in the educational program in the low performing city schools that would continue to remain racially isolated.

All of the parties agreed to the settlement except the State of Missouri. (Under

the Reagan Administration, the Justice Department, which was an intervening

party, took no position at that point although it was later persuaded by Mr. Ashcroft

who made repeated visits to Washington to join in his appeal). The Assistant Attorney General who represented the State in the negotiations had taken a positive approach but Mr. Ashcroft’s decision was to oppose the settlement. Mr. Ashcroft opposed all aspects of the settlement in the District Court and then appealed the decision to the Court of Appeals which, sitting en bane, rejected his positions almost

in their entirety. Liddell, supra, 731 F.2d 1294. He then unsuccessfully sought in

1984 review in the Supreme Court. It is important to note, that Mr. Ashcroft opposed not only desegregation but the portions of the agreement calling for improvements in black schools, consistent with the Supreme Court’s unanimous decision in

Milken v. Bradley, 433 U.S. 267 (1978). In an undated press release, issued at the

time he was petitioning the Supreme Court, Ashcroft said ‘‘the requirements for

widespread improvements throughout the city school system. . .are simply a shopping list compiled by the plaintiffs and the City Board’’.

Even after his appeals had been rejected. Mr. Ashcroft continued to obstruct implementation of the settlement. His tactics led the District judge to conclude at the

end of 1984:

‘‘If it were not for the State of Missouri and its feckless appeals, perhaps none of

us would be here at this time. Further litigation to compel the State to meet

its responsibilities was unquestionably necessary. The compromise settlement

was made possible through the cooperation of all parties but the State, which,

through opposition and repeated appeals, has delayed implementation of a remedial plan designed to remove the last remaining vestiges of school segregation for which the State, through its constitution and statutes, remains responsible. It has continued to litigate what the other parties sought to settle, thereby increasing litigation costs for which it now seeks to avoid responsibility.’’

Order H(3550) at 17, 25. December 28, 1984 Relevant portions of the Order are

attached as Exhibit 3 to my testimony.

This, as previously indicated, was hardly the first time the Court found it necessary to ruhuke the State and its Attorney General. Earlier the Court had found

that ‘‘the State has, as a matter of deliberate policy, decided to defy the authority

of [this] Court’’ and that the State had resorted to ‘‘extraordinary machinations’’ in

an effort to resist dismantling the dual system. Order H(11) 81 at 6.

THE 1984 GUBERNATORIAL CAMPAIGN

In 1984 as he was fighting the voluntary settlement tooth and nail in the courts,

Mr. Ashcroft was running in the Republican primary for governor. He was pitted

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against Gene McNary, the County Executive of St. Louis County, who was also an

adamant opponent of desegregation. Toward the end of a close campaign in which

the candidates sought to outdo each other in their opposition to desegregation, Mr.

Ashcroft ran a television ad, dubbed the McFlipFlop commercial, in which he accused McNary of being soft on desegregation for having said some time earlier that

he would not object to the desegregation plan if all of the suburban school districts

accepted it.

That commercial was ‘‘given a major part of the credit for Mr. Ashcroft’s convincing victory.’’ St. Louis Post-Dispatch, August 12, 1984, p. 1 B. Whatever its effectiveness, the ad and other statements by Mr. Ashcroft were calculated to inflame the

passions of people who feared or resisted desegregation. In the words of the St.

Louis Post Dispatch, Mr. Ashcroft and his opponent were ‘‘exploiting and encouraging the worst racist sentiments that exist in the state.’’ March 11, 1984. See also

Exhibit 1. In his December 28 Order Judge Hungate, responding to State charges

about the work of one group of plaintiffs, said ‘‘with equal validity, one might argue

that counsel for the State voluntarily rode Liddell’s bus to political prominence.’’ H(3554) 84 at 16.

LIDDELL: 1985–1992

In the years that John Ashcroft served as governor, the State continued its slash

and burn tactics in court. In 1989 and 1990, Judge Steven Limbaugh, who had succeeded Judge Hungate and who ordinarily was very mild in his manner and language, was moved to make the following statements:

‘‘It appears to this Court that the extremely antagonistic nature of recent filings indicates that the counsel for the State is ignoring the real objectives of this

case—a better education for city students to personally embark on a litigious

pursuit of righteousness.’’ Order L (3039) 90 at 3.

The States Motion was ‘‘the latest in a series of motions which are not only unnecessarily adversarial in nature but indicate a lack of communication between counsel and the State’s non-legal personnel involved in this case. The motion is meddlesome and intrudes upon the cooperative efforts of the educational personnel

of both parties.’’ Order L (3039)90 at 2.

The State’s litigation tactics were only serving ‘‘to waste the Court’s time and taxpayers’ money.’’ Id. at 4.

The State had resorted to ‘‘factual inaccuracies, statistical distortions and insipid remarks regarding the Court’s handling of this case.’’ Order L (2311) 89 at 2.

Judge Limbaugh warned the State to ‘‘desist in filing further motions grounded in

rumor and unsubstantiated allegations of wrongdoing.’’ He added that the State

in recent years has even resorted to ‘‘veiled threats’’ towards the Court in its

effort to thwart implementation of the remedy. Id. at 3–4.

I of course have no way of knowing the extent of Mr. Ashcroft’s personal participation in the actions that roused the Court’s ire. I do know that they represented a

continuation of his policies as Attorney General and that he did nothing to repudiate them as Governor.

In 1995, Governor Mel Carnahan who was then the most prominent defendant in

the case, offered this comment on the history of the litigation:

‘‘The reason Missouri has been unsuccessful in ending the desegregation cases is

that the State has never made a credible attempt to address the concerns of

the Federal courts. The state has always forcefully and consistently objected to

Plaintiffs’ demands. However, it has not; offered potential solutions to the desegregation problem. . .’’ St. Loads Post Dispatch, March 26, 1995 at 3B.

LIDDELL: THE AFTERMATH

In 1991, the State began filing a series of motions seeking a declaration of unitary

status and a cessation of its financial obligations That issue came to trial in 1996.

At the trial it became clear that many of the aspects of the remedy had been very

successful. For example, it was revealed that African-American students (the great

majority of them poor) who attended schools in the suburban districts graduated

high school and went on to college at rates far in excess of students in St. Louis

who had very high dropout rates and also in excess of African-American students

in urban districts around the nation In addition, the State’s own expert, David

Armor, praised the academic progress that had been made in city magnet schools.

After the trial Judge George Gunn appointed William Danforth, recently retired

chancellor of Washington University in St. Louis to be settlement coordinator. Dr.

Danforth, who had done his own investigation of the effectiveness of the remedy,

concluded that the best solution would be to find a way to continue the remedy by

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replacing court-ordered funds with a legislative appropriation, thus enabling the

court to withdraw from active supervision of the case. I worked with Dr. Danforth

to lobby the Missouri legislature, and with Governor Carahan’s active assistance, we

were able to secure bipartisan action by the legislature to appropriate funds sufficient for the remedy to continue into the indefinite future. This time, the Attorney

General agreed to a new settlement based on the legislature’s action . In 1999, the

citizens of St. Louis did their part by agreeing to a tax increase to help finance the

settlement. A majority of voters in every ward, black and white, voted for the increase.

The actions of the State legislature and the citizens of St.Louis are quite remarkable, perhaps as remarkable as the 1983 settlement agreement.

When one looks back on the twenty year history of the case, it becomes apparent

that this was not a partisan matter. Many Republicans as well as Democrats understood the wrong that had to be righted and the need to find ways to provide equal

educational opportunity for African-American students. Dr. William Danforth made

a great contribution and former Senator John Danforth supported the settlement at

various stages of the litigation. Judge Steven Limbaugh and Judge George Gunn,

both Republican appointees of President Reagan, moved the remedy forward in the

face of continuing opposition from the State. In contrast, John Ashcroft fought every

aspect of the remedy in the ways I have described and never offered to the courts

any alternative program to advance educational progress and improve race relations. Nor in the years he has been senator has Mr. Ashcroft ever publicly reconsidered his positions or offered any support to the widely acclaimed 1999 agreement.

CONCLUSION

After reviewing the actions of John Ashcroft in the St. Louis case, I have concluded that they are strongly reminiscent of the actions of public officials during the

era of massive resistance in the 1950s and 60s in the South. That is a period I witnessed as a civil rights lawyer and later as General Counsel and Staff Director of

the U.S. Civil Rights Commission and most officials North and South now agree

that it was a shameful period in American history. In some ways I think that the

actions of John Ashcroft in massively resisting a remedy in the St. Louis case and

using race issues for political advantage were worse. By 1980, there could be no

valid claim that school desegregation was the product of imperial federal courts. The

Civil Rights Act of 1964 had made equal opportunity and desegregation national

policy and the era of obstruction and resistance had largely passed.

Nor as I have mentioned has John Ashcroft ever by word or deed provided any

evidence that his views about these matters of equal opportunity have changed. To

the contrary, in his recent embrace of racially extremist groups there is evidence

of the continuity of his views.

Mr. Chairman I state the obvious when I say that it is not easy for me or for

members of the Senate to seek action that will thwart the hopes and ambitions of

a person for high office. But that is a necessary product of our constitutional system

of ‘‘advise and consent.’’

During my long career in civil rights I have been privileged to witness a great

deal of progress in the status of African-Americans and other historically discriminated-against people. Unfortunately, however there are constant reminders that

race is still the problem that plagues the American conscience. Decisions about how

and whether we will address continuing problems of discrimination are made in

many ways—including the nomination of people to the offices charged with making

civil rights policy and enforcing civil rights laws. Today, the rights of millions of

Americans to be free of hate crimes, not to be racially profiled, to better educational

opportunity, to housing choice, to equal opportunity in the workplace are at stake.

Given his extensive record, there is no basis for believing that these rights would

be effectively protected during his tenure as Attorney General. I do not think that

confirmation-day conversions or pledges to enforce the law can counter the long history of opposition to civil rights that has been documented. I fear that installation

of John Ashcroft as Attorney General would send a message of racial divisiveness

throughout the nation, would jeopardize the rights of citizens and would set us back

years in our continuing quest for equality of opportunity for all.

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III. ASHCROFT’S STATE RECORD: REVEALING HIS STRIDENT RESISTANCE

TO THE PROTECTION OF CIVIL RIGHTS

A. RACIAL DESEGREGATION OF MISSOURI SCHOOLS

Both as Attorney General and Governor of Missouri, John Ashcroft was well

known as an opponent of school desegregation programs in St. Louis and Kansas

City. Differences of legal and political opinion existed then and now on this subject,

and such differences alone would not constitute significant grounds for opposing

Ashcroft’s nomination. But Ashcroft’s conduct in Missouri went far beyond such differences of opinion. Ashcroft spent years and significant state resources in efforts

to stymie voluntary St. Louis desegregation plans designed to enable city and suburban students and families to chose whether to participate on a complexly voluntary

basis. He repeatedly tried to delay and reverse court orders, and his arguments

were rejected in three appeals to the Supreme Court. He was threatened with contempt of court and was criticized and rebuked by federal judges. His conduct was

likened to the Southern ‘‘massive resistance’’ that had followed the Supreme Court’s decision more than two decades earlier in Brown v. Board of Education. Observers

chastised him for exploiting his opposition to desegregation in his campaign for governor through rhetoric widely perceived as racially divisive. Even supporters and

fellow Republicans criticized his tactics. And he failed completely to undertake

meaningful efforts to solve the problems of state-created segregation, to resolve the

litigation through negotiations or settlement, or to provide constructive leadership

on the issue, all important qualities for a future U.S. Attorney General.

1. An Attorney General’s crusade to obstruct voluntary desegregaton. Ashcroft’s significant involvement with desegregation in St. Louis began around 1980, for in that

year both the federal court of appeals for the Eighth Circuit and the federal district

court in St. Louis found both the State of Missouri an the City school board liable

for continued segregation of the public schools. The State’s liability was based primarily on state legal and constitutional provisions dating back to 1865, which mandated separate schools for blacks and whites (provisions not completely repealed

until 1976); the mandatory transfer of black suburban students into segregated city

schools to enforce segregation; and the state’s failure to take effective action to dismantle the racially dual school system and its effects. See Adams v. United States, 620 F.2d 1277, 1280–81 (8th Cir.), cert. denied, 449 U.S. 826 (1980). As the district

court recognized that year, ‘‘ the State defendants stand before this Court as primary constitutional wrongdoers who have abdicated their affirmative remedial

duty.’’ Liddell v. Board of Education of City of St. Louis, 491 F. Supp. 351, 359 (E.D.

Mo. 1980), affd, 667 F.2d 643 (8th Cir.), cert denied, 454 U.S. 1081, 1091 (1981).

As part of its May 1980 order, the district court ordered desegregation in St. Louis

to begin that fall. One provisions of the court’s order, as specifically suggested by

the court of appeals, called on the City Board and the State to seek the Cooperation

of suburban districts to enhance school desegregation by developing a ‘‘voluntary,

cooperative plan’’ in which city and suburban students could choose to transfer between the city and the suburbs. 491 F. Supp. at 353.

The City Board and the suburbs promptly began to discuss such a voluntary plan.

On behalf of the State, however, Ashcroft immediately announced he would appeal,

seeking to overturn event the provision that called only for planning of a voluntary

city-suburb program. The St. Louis Post-Dispatch (June 20, 1980). Despite the opposition of the City Board and the United States, which had intervened in the case

on the side of the plaintiffs, Ashcroft asked the court of appeals to delay the order

while the appeal was being heard. When the court of appeals turned Ashcroft down

in August, he asked the Supreme Court fro another delay. Ironically, he did not ask

for a delay in mandatory student transfers within St. Louis, but did try to further

postpone work on a voluntary city-suburb plan. The Court denied Ashcroft’s request.

years later, an expert witness involved in the case testified that the City Board and

the state had enjoyed a brief period of cooperation in 1980, but that after the May

1980 order, Ashcroft told state education officials ‘‘not to talk with anyone.’’ (St.

Louis Post-Dispatch March 23, 1996).

Although the district court’s order had directed the parties to work out a voluntary plan to begin in 1980–81, delays continued throughout the school year. After

the state finally submitted an initial plan, the judge rejected it as lacking in specifics and called on the state to submit another, but the state did not do so. The

NAACP and the City Board then filed a claim for mandatory interdistrict relief,

based in part on the failure of the state to act. Ashcroft responded not only by opposing any such mandatory relief, but by declaring that voluntary efforts were now

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impossible and by asking for another delay in submitting a voluntary plan. The St.

Louis Post-Dispatch excoriated Ashcroft:

The logic of these arguments is mystifying. . .Even now, acquiescence in a voluntary program might dispense with the need for one ordered by court. . .As

matters stand, a state that for more than a century required its schools to segregate the races now presents itself as unable to help them desegregate, even

on a voluntary basis. . .Judge Meredith had asked the state to take the lead

in developing suggestions for a voluntary program. Take the lead? The attorney

general has put state leadership in reverse. (St. Louis Post-Dispatch, Feb. 1 and

Feb. 4, 1981.)

Throughout this period, Ashcroft continually sought to thwart desegregation by

failing to comply with orders and deadlines for submission of plans and seeking

delays from the appellate court. Finally, in March, 1981, the district judge entered

a blistering order threatening to hold the state in contempt if it failed to submit

a voluntary plan within 60 days. The judge criticized the state’s ‘‘continual delay

and failure to comply’’ with the court’s orders. Associated Press, March 5, 1981. ‘‘The

court can draw only one conclusion,’’ the judge explained, ‘‘the state has, as a matter

of deliberate policy, decided to defy the authority of this court.’’ St. Louis Post-Dispatch (March 5, 1981).

Although Ashcroft claimed that the state was working on a voluntary plan, he

again asked the appellate court and then the Supreme Court for a delay, as he also

sought to have the Supreme Court overturn an appellate court decision fully affirming the district court’s May 1980 order. All these requests were denied.

As 1981 continued, Ashcroft persisted in his efforts to disrupt voluntary desegregation efforts. For example, when the court named Susan Uchitelle, a state education official, to oversee voluntary desegregation efforts, which could presumable

have helped secure state cooperation, Ashcroft demanded her removal. The Post-Dispatch noted that the state could have felt ‘‘honored by the use of Ms. Uchitelle as

a leader’’ in the voluntary desegregation effort, but ‘‘[i]nstead, Missouri’s attorney

general acts as if segregation is here to stay.’’ St. Louis Post-Dispatch (July 14,

1981). Around the same time, the Reagan Administration Justice Department submitted a plan to encourage voluntary desegregation by offering fee state college tuition to students who agreed to city-suburban transfers. The City Board agreed, several suburban districts and a state university official praised the idea, and the

Reagan Administration received praise for suggesting a plan to promote voluntary

desegregation consistent with its opposition to mandatory busing. Nevertheless,

Ashcroft balked at the suggestion, basing his opposition on cost and on claims that

the plan would result in the transfer of ‘‘the most motivated’’ black city students

to the suburbs. Newweek (May 18, 1991).

The federal proposal also produced another result for Ashcroft. He began to hold

talks with Reagan Administration officials, which Ashcroft reportedly tried to keep

secret, about the St. Louis and Kansas City cases. It was soon reported that

Ashcroft was trying to convince Reagan Justice Department officials to switch sides

and support the state in its latest effort to get the Supreme Court to reverse lower

court rulings in the St. Louis Case. In the short run, those efforts failed, as the Justice Department suggested that the Court should not accept Ashcroft’s request.

When the Court again rejected Ashcroft’s appeal, he remained defiant, proclaiming

that ‘‘this fight is a long way from being finished.’’ UPI (Nov. 30, 1981) The PostDispatch noted that legal contentions can be pursued on and on,’’ but urged ‘‘the

state of Missouri and its attorney general’’ to ‘‘begin working for desegregation instead of obstructing it.’’ St. Louis Post-Dispatch (Dec. 1, 1981).

The new year of 1982, however, saw little change in Ashcroft’s attitudes and tactics. In January, speaking to a suburban rotary club, he attached desegregation and

declared that busing is ‘‘unconstitutional discrimination against all groups.’’ St.

Louis Post-Dispatch (January 13. 1982). He lost another appeal in which he contested again the state’s liability and protested any voluntary city-suburb plan. The

appellate court’s opinion pointedly urged the state to participate in the desegregation budget process ‘‘so that the annual budget can be determined on a cooperative

rather than an adversary basis.’’ Liddel, supra 677 F.2d 626, 628 8th Cir.), cert. denied2, 459 U.S. 877 (1982). For the second year in a row, the Supreme Court denied

Ashcroft’s request for a full review. One news article noted that Ashcroft was ‘‘making himself a familiar advocate before the Supreme Court, most often as the antagonist of civil rights interests.’’ St. Louis Post-Dispatch (Nov. 7, 1982). The article

quoted civil rights lawyers who criticized Ashcroft’s ‘‘zealous, litigate-to the-end’’ approach, and noted that his frequent appeals to the Court were discouraging suburban districts from joining the voluntary city-suburb plan. Although noting that the

Court’s acceptance of a number of (non-desegregation related) appeals demonstrated

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that Ashcroft’s office was certainly not being frivolous, the article quoted one former

assistant attorney general as highly critical of the ‘‘litigate-to the-end’’ approach

even in innocuous suits, comparing Ashcroft unfavorably to his predecessor, John

Danforth.

The article noted Ashcroft’s harsh and racially divisive rhetoric in court papers.

For example, in his latest appeal to the Supreme Court, the article explained,

Ashcroft call the lower court action ‘‘grossly unjust’’ and complained that if the defendant was ‘‘an individual, especially a minority, neither this court nor the court

of appeals would have permitted’’ the procedures used. Id. Critics likened Ashcroft’s

handling of the St. Louis case ‘‘to the massive resistance that some Southern politicians mounted in the 1950’s and 1960s to oppose desegregation.’’ One attorney who

asked not to be named stated that ‘‘[a] lot of what he does is to delay and harass’’

and that he ‘‘appeals everything to the Supreme Court.’’ Id. School desegregation

expert Dr. Gary Orfield was reported as testifying in court that the state’s arguments reminded him of the defense of segregation in Brown v. Board of Education

itself. Dr. Orfield stated that he had been reading the Brown transcript ‘‘where the

attorney representing the government of South Carolina argued that it would be

educationally better to leave the black children segregated.’’ He explained that ‘‘I

thought I wouldn’t hear state government producing that argument again’’ but was

‘‘very disappointed to hear it’’ in the St. Louise case. Id.

In 1983, Ashcroft’s efforts to obstruct voluntary city-suburban desegregation

reached a new level. Shortly before the trial of the segregation claims against the

suburban districts was to begin, the City Board, the NAACP, and the suburban districts announced a tentative settlement. The agreement called for significant expansion on the city-suburb voluntary desegregation program, as well as for additional

efforts to improve education in city schools to help remedy the educational vestiges

of segregation. Although the State department of education had reportedly made

positive comments about the plan, Ashcroft and the City of St. Louis promptly opposed it. Ashcroft criticized the costs that would be imposed on the state, and asserted that mandatory transfers could occur in the future ifs the plan failed. He had

critical letters had-delivered to each of the suburban districts. A source close to the

negotiations reported that Ashcroft was not ‘‘telling the whole story’’ and was ‘‘trying to scuttle this agreement.’’ St. Louis Post-Dispatch (April 2, 1983).

One of Ashcroft’s major objections to the plan—his claim concerning its costs—

was criticized not only by the Post-Dispatch, but also by St. Louis Archbishop John

I. May. The Archbishop urged citizens to ignore the ‘‘hysterical figures’’ and to emphasize the positive ‘‘in place of the dirges we have been hearing from Jefferson

City,’’ the state capital. UPI (July 25, 1983). The Archbishop and 10 other prominent religious and public figures endorsed the plan. Although acknowledging

Ashcroft’s proper role in defending the state, then Senator and former state Attorney General John Danforth split with Ashcroft and announced his support for the

plan. Suburban districts rejected Ashcroft’s race-tinged claim that the plan would

‘‘subordinate education to other objectives’’ and his insistence that he would have

preferred to litigate the case. In July 1983, despite Ashcroft’s three-year efforts, the

City board and all 23 suburban districts approved the plan, and the federal court

accepted it.

Ashcroft and the City announced they would appeal and sought a district court

order to delay the plan. Even though the school year had already begun, Ashcroft

asked the court of appeals-to stay the plan—and effectively order thousands of students uprooted from the schools they had begun—in September. Although the court

of appeals did temporarily limit the plan to students who had already transferred

and did prevent any possible court action to change city tax rates, the appellate

court firmly rejected most of the stay order that Ashcroft requested. As a result of

such a stay order, the court explained, the ‘‘lives of thousands of students and teachers would be disrupted before this court had decided the matter on its merits.’’ AP

(Sept. 13, 1983).

In early 1984, the last year of his term as Attorney General, Ashcroft announced

his intention to run for governor. In his announcement speech, he pledged to continue to fight ‘‘tooth and nail’’ to oppose the ‘‘just plain wrong’’ St. Louis desegregation orders, vowing that ‘‘this battle is not over.’’ UPI (Jan. 4, 1984). Ashcroft soon

received another court setback, as the full 8th Circuit Court of Appeals voted 7 to

2 to uphold most of the desegregation plan. The court painstakingly noted that on

three separate occasions it had already rejected the state’s arguments against the

use of voluntary interdistrict transfers and that each time the Supreme Court had

denied review, Liddel, supra, 731 F.2d 1294, 1302–05 (8th Cir.) (en banc), cert. denied, 469 U.S. 816 (1984). The appeals court nevertheless considered Ashcroft’s arguments for the fourth time, and again rejected them Id. at 1305–1309.

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The court did agree with Ashcroft that the state should not pay for voluntary integrative transfers of black suburban students from predominantly black to predominantly white suburbs, since that would not help promote desegregation in the city

Even though that part of the order affected only 311 students, Ashcroft moved immediately to cut off payments for those students, prompting fears that they would

be forced to return to their former schools with only three months left in the school

year. critics called Ashcroft’s actions a ‘‘cruel way to deal with students who had

placed their educational hopes in their new schools.’’ (St. Louis Post-Dispatch Feb.

19, 1984). A split court of appeals avoided such an outcome by ordering the state

to continue the payments temporarily, subject to a later good faith effort among the

suburbs and the state to allocate the costs. Ashcroft called the decisions a ‘‘gross

miscarriage of justice’’ and predicted it would help his case in the Supreme Court.

(St. Louis Post-Dispatch March 6, 1984).

Once again, Ashcroft sought review of the court of appeals decision in the Supreme Court, with the opposition this time joined by the League of Women Voters

in the St. Louis area. Ashcroft did obtain a new ally, however, convincing the

Reagan Justice Department to complete its reversal of position and join his efforts

in the Court, as a result of what Ashcroft described as his ‘‘ arduous effort’’ at persuasion. (St. Louis Post-Dispatch July 24, 1984). Nevertheless, the high Court

turned Ashcroft down for a third consecutive year, prompting Ashcroft to claim that

the Court had ‘‘wrongfully sanctioned the judiciary’s usurpation of legislative authority’’ and to pledge to keep fighting. (St. Louis Post-Dispatch Oct. 3, 1984). The

Post-Dispatch noted the progress made under the plan, with over 5,500 students

participating in totally voluntary desegregation transfers plus better education in

only its second year, all of ‘‘[d]espite the attorney general’s efforts.’’ (St. Louis PostDispatch Oct. 3, 1984).

In the meantime, Ashcroft was busily using the desegregation issue is his

gubernational campaign. During the Republican primary campaign, Ashcroft and

his primary opponent were ‘‘trying to outdo each other as the most outspoken enemy

of school integration in St. Louis,’’ and ‘‘exploring and encouraging the worst racist

sentiments that exist in the state.’’ (St. Louis Post-Dispatch March 11, 1984).

Ashcroft publicly wore the threatened federal contempt citation against him as a

badge of honor, arguing that it showed he had ‘‘done everything in my power legally’’ to fight the desegregation plan. (UPI, Feb. 12, 1984). Ashcroft criticized the

St. Louis plan as ‘‘grandiose programs just to enhance a few students,’’ ignoring the

thousands who were being helped. (Jefferson City Post Oct. 5, 1984). In one debate,

he called the plan an ‘‘outrage against human decency’’ and an ‘‘outrage against the

children of this state.’’ (St Louis Post-Dispatch June 15, 1984). At one point, he appeared to compare desegregation to drug use, staring that the people who are

against the desegregation plan also pay for it ‘‘[b]ut some people sell pot and think

it should be legalized, and we fight against them with their tax money,’’ and ‘‘I don’t

have any problem with that.’’ (Oakombia Missourian July 18, 1983). Ashcroft’s

media consultant described an ad attacking alleged waffling by his primary opponent on desegregation as Ashcroft’s ‘‘silver bullet.’’ (St. Louis Post-Dispatch Dec. 30,

1984).

Newspapers on both sides of the desegregation issue were highly critical of

Ashcroft, along with his primary opponent, for divisive rhetoric. The Daily Dunklin

Democrat, which had supported Ashcroft’s desegregation appeals, nevertheless criticized the Republican primary campaign as ‘‘reminiscent of an Alabama primary in

the 1950s.’’ (St. Louis Post-Dispatch Oct. 26, 1984). The African-American newspaper (St, Louis Post-Dispatch Feb. 29, 1984).

2. Ashcroft continues to battle desegregation as governor. Shortly after he was

elected Governor, Ashcroft received yet another stinging rebuke for his handling of

the St. Louis case—this time, from the federal court. Ashcroft’s office had vigorously

opposed a request for civil rights attorneys’ fees to be paid by the state to the attorney’s who had successfully litigated against him. (In fact, he had previously asked

President Reagan to support legislation to limit state liability for civil rights attorneys’ fees, using St. Louis as an example. (St. Louis Post-Dispatch Nov 20, 1983.)

Ashcroft argued that the size to the bill, over $3 million, was excessive and that

much of the plaintiffs’ attorneys’ efforts were not necessary. Although the judge did

substantially reduce the size of the award, he unequivocally rejected Ashcroft’s

claim and found that the work was ‘‘unquestionably necessary’’ because of the conduct of the state and its attorney general. The judge explain that the state had contributed significantly to the size of the award by its ‘‘opposition and repeated appeals.’’ Ashcroft and the state had continued to ‘‘litigate what the other parties

sought to settle, thereby increasing litigation costs for which it now seeks to avoid

responsibility. ‘‘In fact, the judge stated, ‘‘[i]f it were not for the state of Missouri

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and its feckless appeals, perhaps none of us would be here today.’’ (St. Louis PostDispatch, Dec. 30, 1983, Jan. 3, 1985) (emphasis added).

Aschroft also argued that the attorneys for the original plaintiffs had ridden the

‘‘coattails’’ of other parties to seek unwarranted attorneys’ fees. The court rejected

this argument as well, with words aimed clearly at Ashcroft. ‘‘With equal validity,’’

he explained, ‘‘one might argue that counsel for the state voluntarily rode Liddell’s

bus to political prominence.’’ (Id.) Although the size of the award was reduced on

appeal because the court determined that the plaintiffs were only 75% successful,

the appellate court otherwise affirmed the trail court’s decision. Liddell, supra, No.

85–1179 (8th Cir. July 9, 1985).

After he assumed the governor’s office, of course, Ascroft’s direct involvement in

the St. Louis case diminished. Nonetheless, he continued to urge vigorous opposition

to the plan and to criticize the federal court rulings, particularly in election year

1988. Ironically, at a 1989 education conference in Washington, Ashcroft publicly

supported the idea of public school choice in Missouri. The director of the St. Louis

voluntary interdistrict desegregation choice program, whom Ashcroft had attempted

to remove years earlier, responded in a way that aptly summarizes Ashcroft’s record

and the accomplishment that he tried to thwart:

For nine years, Gov. John Ascroft has been fighting the voluntary choice plan in

St. Louis and St. Louis County. But now the light suddenly dawns. At the president’s education summit, Ashcroft announces he wants to offer Missouri school

children the right to school choice.

Where have you been, governor? Without your help—indeed over your vehement opposition—St. Louis has had school choice. In fact, St. Louis has the largest and

most successful school choice program in the country. To date, more than 22,000

students are making school choices, both within the city system with its magnet

schools and among 16 suburban districts.

Ashcroft now says school choice could lead to more motivated students and higher

achievement. He is right! We are finding the longer school choice students are

in the program, the better they perform. All area schools can attest to improved

curricula as a result of our voluntary school choice program.

But school choice does not just happen. It requires equitable access that will not

upset racial balance. It requires available transportation so that all students

will have the right to choice. It requires funds to improve urban districts. (St.

Louis Post-Dispatch Oct. 8, 1989).

Gov. Ashcroft opposed all of the see and other features of the St. Louis plan, a

situation that changed under his successor. Governor Mel Carnahan spent part of

his first day in office discussing how to settle or end both the St. Louis and the Kansas City desegregation lawsuits. The settlement reached by the State and all other

parties in early 1999 won widespread acclaim. St. Louis Post-Dispat (Jan. 7, 1999).

Ashcroft’s direct involvement in the Kansas city case was less significant than in

St. Louis because most of the key court proceedings and the resulting controversial

remedies in that case occurred at the end of or after this term as Attorney General

Ashcroft opposed any state liability in that case as well, a position rejected by the

district court in September of 1984. As governor, Ashcroft continued to direct the

attorney general to appeal orders calling for significant expenditures by the state,

and he received much more political and legal support for his position, up to and

including a 1995 Supreme Court decision in the case that he praised as a Senator.

Nevertheless, Ashcroft came under significant criticism, even from supporters and

fellow Republicans, for his ‘‘continual harping against’’ desegregation in Kansas City

and his failure to provide effective leadership and offer alternatives to remedy problems the state had helped cause. (Kansas City Times, Oct. 25, 1988). The president

of the Kansas City board lamented in 1987 Ashcroft’s earlier failure to ‘‘offer viable

alternatives when he had a chance to do so.’’ (Kansas City Star Nov. 10, 1987). A

Republican state legislator from the area explained that she was ‘‘very disturbed

that once the judge handed down his findings, the state was not more pro-active

in finding a solution.’’ She stated that contacts with Ashcroft’s office on the subject

were ‘‘not productive’’ because he did not appear to have a ‘‘philosophy that allows

for different points of view.’’ (St. Louis Post-Dispatch Jan. 10, 1993). A former St.

Louis school board member suggested that Ashcroft was partly to blame for increasing expenditures, noting that ‘‘you can’t help but wonder how soon this would’ve

ended if (the governor) hadn’t been so concerned with fighting this and more concerned with finding a resolution.’’ (St. Louis Post-Dispatch Jan. 3, 1993). In short,

the qualities displayed by Ashcroft in school desegregation controversies in Missouri, particularly in St. Louis, are not the qualities America has a right to expect

from its Attorney General.

f398

EDUCATIONAL CONSULTANT

ST. LOUIS, MO 63105

January 12, 2001

Mr. William Taylor

Attorney at Law

2000 M Street, NW, 400

Washington, DC 20036

Dear Mr. Taylor,

In response to your inquiry, I am forwarding to you the log I kept during the beginning days of the initiation of the St. Louis School Desegregation case in 1981.

My contact at the State was Mr. William Wasson, the Deputy Commissioner of Elementary and Secondary Education for the State of Missouri. This information details the objections of State officials to my Court appointed position.

Sincerely yours,

SUSAN UCHITELLE

July 8, 1981

At 8:45 a.m. I received a call from Paul Rava asking me what school district or

districts from the County would take the first step. Kirkwood and Ferguson are possibilities.

Wish the Judge had given greater specificity. He wants me to get commitments

from some districts that will stand up. It won’t totally solve the St. Louis problem,

and they know it. They would be willing to put on ice for one year any litigation

to those districts who are willing to participate. He would see if this could be

worked out. He indicated that they would be willing to do so. Wants actively with

anyone who is cooperating with us in a dimension that is mutually satisfactory. We

talked for 15 minutes.

At 9:30 a.m. I went to see the law clerk in the Judge’s office. I explained the difficult State situation.

I spent the afternoon in St. Louis at the Counselling and Recruiting Center finding out procedures.

At 3:20 p.m. Earl Hobbs, Clayton Superintendent, called. Clayton is preparing a

response to the Court. They intend to cooperate on their own terms and will design

a plan to present to the Judge by July 22, 1981.

At 5:00 p.m. Bill Wasson from State called to tell me that the State did not want

me to take the job, that there was a conflict of interest and that the State (Attorney

General and Gov. Bond) had mailed a motion to the Judge requesting a release (for

me to vacate) from the job.

July 9, 1981

I talked with Bill Wasson and Commissioner Mallory early this morning. They did

not want me to resign from the Department of Elementary & Secondary Education.

They suggested that I not do anything, at least until the Judge rules on the motion

to have me vacated filed by the Attorney General. The commissioner felt very

strongly that I was needed in my own capacity as Supervisor of Instruction, and

he requested that I hold on until next week. I should work on the implementation

and do what I had to do.

I called some school districts to let them know that I was available to help them

in any way.

July 15, 1981

Bob Moody of the Webster Groves Board of Education called wanting information

about the Plan in some way.

Rev. Ben Martin called to say that some board members had called him wanting

information and don’t know how to get it.

I talked with Normandy to express my interest and concern in their position. Also

talked with Lindbergh, Maplewood-Richmond Heights and Ferguson-Florissant. (I

found out there was a Cooperating School Districts meeting with superintendents

this morning.) I simply talked with these districts to get a sense of their own responses to the desegregation issue.

399

At 10:20 a.m. I talked with Gary Wright at Lindbergh. They had a very late meeting the night before and upon advice of counsel they decided to decline to participate

in the Plan because there is no provision to drop any litigation.

At 11:45 a.m. Bill Wasson called me. He said that the State wanted me to come

out in support of Ashcroft’s motion to have me vacated from the job. They (State)

would tolerate no action on my part—public meetings, school board attendance, any

efforts to talk about the Plan. Ashcroft was about to send a letter to me stating

strongly his position and insisting I resign from the Court or resign from the State,

and if I resign from the State, I would never receive another appointment or job

from them. I can’t preach and still be a state employee. He said they would not act

on my request for a leave of absence—they did not want to grant one. I told him

it would need time to consider. The afternoon was spent working out legal alternatives with Skrainka and Sandweiss. I cancelled my appointment with Pattonville

School District and also cancelled the appointment with Hope United Presbyterian

Church were an informational meeting was [Note: material submitted ended in midsentence.]

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January 17, 2001

ADDENDUM TO THE TESTIMONY OF WILLIAM L. TAYLOR

In my testimony, I chronicle the history of the St. Louis school case which is a

remarkable story of plaintiffs and local school officials voluntarily agreeing to remedy decades of discrimination by the State of Missouri and local school boards with

a plan for voluntary desegregation. I will not read that testimony today, but I ask

that it be made a part of the record of these hearings.

What I would like to focus on is the role of John Ashcroft in this case, first as

Attorney General until 1984 and then as governor until 1992. In particular, I will

address certain statements that Mr. Ashcroft has made in these hearings about the

case and his role in it, statements that are contradicted by the record.

1. WAS THE STATE A PARTY WHEN IT WAS HELD TO BE A CONSTITUTIONAL WRONGDOER

AND LEGALLY LIABLE FOR SEGREGATION OF THE ST. LOUIS SCHOOLS?

Mr. Ashcroft said it was not a party when he took over and therefore he had to

litigate these findings. The fact is that the State was made a party in 1977 at the

time Mr. Ashcroft was Attorney General. Thus, in 1980, when the Court of Appeals

held that the state hade violated the Constitution, Mr. Ashcroft had a full opportunity to litigate the issue before the courts and made a full-dress argument. Adams v. United States, 620 F. 2d 127, 1283 (1980) Nevertheless, he persisted in contesting

state liability in appealing Liddell orders in 1981, 1982, and 1984. 667 F.2d 643,657

(8th Cir 1981); cert. denied 454 U.S. 1081; 677F2d.626 (8th Cir. 1982); cert. denied

459 U.S. 877; 731 F.2d 1294 (8th Cir 1981); cert denied 469 U.S. 816 (1984).

The Court of Appeals repeatedly rebuffed the State’s appeals. In 1981, it said the

State’s appeals. In 1981, it said that the State’s contentions that the 1980 decision

did not settle the matter were ‘‘wholly without merit,’’ 667 F.2d at 629. The 1984

decision recited again the constitutional misdeeds of the State. 731 F.2d at 1303,

1306.

It may be that Mr. Ashcroft has retracted his claim in dialogue with Senator

Leahy on Wednesday, but I wanted to make the record clear that the State was a

party and that it continued to press its claim long after the matter was seemingly

settled.

2. IS IT TRUE THAT THE STATE HAD DONE NOTHING WRONG?

Mr. Ashcroft stated in his testimony that the state had ‘‘done nothing wrong’’ and

was ‘‘found guilty of no wrong.’’ These statements are astonishing and baseless. The

Courts, on numerous occasions, had found that the State had done numerous things

prior to 1954 to impose racial segregation on school districts, including participation

in a scheme to have black children in the St. Louis suburban districts transported

to school in St. Louis to keep the schools segregated. In the 1980 decision the District Court found that the State after 1954 ‘‘never took any effective steps to dismantle the dual system it had previously compelled.’’ 491 F.Supp. at 351,357,359–

601. The State, of course, had an affirmative constitutional duty to help dismantle

the regime of segregation it had imposed on black children. Its past history and current abdication led the court to characterize it as a ‘‘primary constitutional wrongdoer with respect to the segregated conditions in the St. Louis schools.’’ Id. This is

hardly the picture of a blameless governmental entity that Mr. Ashcroft sought to

paint.

3. IS IT TRUE AS MR. ASHCROFT CLAIMED THAT ‘‘IN ALL OF THE CASES WHERE THE

COURT MADE AN ORDER, I FOLLOWED THE ORDER, BOTH AS ATTORNEY GENERAL AND

AS GOVERNOR? ’’

Nothing could be further from the truth. one key period came in 1980 after the

Court of Appeals asked the parties to explore the possibility of a voluntary interdistrict remedy and Judge Meredith entered a formal order to begin the process.

The State resisted the process at every turn. In March 1981, Judge Hungate, who

had taken over the case, found that ‘‘the State as a matter of deliberate policy, decided to defy the authority of [this] Court’’ and that the State had resorted to ‘‘extraordinary machinations’’ in an effort to resist dismantling the dual system. H (11)

81 at 6. These findings came after a lengthy recitation of the numerous occasions

on which the State had sought to delay and evade court orders. The Court considered holding the State in contempt, but decided to make one more effort to issue

an order that might result in State to escape triumphantly from the consequences

404

of its defiance of Judge Meredith’s orders. . .The Court would be doing much less

than its duty if the State defendants were not held accountable for their actions.’’

Id. at 7. This Order is included as Exhibit 4 to my testimony.

The resistance of John Ashcroft became quite personal. As I detailing my testimony, in July 1981, the Court appointed Susan Uchitelle, an employee of the State

Department of Education, as interim director of a committee charged with devising

a voluntary plan. The State objected strenuously to Ms. Uchitelle’s appointment and

filed formal objections with the Court which were later rejected. At the same time,

the State sought to pressure Ms. Uchitelle to resign from this assignment. A contemporaneous log kept by Ms. Uchitelle reveals that a state education official relayed to her a threat from Mr. Ashcroft that if she chose to remain in the job she

would have to resign her state job and, if she did, that she ‘‘would never receive

another appointment or job from them.’’

Delaying tactics did not cease. Indeed, after our settlement with the 22 suburban

school districts was reached and the State appealed again and continued to resist

even after its appeals were exhausted, the District Court noted that the State had

delayed implementation of the voluntary plan through opposition and repeated appeals and concluded that ‘‘were it not for the state and its feckless appeals, perhaps

none of us would be here at this time.’’ Order H (355)) 84 at 17,25 (December 28,

1984.)

These tactics continued through Mr. Ashcroft’s tenure as governor. Judge Steven

Limbaugh, a Reagan appointee to the bench, referred to conduct by the State that

included ‘‘factual inaccuracies, statistical distortions and insipid remarks’’ regarding

the Court’s handling of the case. He warned the State to ‘‘desist in filing further

motions grounded in rumor and unsubstantiated allegations of wrongdoing.’’ and

added that the State had even resorted to ‘‘veiled threats’’ toward the Court to try

the ‘‘thwart implementation of the remedy.’’ Order L (2311) 89 at 2.

In sum, contrary to Mr. Ashcroft’s claim of following court orders, we have a pattern of resistance and evasion that persisted for almost a decade and that drew

many court rebukes.

4. OTHER MATTERS.

While Mr. Ashcroft claims he was and is in favor of integration, he said nothing

to support this during the conduct of the case. Indeed, he called the voluntary desegregation plan ‘‘an outrage against human decency.’’ St. Louis Post-Dispatch, June

15, 1984. He opposed not only the desegregation aspects of the plan but the program

to improve city schools as well, and he never offered a desegregation plan of his

own.

At one point in his testimony, Mr. Ashcroft suggested that the plan was harmful

because it drew middle class students out of city schools. This is flatly wrong. Seventy-five percent of children participating in the plan are eligible for free and reduced priced lunches.

Mr. Ashcroft has suggested that his conduct should be viewed along with the conduct of one of his successors as Attorney General, Jay Nixon, a Democrat. It is true

that I have been critical of Mr. Nixon for his efforts to end the remedy. But there

is one critical difference. In the end Jay Nixon joined with Governor Carnahan and

a bipartisan majority in the Missouri legislature in successfully seeking state legislative appropriations to replace the court-ordered funding and allow the remedy to

continue while the court ended active supervision, and Mr. Nixon entered into a

final settlement agreement with the plaintiffs. This was eloquent testimony to the

success of a plan that John Ashcroft fought at every step of the way. If he had prevailed, many thousands of St. Louis children would be denied the educational opportunities they now enjoy.

f

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408

409

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412

413

414

415

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Chairman LEAHY. Ms. James, I understand from Senator Hatch

that you have a conflict. You were supposed to be on a later panel,

and to accommodate your schedule, we put you on this panel. Is

that correct?

Senator HATCH. I don’t know.

Kay, can you be here tomorrow? Because if you can, that would

be better to have you.

Chairman LEAHY. I am trying to accommodate her.

Senator HATCH. Why don’t we get the last three witnesses and

have them give their testimony, and then if you can stay, that

would be great.

Chairman LEAHY. I think we want to just keep to the—

Senator HATCH. Why?

Chairman LEAHY. We will start to question these witnesses, but,

Ms. James, as I said to you, I would be perfectly willing to have

her come here.

Why don’t you give your testimony, Ms. James.

STATEMENT OF KAY COLE JAMES, HERITAGE FOUNDATION,

WASHINGTON, D.C.

Ms. JAMES. Thank you, Mr. Chairman, and I do appreciate your

accommodation. I will try to speak at a little more rapid pace than

would be my normal cadence to get it in, and I do understand that

we are all operating under time constraints.

I want to thank you for the opportunity to testify on behalf of

the nomination of John Ashcroft to be Attorney General of the

United States.

My name, in fact, is Kay Cole James, and I am a senior fellow

at the Heritage Foundation. I have known Senator Ashcroft for a

number of years and in a variety of roles, beginning in 1991 as

Governor and as head of the National Governors’ Association, as a

candidate, also as a member of the U.S. Senate, as a Presidential

candidate, and as a conservative activist.

Albert Einstein once said it is the duty of every citizen according

to his best capacities to give validity to his convictions in public affairs. John Ashcroft’s long career not only exemplifies the virtue of

devoted public service, but it is a testament to his efforts to give

validity to his convictions.

I have watched these hearings and thought that there was an

important distinction that needed to be made. There is an enormous difference between being an advocate for a particular viewpoint or course of action, an activist, and in actually serving in

Government in an elected or appointed position. Each involves

vastly different roles, different functions and different goals and

processes. Many spend their entire lives as advocates and truly do

not understand the very different role of governing or interpreting

the law.

Being a State Attorney General or a Governor or a Federal Cabinet member is quite different from being an activist or a partisan.

Many individuals are not capable of making the transition. However, by his testimony and by his record as Governor and Attorney

General, John Ashcroft has demonstrated that he understands the

difference between being an activist and being a public servant.

417

At the root of Senator Ashcroft’s strong views is his religious

faith which he has said is the bedrock of the principles which

shape his life. Unfortunately, that faith has been dragged into the

public debate and has been used to call into question his fitness for

public service. This sentiment troubles me greatly as an American.

Senator Ashcroft’s opponents of veered perilously close to implying that a person of strong religious beliefs cannot be trusted with

this office, perhaps with any office, on the pure basis that such a

person will be unable to resist the temptation to use the office to

impose his religious beliefs on others. This assertion troubles me

for many reasons more so than I would have thought that we as

a Nation had long ago transcended such prejudices.

John Kennedy faced similar questions and attacks about a feared

conflict between his Catholic faith and the duties of public office

and demonstrated that ancient prejudices of this type have no

place in our democracy.

Similarly, I was heartened by Senator Lieberman’s many references during the recent Presidential Campaign to the importance

of faith in his life and in the Nation as a whole and his refusal to

be silenced by those who believed that mere discussion of personal

faith in public life is a danger to be suppressed. Indeed, Al Gore

professed wondering what would Jesus do when confronted with a

difficult situation.

Several members of the Senate have questioned whether or not

a man of strong personal faith and conviction can set aside his personal beliefs and serve as the Attorney General for all citizens. I

would hope that this answer is obvious not only from John

Ashcroft’s 25 years of remarkable service, but from the history of

our Nation as well. To the contrary, I believe that John Ashcroft

is precisely the type of individual we need in the public arena, a

man of strong principles, great integrity and intellect, who does not

shirk from engaging in public discourse about the great issues or

our day, and does so in a way that demonstrates not only his respect for others and divergent views, but an absolute and passionate commitment to the rule of law.

The system our founders designed, of course, is famous for its

many checks and balances from which no public official is immune.

Nevertheless, the charge is still made that these are insufficient to

deal with a man of religious conviction, as such a person cannot be

trusted to faithfully execute the laws, especially those which may

conflict with his deeply held belief. I reject such religious profiling.

On this matter, let me attempt to reassure John Ashcroft’s opponents by enlisting the very thing they profess to fear most, his religious faith. As with every other holder of public office, John

Ashcroft must take an oath before assuming his responsibilities,

and in this secular age, when even a hint of religion in the public

sphere can arouse fierce opposition. We keep the religious element

in our oath precisely because we understand the importance to the

individual. John Ashcroft will raise his hand if he is approved by

the Senate and voted on to become the Attorney General, and he

will take an oath of office. And I think that it is great. I think that

at this particular time in American history it is so important to all

of us to have people with character, with integrity, that when they

418

raise their hand and they promise to defend and protect this great

nation, we can count on them to do that.

Mr. Chairman, I have other comments, and I will reserve them

for the question and answer period, and submit them for the written record. And thank you, again, very much for your accommodation.

[The prepared statement of Ms. James follows:]

STATEMENT OF KAY COLES JAMES, HERITAGE FOUNDATION, WASHINGTON, D.C.

Mr. Chairman and Members of the Committee, thank you for the opportunity to

testify on behalf of the nomination of John Ashcroft to be Attorney General of the

United States. My name is Kay Coles James and I am a senior fellow at The Heritage Foundation. I have known Senator Ashcroft for a number of years and in a variety of roles, beginning in 1991: as governor and head of the National Governors’ Association; as a candidate for and then as a member of the United States Senate;

as a presidential candidate; and as a conservative activist.

Albert Einstein once said, ‘‘It is the duty of every citizen, according to his best

capacities, to give validity to his convictions in public affairs.’’ John Ashcroft’s long

career not only exemplifies the virtue of devoted public service, but it is a testament

to his efforts to ‘‘give validity to his convictions.’’

I am tempted to focus my remarks on the reasons why Senator Ashcroft would

make an outstanding Attorney General, for that would be a case that is both easy

and enjoyable to make. If the vote to confirm were to rest on the nature of his character or his integrity, then I have little doubt that your decision would be a unanimous one. But, unfortunately, the public debate has become focused on other things.

It has been diverted into areas that I believe not only are not founded on fact, but

also are harmful to the larger process in which we are currently engaged. So, with

your permission, I will use my time to address some of the wayward elements of

the public debate that has unfolded outside these walls, a debate that I believe is

profoundly miscast.

I have watched these hearings and thought that there was an important distinction that needed to be made. There is an enormous difference between being an advocate for a particular viewpoint or course of action—an activist, and in actually

serving in government in an elected or appointed position. Each involves vastly different roles, different functions, and different goals and processes. Many spend their

entire lives as advocates and truly do not understand the very different role of governing or interpreting the law. Being a state attorney general or a governor or a

Federal Cabinet member is quite different from being an activist or a partisan.

Many individuals are not capable of making the transition. However, by his testimony and by his record as governor and attorney general, John Ashcroft has demonstrated that he understands the difference between being an activist and being

a public servant.

At the root of Senator Ashcroft’s strong views is his religious faith, which he has

said, is the bedrock of the principles which shape his life. Unfortunately, that faith

has been dragged into the public debate and has been used to call into question his

fitness for public service. This sentiment troubles me greatly as an American. Senator Ashcroft’s opponents have veered perilously close to implying that a person of

strong religious beliefs cannot be trusted with this office—perhaps with any public

office—on the spurious basis that such a person will be unable to resist the temptation to use the office to impose his religious beliefs on others. This assertion troubles

me for many reasons, none more so than that I would have thought that we, as a

nation, had long ago transcended such prejudices. John Kennedy faced similar questions and attacks about a feared conflict between his Catholic faith and the duties

of public office and demonstrated that ancient prejudices of this type have no place

in our democracy. Similarly, I was heartened by Senator Lieberman’s many references during the recent presidential campaign to the importance of faith in his

life and in that of the nation as a whole and his refusal to be silenced by those who

believe that the mere discussion of personal faith in public life is a danger to be

suppressed. Indeed, A1 Gore professed wondering ‘‘What would Jesus do?’’ when

confronted with a difficult decision.

Several members of the Senate have questioned whether or not a man of strong

personal faith and conviction can set aside his personal beliefs and serve as the Attorney General for all citizens. I would hope that the answer is obvious not only

from John Ashcroft’s twenty-five years of remarkable service, but from the history

of the United States as well. To the contrary, I believe that John Ashcroft is preVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00432 Fmt 6601 Sfmt 6621 C:\HEARINGS\76342A.003 SJUD4 PsN: SJUD4
419

cisely the type of individual we need in the public arena: a man of strong principles,

of great integrity and intellect, who does not shirk from engaging in public discourse

about the great issues of our day, and does so in a way that demonstrates not only

his respect for others and divergent views, but an absolute and passionate commitment to the rule of law.

Since he is being considered for high public office, we might well ask: How would

the Framers of the Constitution have looked upon a man of this type? The answer

is obvious: We can assume they would have welcomed him as one of their own, for

these characteristics describe those same men as well. I draw this comparison because it is directly relevant to the current debate and to the process of confirmation:

Because the Framers could not foresee every eventuality, they designed a system

they believed would be able to operate under virtually any condition. Being men of

deep convictions and forceful character, their plans assumed that national offices

would continue to be occupied by individuals with strong personalities and opinions,

and especially by persons of faith. Not only were these men veterans of many sharp

political battles, they expected that such conflicts would remain a permanent feature of the national government. I am certain that, far from being concerned, the

Framers would be gratified that, two centuries later, the responsibilities of public

office were still being entrusted to men of John Ashcroft’s caliber.

The system they designed is, of course, famous for its many checks and balances,

from which no public official is immune. Nevertheless, the charge is still made that

these are insufficient to deal with a man of religious conviction, as such a person

cannot be trusted to faithfully execute the laws, especially those which may conflict

with his deeply-held beliefs. On this matter, let me attempt to reassure John

Ashcroft’s opponents by enlisting the very thing they profess to fear most: his religious faith.

As with every other holder of public office, John Ashcroft must take an oath before assuming his responsibilities. In this secular age, when even a hint of religion

in the public sphere can arouse fierce opposition, we keep the religious element in

our oaths, precisely because we understand its importance to the individual: the

pledge is not only being made to the temporal world, but to one’s Creator. Some may

view these oaths as a dusty remnant of a longago age, the final ritual in a succession of formalities in the path to public office. I know that this is not Senator

Ashcroft’s view. I know—and, more importantly, he knows—that when he places his

hand upon the Bible, the oath he will freely take will require him to faithfully execute the laws of the land, even those he himself might find repugnant. If there were

any reservation in his heart regarding his ability to carry out his responsibilities,

if he held some secret plan to betray the duties of his office, he would not take that

oath; he could not take it. He could have no agenda higher than that which his oath

prescribes for him. Such sentiments may appear a quaint notion to some, but they

fill me with great confidence, and I would commend them to you as well.

Some activists have shamelessly played the ‘‘race card’’ and suggested that John

Ashcroft is a racist, at worst, or insensitive, at best. I really doubt that there is any

person who knows him who actually believes these charges. However, apparently

there are some who believe that political advantage may be gained by attempting

to portray him as such. Since the facts will not support a charge of this type, this

goal can only be accomplished through innuendo, by halfspoken suggestions, carried

forward by a cynical conviction that the public can be made to believe anything.

I’m certain we all can see the irony here: Ashcroft is a man whose integrity cannot be seriously questioned, a man whose forthright opinions are a matter of public

record. For this reason, those of his opponents who would seek to discredit him must

adopt an approach which is the very antithesis of the man whose character they

hope to distort: they must imply things without actually saying them, they must

whisper their allegations from the shadows in the hope and expectation that no one

will shine a light on their charges.

Perhaps it would be best to ignore those charges, but I would like to comment

on them nonetheless. I am an African-American woman. I was born in the South

and grew up during a time when the dead hand of the past lay heavily on everyone

who lived there. As a child and as an adult, I encountered racism on a daily basis.

It was no abstract concept to be regretted: it structured every element of our lives.

I lived with it, not merely in its overt, public, legally mandated forms, but in all

of its subtleties, in all of its forms, in every crevice of life it seeped into. I know

all of the shadings of racism; I understand its many manifestations and can see past

the smiling face it often wears.

It is because of this first-hand experience that I can say that John Ashcroft is no

racist. I know there are many who strongly disagree with Senator Ashcroft’s views

on various subjects, and they have every right to make their disagreements known.

To disagree with someone philosophically is perfectly acceptable; as it is to differ

420

with their ideology; indeed, to hold someone accountable for their positions and actions is an important part of the ‘‘advise and consent’’ function of this body. However, all of these things can and should be done in a way that respects the conviction, person and beliefs of those with whom you disagree. This has been a hallmark

of Senator Ashcroft’s career and I hope that the same consideration would be shown

to him.

In 1761, a Boston lawyer, James Otis, wrote, ‘‘The only principles of public conduct that are worthy of a man are to sacrifice estate, ease, health, and applause,

and even life, to the sacred calls of his country. These ... sentiments, in private life,

make the good citizen; in public life, the patriot and the hero.’’ John Ashcroft’s life

has been an honorable and devoted response to the ‘‘sacred calls of his country.’’ I

am pleased to be here today to support his nomination and I respectfully encourage

the Senate to confirm him as the next Attorney General of the United States.

Thank you.

Chairman LEAHY. Thank you, Ms. James. Again, so we know the

schedule, we will go to 6. We will then—unless somebody is in the

middle of an answer, of course, we will reconvene at 9, we will go

without any breaks until we finish, if that is possible.

Ms. James, I hope you heard my opening statement on these,

that no member of this Committee makes the charge of either racial or religious bias when it comes—when it refers to Senator

Ashcroft, and I also stated that we all know better.

I would like to clarify a misperception that has created some

comments during the testimony of Senator Ashcroft about the role

of the late Mel Carnahan, the St. Louis desegregation case. Mr.

Carnahan was the treasurer of the State of Missouri during the

early 1980’s. The state was ordered to make payments to fund desegregation. Under Missouri law the treasurer could be held personally liable for making a payment without the warrant of the

commissioner of administration of the State of Missouri. When Mel

Carnahan was asked to sign a multimillion dollar check, he did ask

on the state’s behalf—he waited for the U.S. District Court to issue

an order telling the commissioner of administration to issue the

necessary warrant, instructing him to do it. Once he had the legal

authority, he went and issued a check, so I did not want anybody

to have the impression that the late Mel Carnahan in any way

sought to slow down the progress of desegregation in Missouri.

And Mr. Taylor, during his testimony, Senator Ashcroft criticized

the Kansas City school desegregation litigation. He said it was not

helping children. So let me ask you something about the St. Louis

desegregation case.

While then Attorney General Ashcroft was litigating that case,

he convinced the Eighth Circuit that the state should not bear the

cost of transferring students from one suburban district to the

other. That part of the court’s order covered only 300 students, who

were just a few months from being in the school year. I understand

that then Attorney General Ashcroft moved immediately to cutoff

the state’s payments for those students, which severely disrupted

the education of those 300 children.

If that is correct, is that something that would have helped children, and how did the court react to that?

Mr. TAYLOR. You are entirely correct, Mr. Chairman. It was during the middle of the school year that then Attorney General

Ashcroft asked the children be sent back to the schools that they

had transferred from, and it would have been enormously disruptive. And the court recognized that it would not have furthered

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their education, and it was probably one of the more blatant of

many actions which did not serve the interest of school children.

Chairman LEAHY. And I understand that he had called the voluntary desegregation plan an outrage against human decency, an

outrage against the children of this state. That was in the St. Louis

Post Dispatch in 6–15–84.

But then I understand that he made political use of the fact that

he was nearly subject to contempt of court from a Federal judge,

saying he had done everything in his power legally to fight the desegregation plan, and to prove his point he said, ‘‘Ask Judge

Hungate, who threatened me with contempt.’’ Is that the words of

somebody who was supporting a plan of integration?

Ms. JAMES. It is not the words of somebody who was supporting

a plan. These were statements he made during a Republican primary against—where he was running against Gene McNary, who

was another opponent of desegregation, and they were in many respects echoing the words that I heard during the 1950’s and the

1960’s during an era of massive resistance.

I should add that Senator Ashcroft not only opposed this voluntary plan, but he also opposed other aspects of the court order

that would require the state to pay money to improve the conditions of African-American children. He opposed funding for a school

improvement plan in the central city, and issued a press release

about that. And he never, never during the course of all the years

that he was involved in the case, offered any kind of alternative

program that he suggested would work better to provide educational opportunity for minority children.

Chairman LEAHY. Thank you. Mr. Henderson, the civil rights

community’s reaction to this nomination is what you have already

stated. How does that compare to previous nominations for Attorney General, including nominations made by Republican presidents?

Mr. HENDERSON. Well, Mr. Chairman, I can assure you that

many organizations within the civil rights community have never

previously opposed an executive branch nominee for either the position of Attorney General, or for that matter, others. This is not

something that is done regularly, very often. It is unusual. And

what makes it especially disappointing in this instance is that

many of us had hoped that with the new election, the opportunity

to bring the country together in the spirit of cooperation and bipartisanship would have been a positive gesture.

Certainly there have been others who have been opposed in the

past, but as I said to you, this is not a general matter that we undertake and we certainly don’t undertake it lightly. And we see this

as an only option when issues of principle, such as those involved

in the direction of the Department of Justice are involved.

Chairman LEAHY. The red light is on, so I yield to Senator

Hatch.

Senator HATCH. Well, let me just say I am pleased to have all

of you here. I have listened carefully to your testimony, and I have

been very interested in it. That is all I am going to say.

Chairman LEAHY. Then we will go to Senator Kennedy.

Senator KENNEDY. Thank you very much. And thanks very much

to the panel for all of your comments.

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Mr. Taylor, I hope Mr. Chairman, that Senator Ashcroft will be

given Mr. Taylor’s testimony and be invited to make comments on

it, so that we have that record. Because what you have said is basically that Mr. Ashcroft said initially the state was not involved.

And you have indicated that they were involved. He indicated that

he had complied with all the court orders. You have given us chapter and verse of the actions that were taken, that would cast considerable question and doubt on that. He also indicated that he was

just conforming to the law, I mean, trying to test the law, and

doing it the way that it should be done, in the court of law. And

your response on that is that the judges that have the responsibility in the court found that these were frivolous. Let me hear from

you what the judges said when he kept repeating and repeating

and repeating, challenging the court orders that were ordering him

to come up with a voluntary desegregation plan.

Was he not ordered in 1980—was there not a court order requiring Attorney General Ashcroft to submit a plan for desegregation

within 60 days?

Mr. HENDERSON. That’s right. And he did not submit the plan,

and—

Senator KENNEDY. Excuse me. Did he submit the plan?

Mr. HENDERSON. He did not submit the plan, and that I think

was part of what led to this court order that I have quoted, which

said that the State had defied the authority of the court and had

resorted to extraordinary machinations in order to resist dismantling the dual system.

Senator KENNEDY. Now, this is how long after Brown v. Board

of Education?

Mr. HENDERSON. This is 1981, so it is 26 years after Brown.

Senator KENNEDY. And spell out what was happening in the rest

of the country? Was the rest of the country moving ahead in terms

of trying to address this complex, difficult, and in many instances

painful situation? I know it wasn’t easy in my own city of Boston.

But were they trying to move ahead in all parts of the country?

Mr. HENDERSON. Well, certainly, and there had been widespread

desegregation throughout the South after the Supreme Court decided the Green and the Swann cases in the 1970’s.

Now, Missouri was one of the de jure States. It was covered by

Brown v. Board of Education, and yet in Missouri in 1980 and

1981, you still had a condition of widespread segregation that the

court felt it had to deal with.

Senator KENNEDY. Well, is it fair to say that it was over 16

years, 8 years when he was Attorney General and 8 years a Governor, that this case wasn’t settled?

Mr. HENDERSON. Well, it was settled over his objection while he

was Attorney General and his appeals were rejected, and then the

State continued, as Judge Limbaugh’s order said, to try to obstruct

implementation and not to fund the settlement that all the other

parties had agreed to and that the court had said, had entered as

a consent decree and said was the law of the case.

Senator KENNEDY. And did at some time this get settled after

Governor Carnahan—

Mr. HENDERSON. Well, then, in the early 1990’s, the State moved

under another Attorney General to bring the case to a close, to

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achieve what was called unitary status. And we went to trial in

1996, and the court then appointed William Danforth as the settlement coordinator in the case, and Danforth had made his own

study, Dr. Danforth had made his own study, found that this was

a very valuable and workable plan, and he suggested—and we then

went by joint—I mean, going to the State legislature, and we got

the legislature by a bipartisan vote and with Governor Carnahan’s

help to approve enough money to carry on the remedy, and then

we entered into a new settlement, which I think is what you are—

Senator KENNEDY. OK. How are the students doing, very quickly?

Mr. HENDERSON. The students are doing—most of the students

are doing fairly well. The students who have transferred to the

suburban school systems—and I have to tell you that, contrary to

what I think Mr. Ashcroft said, 75 percent of these kids are poor.

They are free and reduced price lunch eligible students. They are

graduating high school at twice the rate of students in the city of

St. Louis and students in other places, and they are going on to college at a very great rate. So they are doing well, and that program

is working well.

Senator KENNEDY. Finally, Pastor Rice, we want to thank you for

your testimony and for your presentation. You are a man of deep

faith and obviously committed to your community and equality for

all.

Yesterday, we heard Senator Ashcroft respond to questions regarding his interview with Southern Partisan magazine and his

speech at Bob Jones University. Both took place while he was representing Missouri in the U.S. Senate, a State with approximately

500,000 African-American residents. Would you tell the Committee

what impact those events had on African-Americans in your St.

Louis community? Were they surprised or hurt? Did they care?

Rev. RICE. Yes, Senator. They were past surprise. They were devastated, and they cared greatly. Not only did they care greatly, several petitions had been offered to the Senator through several different grass-roots organizations asking him to return that honorary

degree to the Bob Jones University, and to this point, we have gotten no response. And so it was hurting and devastating to many

of our community.

Let me just say for the record that some say that we cannot

speak in one voice, but I want to say that it was over 93 percent

of the St. Louis and St. Louis area and Missouri of African-Americans that voted against John Ashcroft in this last November election. I think that is pretty close to a good voice.

Chairman LEAHY. Senator Specter?

Senator SPECTER. Thank you.

Mr. Taylor, you have an extraordinary record for civil rights beyond any question, and I compliment you for that.

Mr. TAYLOR. Thank you, Senator.

Senator SPECTER. Senator Danforth, former Senator Danforth,

testified yesterday that Senator Ashcroft in the litigation was doing

his job as a vigorous advocate. Would you have any suggestion for

how a Senator would evaluate the difference in judgments between

you and Senator Danforth, without going into the voluminous

424

records and practically relitigating the case, at least on an individual basis?

Mr. TAYLOR. Well, I appreciate your remarks, Senator. I think

the best way is to look at what the court said about then-Attorney

General Ashcroft’s performance, and I am not sure you were here

when I— Senator SPECTER. I was here. The follow-up question to that is:

Did the court ever hold him in contempt?

Mr. TAYLOR. No, but it said that it was prepared to hold him in

contempt, and it said that he had defied the orders of the court and

engaged in extraordinary machinations.

Senator SPECTER. I heard you said that before, and those are

tough words. Did the court ever impose sanctions?

Mr. TAYLOR. No. What happened after that was the Attorney

General turned in—his responsibility was to turn in a plan, a voluntary plan, and the court looked at it and found it so sketchy and

inadequate that it just decided to disregard it and go forward with

the effort without the State’s participation to bring about voluntary

desegregation.

Senator SPECTER. Mr. Taylor, I raised the question as to whether

the court ever acted—they can act, they can hold you in contempt,

they can impose sanctions. When I was district attorney, I was held

in contempt of court 1 day for pressing a sentence on a narcotics

pusher, Arnold Marks, who got a life sentence when he had 280— he has several hundred thousand dollars’ worth of heroin. So if a

prosecuting attorney gets out of line in the eyes of the court, there

are sanctions.

So I just wonder why, if it was all that bad, no sanctions were

imposed on Ashcroft.

Mr. TAYLOR. Well, I think, Senator—I mean, I cheerfully concede

that he was never held in contempt, and as far as I know, he was

never sanctioned under Rule 11. But the court did evaluate his performance, and the record speaks for itself about how many times

he sought to file motions, to relitigate questions that were already

settled, and to do other things that the court said added up to a

record of defiance.

And I don’t know—you know, I don’t think the sole standard is

contempt. I would note that I am not sure what kind of attention

former Senator—

Senator SPECTER. Mr. Taylor, let me pose it from a little different

angle because there is very limited time here. Missouri is a pretty

moderate State. In my day here, they sent Eagleton and Danforth

and Bond.

Mr. TAYLOR. Right.

Senator SPECTER. And shortly before I came, they sent Symington. It is a State with a very moderate background, and Senator

Ashcroft was elected five times, twice as Attorney General, twice

as Governor, then again as Senator. If his conduct was so palpably

outrageous, how in a moderate State could he be re-elected? If a

Senator in Pennsylvania did what you say Ashcroft did, he couldn’t

be re-elected. And I think there are a lot of similarities between the

States.

Mr. TAYLOR. Well, I might defer to my friend, Reverend Rice, to

answer that question, but I would note that, moderate as it may

425

be, Missouri has a very long-term history of racial discrimination,

which it has been struggling to eliminate. And some of the seminal

cases, back to Jones v. Mayer and other cases of discrimination,

came to the Supreme Court from the State of Missouri.

I can testify, Senator, because I spent a lot of time out there,

that race relations have been in a very difficult state.

Senator SPECTER. I have one more question—and the warning

light is on—for you, Mr. Woodson. You have heard what Mr. Taylor

has had to say, and at least in his view—and he is a man of substantial standing in the civil rights area and describes Senator

Ashcroft’s conduct in very extreme terms. You say the AfricanAmerican community doesn’t speak with a single voice. How would

you justify Senator Ashcroft’s conduct in light of what Mr. Taylor

has said?

Mr. WOODSON. There has never been— Senator SPECTER. May the record show my red light just went

on.

Mr. WOODSON. There has never been any single-mindedness on

the issue of desegregation. Polls continually suggest, point out that

in the black community from the late 1960’s to forward, 50 to 60

percent of black Americans support desegregation in principle, but

object to it in strategies in which it is carried out.

Senator KENNEDY’s own city of Boston, in 1973, Judge Garrity,

before he made his ruling, asked the community, Matapan and Jamaica Plain and all the grass-roots people, people who were suffering the problem, what they wanted. There were town meetings all

over the city for about 9 months. The people in the community

came back to Judge Garrity and said: We wanted the neighborhood

schools strengthened; we do not want busing.

But the civil rights leaders told Judge Garrity, forget about the

will of the majority of black Americans who said they didn’t want

busing, order the buses to roll, even though not a single civil rights

leader had their children on those buses. They were in private

schools.

And I recall, when I went there on behalf of the National Urban

League to monitor this situation, talking to some of the white parents and some of the black parents. What we were doing, they said,

is taking kids, black kids out of schools where there was a higher

proportion going on to college and sending them into Southie,

where white parents said bring your children into these schools,

they will graduate as dumb as our kids.

But there has always been tension. In Atlanta, Georgia, the

NAACP leader there struck a deal for the Atlanta plan. They negotiated to get a higher per capita expenditure on the black schools,

and he was fired because—so that there is no moralistic thinking

in the black community on the issue of busing. A large majority of

blacks are opposed to forced busing for integration.

Chairman LEAHY. Thank you.

Mr. TAYLOR. Senator, I need 15 seconds, at the risk of offending

the Committee. In St. Louis today, and in recent years, 12,000 to

13,000 children get on buses every day to go from the city to the

suburban schools. Their parents have decided that they are getting

a better education that way. So whatever statistics may be cited,

those are the facts in St. Louis.

426

Chairman LEAHY. Senator Hatch and I have said we will come

back at 9, but I understand Senator Feingold just wanted to make

a statement.

Senator FEINGOLD. Mr. Chairman, I know that there is no time

for my round at this point. I don’t want the day to end without

briefly first thanking all the panel for coming, including Ms.

James. But I can’t let the day end without just commenting on this

notion that somehow the opponents of Senator Ashcroft have engaged in religious profiling.

Now, I decided to say some kind things about Mr. Ashcroft, including—I made the mistake of saying I had a good working relationship with him. And as a result of that, we have had a lot of

meetings with a lot of people I care a lot about, both in private and

in public, with every single group. Every single time not a single

one has ever said anything about his religion other than to praise

it, other than to admire it. This takes things to a level that I think

is unacceptable, and as somebody that is, frankly, right in the middle of this, that is an unfair accusation with regard to the opponents of Senator Ashcroft.

I appreciate it, Mr. Chairman.

Chairman LEAHY. Well, with that, as we have stated—and I have

found no objection from Senator Hatch on this—there is nobody on

this Committee on the other side that has attributed the kind of

racial things—

Senator HATCH. I agree with you—

Chairman LEAHY.—To Senator Ashcroft, and I agree with what

the Senator from Wisconsin has said. Really I resent very much the

suggestion that we raised any question about Senator Ashcroft’s religion, because I hold my religion very, very dear to me, and I

would resent anybody holding that against me. And I resent very

much any suggestion that if you question a person’s politics, their

positions, their steps, the things they might do as Attorney General, that somehow you are attacking either their race or their religion. That has not happened from either Republicans or Democrats

in this Committee, and I want that very, very clear.

Senator HATCH. Well, let me just say this: I interpreted Ms.

James as saying that some of the commentators and others have

been bandying this around like it is reality. I haven’t heard anybody on the Committee or anybody in the Senate make any improper remarks.

Senator SESSIONS. Mr. Chairman, on that subject, I think the

tone of some of the remarks that have been repeated, like deeply

held beliefs, deeply held beliefs, and things of that nature, have

suggested that because he has a rich religious faith that somehow

he can’t work within a legal system and comply with the law. That

is my sensitivity to it. I think it has been suggested—

Chairman LEAHY. You are hearing a trumpet—

Senator SESSIONS.—And it is all right for this witness to reply

to it. That is all I was saying.

Chairman LEAHY. You are hearing a trumpet that the rest of us

do not hear.

Senator Hatch and I have both stated and made it very clear

that neither we heard from this panel anybody who ascribes either

427

religious or racial bias to Senator Ashcroft, nor have we heard him

say that about any of us.

With that, we will stand in recess.

[Whereupon, at 6:09 p.m., the Committee was adjourned, to reconvene at 9 a.m., Friday, January 19, 2001.]

(429)

NOMINATION OF JOHN ASHCROFT TO BE

ATTORNEY GENERAL OF THE UNITED STATES

FRIDAY, JANUARY 19, 2001

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Committee met, pursuant to notice, at 9:07 a.m., in room

SR–325, Russell Senate Office Building, Hon. Patrick J. Leahy,

Chairman of the Committee, presiding.

Present: Senators Leahy, Kennedy, Feinstein, Feingold, Schumer, Durbin, Hatch, Grassley, Specter, Kyl, DeWine, and Sessions.

Chairman LEAHY. Some have asked whether we are going to be

able to finish all the witnesses scheduled today. We are going to

finish all the witnesses, and Senator Hatch and I are determined

to try to keep everybody on timee, ourselves included. And so I am

going to ask Senator Hatch to help with the people on his side of

the aisle, and I will work on the people on our side of the aisle.

Judge MASON. We expect that you are going to speak softly.

Chairman LEAHY. Speak softly. That is Judge Mason’s suggestion, speak softly, but I am carrying a big stick.

Senator Feingold is next to be recognized. Senator Feingold?

Senator FEINGOLD. Thank you, Mr. Chairman. And, again, I

thank the panel.

What I would like to start with is to ask the panelists who are

opposed to the nomination to say a little bit about some things that

have been suggested to me over this process about Senator

Ashcroft. What some folks were saying to me at the beginning was

that he switched dramatically in his ideology and his approach in

the last couple of years, that he became much more conservative

and much more ideological for purposes of political reasons or

whatever it might be.

During the hearings themselves, though, what seems to have

been presented is more of a picture of somebody who has been consistently somebody who is what some refer to as very much on the

right or very hard right and very aggressive about it.

I would like the three of you to address which is more accurate

in your view, starting with Mr. Henderson.

Mr. HENDERSON. Thank you, Senator, and good morning. It is a

difficult question because the dichotomy that was in evidence here

in the hearing room between Senator Ashcroft’s presentation to the

Committee and the record of Senator Ashcroft accumulated over a

30-year period presented a very stark contrast.

To be perfectly frank, and meaning no disrespect to Senator

Ashcroft in any way, his moderation was such that, you know, he

430

sounded as if this were a Clinton administration nominee to head

the Department of Justice because of his emphasis on fairness and

integrity and the desire to enforce the law as written. And yet, in

looking at the zeal with which he enforced his responsibilities as

Attorney General, as Governor, and during his term as a Senator

here in the U.S. Senate, he showed a zeal, a passion, all of which

is absolutely appropriate and a reflection of his personal views, but

which pose a problem when, in fact, he is assigned responsibilities

for enforcing statutes for which he has had the most significant

hostility in terms of his previous statements.

It is hard to evaluate which of the two Senator Ashcrofts in

evidence— Senator FEINGOLD. But it doesn’t sound like you see a dramatic

shift as having occurred when he became a United States Senator.

Mr. HENDERSON. I really did not, Senator. Now, in fairness, I am

not a personal acquaintance of Senator Ashcroft in any way. I can

only evaluate the record accumulated over a period of time. But it

is, I think, the record that has to be the basis of our reliance on

what we can anticipate if and when Senator Ashcroft were to assume the position of Attorney General.

Senator FEINGOLD. Pastor Rice?

Rev. RICE. I think that there is a level of consistency, and it has

been consistently, in our view, even as Attorney General, even as

the Governor, and now as Senator, against those positions that African American views and against what I would consider the sensitivity of African Americans. He was consistent and very strong in

opposition against the voluntary desegregation of the city of St.

Louis for our schools and our children, his insensitivity toward the

inflammatory remarks made to Judge Ronnie White, and then several times has given opportunity—I know our chairman, and others

on this side of the aisle, has asked him to even return his honorary

degree, and to this point he has refused to do that. That flies in

the face of a community which he represents. And then his inconsistency as far as voter registration in the city of St. Louis.

So I would look at those views as that he has been opposed to

many issues that African Americans care about.

Senator FEINGOLD. Thank you.

Mr. Taylor?

Mr. TAYLOR. Senator Feingold, I have not followed the twists and

turns of Mr. Ashcroft’s career throughout, but I did know him, I did

know his work and his positions beginning in—at the end of the

1970’s and the beginning of the 1980’s. And I have to say to you

that, however you characterize these ideologically, he was strongly

in resistance to vindicating the rights of children that had already

been declared by the courts.

Senator, I thought you set up a good stand on the first day of

the hearings when you said that the test ought to be whether the

nominee will take care that the laws be faithfully executed, because that is the President’s duty and that is carried out through

the Attorney General more than anybody else. And I would say you

have to look at the whole record rather than any confirmation day

pledge in that regard.

I don’t have to remind the Committee of this, but it is not just

Federal officials but State executive and judicial officers who are

431

bound by the Constitution and have to take an oath to support the

Constitution. That is under Article VI, section 3 of the Constitution. And I would submit to you that Senator Ashcroft did not carry

out those duties as Attorney General, that he was so in defiance

of the law as to permit no other conclusion that he did not carry

out his constitutional responsibility.

Senator FEINGOLD. I take it you feel he is not capable of faithfully executing the laws of this country.

Mr. TAYLOR. I would say you have to make that judgment in

terms of the record, and I think the record is pretty clear.

Senator FEINGOLD. Thank you, Mr. Chairman.

Chairman LEAHY. Thank you.

I apologize to my two colleagues. I have forgotten who was next.

Has the Senator from Ohio already asked questions?

Senator DEWINE. I have no questions, Mr. Chairman.

Chairman LEAHY. The Senator from Alabama.

Senator SESSIONS. I would just want to point out that in his remarks on the floor about Judge White, there were some comments

that he had called him pro-criminal or called Judge White that

kind of name. But it is quite clear—and I am reading from his

statement: ‘‘I believe Judge White’s opinions have been’’—‘‘and, if

confirmed, his opinions’’—I am quoting directly—‘‘his opinions on

the Federal bench could continue to be pro-criminal and activist.’’

And that was his concern, that the opinions were that way. Now,

maybe it is reported a different way, Reverend Rice, and I appreciate your concern, but it is difficult—in shorthand, say pro-defendant and pro-criminal, bleeding heart liberal. I mean, how do you

describe an opinion that tilts in your view more to the criminal side

than the other? And I don’t think he meant that in a mean-spirited

way. I just wanted to point that out.

Mr. Taylor, I know you were the litigation and the lawyer and

a long-time person involved in this spasm of a case that lasted for

decades—over a decade, I guess, and it was intense. But in my

view, I do not believe it is fair to say that John Ashcroft didn’t care

about children and education because he resisted your idea of what

the kind of settlement in that case ought to be.

By the way, you indicated yesterday—and I wasn’t sure of your

testimony—about a Federal district judge criticizing certain State

filings. Do you remember going into that yesterday?

Mr. TAYLOR. Yes, I do, Senator.

Senator SESSIONS. And I believe you indicated those were in

1985 to 1992?

Mr. TAYLOR. Yes, but what I said—

Senator SESSIONS. Yes or no? Yes or no?

Mr. TAYLOR. This was during the period when Mr. Ashcroft was

Governor. I did make—

Senator SESSIONS. All right. Well, when he was Governor, the filings that you criticized him for yesterday were when he was Governor, not Attorney General?

Mr. TAYLOR. I thought I carefully distinguished between what

the court said during the period when he was Attorney General

and they were dealing with his conduct directly and what Judge

Stephen Limbaugh said during the period when Mr. Ashcroft was

432

Governor. If I didn’t make that clear, I will make it clear right

now.

Senator SESSIONS. Well, I didn’t pick it up. Someone raised the

question after the hearing, and we began to look at it. And isn’t

it the Attorney General that is the lead lawyer, the litigator for the

State of Missouri?

Mr. TAYLOR. That is correct, and in my testimony I say—I think

if you check the record, you will find I am correct. In my testimony

I say I have no way of knowing what Governor Ashcroft’s personal

participation was in these matters. But I do say that it was a continuation of the policies of resistance and evasion that occurred

when he was Attorney General.

Senator SESSIONS. Well, pardon me if I am offended. Pardon me

if I am offended that you say now you don’t know what his personal motives were and he wasn’t the Attorney General, he—let me

finish—he was the Governor, and these filings that you complained

about and made a big deal about yesterday were not filed in his

name, were filed in the Attorney General’s name, successor Attorney General. And I believe that was an unfair, subtle

mischaracterization that very few people hearing your testimony

would have missed, and I believe it was stated in a way that you

understood what you were doing, in my opinion.

Mr. TAYLOR. No, Senator, you— Senator SESSIONS. You are still a lawyer. I don’t believe you

would have left that— Can the witness answer the question, please? Could he be entitled to fairness— Chairman LEAHY. The witness is entitled to answer the question.

Mr. TAYLOR. Senator, that is simply wrong. I quoted— Senator HATCH. The comments, too, of the Senator.

Mr. TAYLOR. I quoted statements that were made by Judge

Hungate in 1981 and Judge Hungate in 1984 when Senator

Ashcroft was then Attorney General. Those are the bulk of my

statements. At the end I quoted some statements by Judge

Limbaugh when Senator Ashcroft was then Governor. I don’t think

I misled anybody in any way, and I think if you review the record,

you will find that is the case.

Senator SESSIONS. Well, I was misled. Maybe most—you had to

listen very carefully not to have been. I just think you as an attorney in the case could have made it much more clear had you desired to do so.

Mr. Chairman, I think my time is about up.

Mr. TAYLOR. May I just answer the first thing you said, Senator?

Senator SESSIONS. Yes, sir.

Mr. TAYLOR. You said that Mr. Ashcroft just opposed my solutions in the case. I point out to you that all of these quotations

were from judges and that he never offered any alternative to the

plan that was adopted and agreed to by 22 suburban school district, the city Board of Education, and the class of plaintiffs.

So I think the record will stand for itself on that.

Senator SESSIONS. Well, let me just add that, with regard to this

order that you pointed out, just briefly—my time is about over, but

it did direct—the order was to all government agencies, not just—

the Attorney General wasn’t the one—the Attorney General can’t

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do a plan that the other government agencies who are defendants

don’t participate in effectively. Am I correct?

Mr. TAYLOR. That is correct, Senator, but the court noted at one

point that the Attorney General was thwarting the ability of the

Department of Education to cooperate, that the Department of

Education wanted to cooperate in the development of a plan, but

essentially Mr. Ashcroft as Attorney General was directing them

not to cooperate.

Senator SESSIONS. That is not what the court order said.

Mr. TAYLOR. I will furnish that for the record, Senator.

Chairman LEAHY. Again, I apologize to my colleagues down here.

I have forgotten. Has the Senator from New York—have you questioned this panel?

Senator SCHUMER. I have not.

Chairman LEAHY. And the Senator from Illinois, have you?

Senator DURBIN. Yes.

Chairman LEAHY. You have not?

Senator SCHUMER. No. I am ready to.

Chairman LEAHY. OK. The Senator from New York?

Senator SCHUMER. Thank you, Mr. Chairman. Before I ask my

questions, I just want to make a comment. I wasn’t here for the

discussion of religion, and I just want to make a statement here

based on what happened last night.

First, I want to say I think that a person of deep doctrine, someone who had a deep faith, is an admirable person, and I respect

it. I believe in God myself, and when God is talked about by public

figures, I think that is a good thing. When Joe Lieberman did it,

I was proud of that. I am proud when anyone of any faith—Christian, Muslim, any other faith—talks about God. I think that is a

good thing. I think all of us and all of our families can use more

of that.

That has very little to do with carrying out the laws of the land,

and we have a separation of church and state. And for those who

think that because someone has deep religious beliefs they

shouldn’t be asked when they are nominated for Attorney General,

whatever religion they are, will they carry out the laws of the land,

even if those might conflict with some elements of their faith, they

are sadly mistaken. That is our obligation here. We are not a theocracy. We are a democracy where many people of deep faith participate, and participate actively, as they should. That is healthy for

the democracy.

But I think to cross the line and say that we shouldn’t ask questions about how someone will enforce the law, no matter what their

faith is, or if they are an atheist, is wrong.

I mean, if there were a Quaker nominated to be Defense Secretary and that Quaker was a devout pacifist, we would be obligated to ask questions about whether they would try to unilaterally

disarm the country, and no one would object to that. And it is the

same thing here. So I just think we ought to put that argument

to rest.

Let me ask a question. I would like to ask this particularly of

Mr. Henderson and of Pastor Rice, but anyone can join in.

There has been a lot of conversation and feeling that, given the

election, given what happened in Florida, given, frankly, this nomiVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00447 Fmt 6601 Sfmt 6601 C:\HEARINGS\76342A.004 SJUD4 PsN: SJUD4
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nation, that African Americans, the African American community,

by and large, feels aggrieved, not part of the process, not treated

accurately—not treated fairly, and is worried, I guess, about the future, and a lot of our discussions here involved civil rights and the

whole issue of race, which, as de Toqueville pointed out in 1830,

was the poison of America.

I would like to ask first Mr. Henderson, but then others, a few

things that you would recommend President-elect Bush to do and,

if he were to become Attorney General, Attorney General Ashcroft

to do to help heal that divide. I would like Mr. Henderson to go

first, but I would open it up to anybody in the panel in that regard.

Mr. HENDERSON. Senator, thank you. That is a difficult and very

challenging question.

I think as you will hear in the course of discussion in response

to your question, African Americans have a variety of views on

issues affecting our community. Having said that, however, I do believe that one can discern from the vote in this past election the

depth of commitment in at least this instance to one of the two

major Presidential candidates, and obviously we know that it was

not the winner of this election.

The question of alienation among African Americans from a political perspective I think is very much in evidence. The desire to participate fully in the democracy of our country, to participate fully

as participants in the body politic, is very, very strong, and it accounted, I believe, for the tremendous surge in voter registration

among African Americans, particularly in communities where

issues affecting the lives of ordinary people ran deeply, in Florida,

in Missouri, and many States around the country.

I believe that the reports of voter irregularities, disenfranchisement among selected communities, both African American but

other communities as well, indeed did reinforce a sense of alienation among some African Americans. And it has raised profound

questions about whether we are full participants in the body politic.

If this had happened in 1865 or 1877, that would be a different

matter. But this was in the year 2000, and so it really did reinforce

in a very deep way the degree to which we are not full participants

in the body politic.

We turn around now to look at appointments to be made by the

new President, and the first among them in terms of a position

that has broad impact on domestic policy and the enforcement of

laws affecting every citizens is indeed the Attorney General. And

I have attempted to distinguish the Attorney General’s appointment from other Cabinet officers, not to say that other officers

aren’t important, but that the Attorney General’s position has a

special relevance.

Having said that, one would have expected a conservative. There

is no question about it. You know, there is no question that we expected a conservative appointment. But conservative appointments

are very distinct. A Senator Orrin Hatch is one kind of conservative appointment that people have great respect for and in positions of leadership, but that is not what we got. And the distinction

I draw is one of fairness and balance, a willingness to reach out,

to listen to people of the other side, even where you may have a

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fundamental disagreement. And to have a candidate who has a

record of not enforcing—let me take that back—of engaging in provocative activity around fundamental issues, whether it is school

desegregation, voter rights and voter participation, the issue of integrity in how the nomination not just of Ronnie White but of other

Presidential candidates was handled, all of that raises profound

questions of what kind of leadership we can expect at the helm of

the Department if this nomination is confirmed.

And so, you know, to be perfectly frank, I think that the skepticism and, indeed, the opposition to this appointment which is

heard in many quarters in the African American community is

grounded on the solid evidence of a public career accumulated over

30 years, that this is an individual whose sensitivity to the concerns of our constituency, of our community, notwithstanding gracious gestures that he may have taken with respect to his personal

participation in various programs—we are talking now about policy, not about an individual’s personal predilections to support particular programs. And in that respect, from a policy standpoint, we

are saying that there are real concerns and they are grounded in

the evidence that the record supports.

Chairman LEAHY. Thank you.

Senator SCHUMER. Mr. Chairman, could I just ask unanimous

consent—because I know Mr. Woodson wanted to say something.

Chairman LEAHY. Oh, I am sorry. I didn’t realize— Senator SCHUMER. But maybe I could ask unanimous consent

that everybody be allowed to submit answers to this in writing.

Chairman LEAHY. Also, if somebody—I don’t want to cut any of

the answers off. I am cutting off the questions, but I don’t want to

cutoff the answers. Did you want to say something, Mr. Woodson?

Mr. WOODSON. Yes, I did, because I think— Senator SCHUMER. And Pastor Rice.

Chairman LEAHY. You and Pastor Rice, whoever wants to go

first. Pastor Rice, then Mr. Woodson.

Rev. RICE. Thank you, Mr. Chairman. And, Senator, I think the

question can be answered at least from our perspective as clergy

and those that are responsible for several thousands of individuals

in the State of Missouri that are members of the faith community.

Let me say that this divide is greater than what I have ever witnessed in my lifetime with Senator Ashcroft. And, quite frankly, I

would say that there are so many other qualified individuals in the

Republican Party. I think that John Danforth and, of course, Senator Hatch and—I could go on and on, a litany of groups that

would be qualified.

But I think that if you were to ask me what I would recommend

humbly to now President-elect Bush, it would be to pull this one

off as Attorney General, find another slot for the Senator, and to

find someone that was not quite so controversial. This would allow

us to do what one of his mandates says, and that is to pull our Nation together and to do what I think really needs to be done so that

we can become more like one America. That would be my suggestion.

Mr. WOODSON. Yes, let me just say it is just fascinating, Senator

Feingold, when you asked the question about whether or not he is

hard right, as if that is a pejorative. But we don’t ask that of

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those—we can understand bigotry if it is closed in right-wing rhetoric, but we don’t say this about the left, as if bigotry cannot be

expressed on the left.

Let me just say this about the black community—and, again, everybody would be offended if somebody were to say, well, what is

the opinion of white America on issues. There is no single opinion

of white America, and there is no single opinion of black America.

So I wish you would qualify it as far as the aggrieved.

I have submitted as a part of my testimony surveys by the Joint

Center for Political and Economic Studies that surveyed the attitudes and priorities of black America, and what these surveys revealed, 28 percent, crime and violence; education, 32 percent;

health care, another 20 percent; 2 percent registered race as the

primary concern of them. And what you had in this campaign is

a hate-filled, bigoted campaign that characterized George Bush as

a bigot and as a racist, and that kind of—yes, I am talking about

the ads showing a pickup truck dragging and chain and saying that

because George Bush voted against hate legislation, he is a bigot.

I mean, you should have heard the black talk shows.

The point is that black America’s concerns are not defined by

what you are describing here in terms of voter interest. The first

three witnesses before the Civil Rights Commission were three

black people who presented no evidence that there was any kind

of conspiracy to deny them the opportunity to vote. And so I think

that this is a red herring on the whole issue that somehow black

America is sitting around their dining tables preoccupied with

voter education. They have many more issues of concern. Nine

thousand blacks are killed by other blacks in America, and only

nine die as a consequence of hate crimes. The issue is what are our

priorities in this country, and I think that is an important issue to

put on the table.

We have found in our experience that Senator Ashcroft addresses

the issues of faith-based healing agents, has been very supportive,

and we think he will make an outstanding Attorney General, and

that is the opinion of some black Americans who differ from other

black Americans.

Senator SCHUMER. Thank you, Mr. Chairman.

Senator FEINGOLD. Mr. Chairman?

Chairman LEAHY. Yes.

Senator FEINGOLD. I would just like 10 seconds to respond to the

reference to my remarks.

Chairman LEAHY. Go ahead.

Senator FEINGOLD. Mr. Chairman, I certainly did not refer in a

pejorative way to John Ashcroft or his conservative views or views

to the right. In fact, I stated specifically that I don’t think conservative viewpoints, ideology, or votes is a sufficient basis to reject the

nomination. All I asked was whether there had been a dramatic

change in his approach since he became U.S. Senator, and I would

like the record to reflect that.

Chairman LEAHY. Thank you.

Mr. TAYLOR. Senator, can I give a brief answer to Senator Schumer’s question?

Chairman LEAHY. Yes. And then we will go to the Republican

side.

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Mr. TAYLOR. I just want to—there are many things, Senator, but

I just want to offer one, and that is that I hope that whoever is

the Attorney General of the United States will carry forward the

policies embodied in Brown v. Board of Education, and in the Civil

Rights Act of 1964, and promote the diversity and desegregation of

public schools.

We have recently found the most curious and painful development, and that is after all the years of seeking to achieve compliance, there are a few Federal courts that are holding that if a— that if local officials seek to desegregate their schools and diversify

their schools, they are improperly taking race into account.

This administration has fought—the current administration, the

outgoing administration has fought to maintain diversity in the

public schools. President Clinton said that the alternative to integration is disintegration.

This has been the battle—you know it as well as I—for—it’s a

century-long battle to end racial divisions in schools and in other

aspects of our society, and it is very troubling at this point that it

is coming back again in this form and in the form of a person being

nominated for Attorney General who has a record as supporting

segregation over so long a period of time. So that would be my hope

for whatever happens in the future.

Judge MASON. Could I have just a couple of minutes to respond

to Senator Schumer’s question?

Chairman LEAHY. Excuse me, Judge. I have no objection. Senator

Kyl is next, but go ahead.

Judge MASON. The question was what we recommend. First off,

without doubt, since we clearly have a national interest in how our

President is elected, there should be a discussion about the national process or some sort of acceptable standards to the electoral

process, so that people in Wisconsin can be assured that the electoral votes won in Florida were done fairly and vice versa, and that

should be thoroughly investigated by you. We should look at the

types of machines in municipalities that we use to count votes to

make sure that in the poorest areas of our country’s there is equal

access to effective voting processes that would be available to richer

areas. And certainly, that’s a national policy that we should begin.

We should encourage civil organizations that engage in voter registration to work equally as hard with voter education, so when

people go into the polls they know something about a butterfly ballot, if it’s still being used; they understand the importance of pressing hard so you don’t have the dimpled chad or the pregnant chad,

whatever you want to call it, and their vote will have a greater

likelihood of being counted. Those are three things that can be

done on a national level that I think could be very, very effective.

Two quick points. John Ashcroft has never been in favor of segregation. OK, he’s never been in favor of segregation. I’ve never

heard that man once say, ‘‘I don’t want my kids going to school

with black kids’’, or anything like that. You have to understand the

nature of St. Louis, how the boundaries at the seat of St. Louis are

very limited, how we have 70 or 80 other school districts outside

the city of St. Louis, and the difficulty of forcing those school districts, which were the beneficiaries of white flight from St. Louis,

to get their kids to go back into St. Louis. Many black people in

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St. Louis have said time and time again, ‘‘Why don’t we improve

the schools in St. Louis so that the white residents of St. Louis,

who are sending their kids into private schools and Catholic

schools, would look at the public schools as a viable alternative?’’

That’s where the integration would have been successfully occurring in the city of St. Louis, rather than when people who made

their personal decision to live elsewhere—and their motivations

may have been poor motivations, but nonetheless, you can’t make

people move. And that was one of the serious problems, which

quite frankly, has never really been discussed or addressed.

Finally, I don’t think anyone on this panel would say that a person who was a zealous prosecutor shouldn’t be a judge, or a zealous

public defender shouldn’t be a judge. And Ashcroft was a zealous

Attorney General, granted. I don’t know if I would have done it the

same way, but I may have done some other things differently.

Nonetheless, we should not get in the business of saying that because somebody was a zealous lawyer, which they have a professional duty to be, that they cannot now set that aside in a different

role. Otherwise, you would never have anybody who was a zealous

advocate ever become a judge, especially a prosecutor or a defender, because people will assume that they are not capable of setting that aside, and we’re called upon to do that all the time with

judges. Many times I have made decisions as a judge that I would

not make as a legislator, because the law is the law is the law. It

is nonpartisan. And if you have somebody who comes before you

and swears to you that they will follow the law, and you have no

reason to think that they are a liar to you, then I think the appropriate approach is to advise the President over how that person

should proceed, but to give the President your consent to their appointment.

Chairman LEAHY. Judge Mason, many would agree to that. I recall Bill Lann Lee coming before this Committee and swearing to

uphold the law, and being told by Senator Ashcroft and others he

did not believe him.

Mr. TAYLOR. That’s politics and vengeance—

Chairman LEAHY. Let me finish. I am not talking about politics

and vengeance. I am talking about Senator Ashcroft’s standard, the

standard he has established on this.

Incidentally, on your point on voting machines and so on, I might

add one thing, that I would hope that all of us Republicans and

Democrats could agree on, that we try to find some way to provide

funding to the states so that each state could have one uniform

way of voting within their state. I am not talking about a national

thing that says Arizona has to have the same ballot as Vermont,

but that within a state that they could have the same kind of ballot. Then you could give the same kind of education to everybone,

about what the ballot will look like, whether the voter is in a poor

section or a rich section, whether the voter is white, black or anything else. All areas, all polling areas would have the same access

and the same up-to-date equipment, not just the affluent areas versus the poor areas, but every part of the state, no matter where

you vote, affluent area, poor area, minority, non-minority, Republican, Democrat, every single place you vote is precisely the same,

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the same type of equipment, the same type of ballot. I think we

would all be better off with that.

Senator Kyl?

Senator KYL. Thank you, Mr. Chairman. I do not have any questions. I do have two comments, one in view of what you just said

with regard to what you attribute to John Ashcroft as his standard.

He has denied it, but you are attributing to him a standard with

respect to ideology, and frankly, I do not know whether you disagree with the standard or not because you seem poised to apply

that precise standard to his confirmation here.

I would also ask my friend, Chuck Schumer, respectfully, to reconsider a view that he expressed a moment ago, that we have reason to question Senator Ashcroft’s potential service because of his

religious beliefs.

Senator SCHUMER. I did not say that. I did not say that.

Senator KYL. Well, I thought that is precisely what you said. If

you would like to clarify it before I finish my comment, I would be

pleased to have you do that.

Senator SCHUMER. I would. Let me clarify it right here. It is not

because of—I respect his religious belief. We should ask any nominee for Attorney General whether they could enforce the law, and

it is not because of his religious beliefs. It is because of what in

his public life he has advocated in the past.

Senator KYL. Well, I hope that that is the case.

Senator SCHUMER. And I think—if I might continue—that Senator Ashcroft accepted that premise when he answered the question. And I did not say he could or could not. I was just asking him

the question.

Senator KYL. Well, let me tell you why I raise the issue, Senator

Schumer, because you said, ‘‘For example, we would question a

Quaker about whether he would provide for a strong defense because of his belief in peace and so on.’’ I thought what you were

saying is that there might be something in the religious beliefs of

a candidate that would cause us to question him about those beliefs.

Senator SCHUMER. No.

Senator KYL. Now, if I misunderstood the purport of your

question—

Senator SCHUMER. You did.

Senator KYL. Then I am pleased not to ask you to question your

view, but that is the way I heard it.

Senator SCHUMER. OK. Yes, you misinterpreted what I said.

Senator KYL. I am pleased that we are not then inquiring into

the qualifications or the potential service of a person because of his

religious beliefs.

Senator SCHUMER. No.

Senator KYL. Thank you. Thank you, Mr. Chairman.

Chairman LEAHY. Again, I beg the pardon of the senior Senator

of California. I cannot recall, did you question this panel yesterday?

Senator FEINSTEIN. No, I did not.

Chairman LEAHY. You did not. Then you would be next, and then

Senator Durbin would be next.

Senator FEINSTEIN. Thank you very much.

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I would like to ask Mr. Taylor a question. As one who represented the NAACP in the St. Louis school segregation case, I

think you have described Senator Ashcroft as an—and I quote—‘‘a

bitter opponent of school desegregation.’’ The question I would like

to ask is in his response to Senator Kennedy, Senator Ashcroft contended that his actions were based on fiscal considerations as opposed to any opposition to desegregation. What is your reaction to

this response, and what facts can you present to us in this area?

Mr. TAYLOR. Well, Senator, one, when Mr. Ashcroft, in 1984, ran

for Governor, he described this—he described desegregation plans,

voluntary desegregation plans as an outrage against human decency. That’s how he was quoted in the St. Louis Post Dispatch.

That sounds to me like his objections were more than fiscal.

And I want to make clear that I recognize that I am a strong advocate as a lawyer, but what I have described is what the courts

have said about Mr. Ashcroft’s defiance of laws. In the same campaign he said that he would be—he bragged that he was almost

held in contempt by Judge Hungate.

Now, a few minutes ago Judge Mason—

Senator FEINSTEIN. Pardon me. Where did this happen? You said

he bragged—

Mr. TAYLOR. It’s in my testimony. It’s in the—

Senator FEINSTEIN. No, no. Where did he do this?

Mr. TAYLOR. He did this on the stump in the Republican primary

for Governor in 1984.

A couple minutes ago Judge Mason talked about alternatives to

desegregation. I just want to point out that, No. 1, Mr. Ashcroft opposed funding of the magnet schools in St. Louis, which have

turned out to be very successful in maintaining integration and improving education.

Senator FEINSTEIN. Did he give a reason?

Mr. TAYLOR. I don’t know what his reason was. But in our latest

hearing, the state’s own witness, David Armor, said these magnet

schools have been quite successful in St. Louis.

Secondly, he opposed—and I’ll make this a part of the record—

he issued a press release in 1984 in which he said he was opposed

to school improvements—to the court order for school improvements within St. Louis. Now, that may have been on fiscal

grounds, but he described it in pejorative terms as just a shopping

list. In fact, what the Court of Appeals had said is we need to—

this agreement should have the kinds of programs supporting it

that will get the schools up to triple A status in St. Louis with respect to their bonding authority.

And finally, it was not—when you say the suburbs were—the

borders had to be disregarded if you have any meaningful—to have

any meaningful desegregation, this was a voluntary agreement

with 22 suburban school districts. And they all agreed, and the

agreement has proved very, very successful.

So Senator Ashcroft opposed all of these measures across the

board, described the voluntary agreement in the way I’ve described

to you, Senator, and never offered any other alternative to achieve

equal opportunity for the students.

Senator FEINSTEIN. I think Mr. Woodson wants to respond.

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Mr. WOODSON. Just a quick comment, because what Mr. Taylor

was saying, expressing Senator Ashcroft’s view as if somehow

that’s extreme.

I’m a veteran of the civil rights movement, have gone to jail,

worked 5 years at the Urban League. I can tell you, consistently

since the late 1960’s to today, there have been sharp divisions in

the black community over the desegregation the way it was

planned. We do not describe that the opposite of segregation is not

integration, it’s desegregation.

In Prince George’s County and all over this country, the community has been in an uproar because we’ve been busing our children

out and whites move further out. We had a magnet school in Prince

George’s County that had an opening for 500 children, and you had

2,000 black children wanting to get in that slot, but they were

being held for white children in the name of integration. And some

of us opposed that. We had our schools where 80 percent were

black, when the test scores began to soar because they brought in

competent administrators, engaged the parents, and the children

were learning, the NAACP filed a lawsuit because the schools were

80 percent black, and so when I debated Julius Chambers, head of

the NAACP Legal Defense Fund, and I said, ‘‘Julius, if we have a

situation where we’ve got the presence of education excellence and

the school is black, and there’s diminished excellence in the second

school that is, quote, integrated, where do we send our children?’’ He says, ‘‘To the latter.’’ So the point is that there’s tension within the black community

on that, and so this isn’t something we ought to vilify Senator

Ashcroft for holding to views that are shared by almost half of the

black community.

Senator FEINSTEIN. Mr. Woodson, let me just respond to that. I

mean, I am one that is undecided on this nominee. It would be very

hard for me, for my one vote, to cast a vote for someone that was

opposed to civil rights, basically, as the chief law enforcer.

Mr. WOODSON. I would agree.

Senator FEINSTEIN. It is hard for me to predict what may happen

in the next 4 years that would need a strong Attorney General to

enforce the civil rights law. I want to feel that the man that I support is going to be pro-civil rights, is going to take that position.

And this is one of the areas, I think, where your basic philosophy

will influence, regardless of how much you say you are going to enforce the law, will enforce the kind of body language you have as

Attorney General, your vigor in moving, the directions you give to

your staff, and so on.

Mr. WOODSON. I agree.

Senator FEINSTEIN. Now, I know you are a strong supporter of

Senator Ashcroft, and I respect that. What would you say to somebody like me that really sincerely wants to have an Attorney General who is pro-civil rights?

Mr. WOODSON. What I would say to you, Senator, is that you

need to listen to the full range of opinion in black America, not just

to the, quote, ‘‘civil rights leaders.’’ You need to listen to—I am a

veteran of the civil rights movement. We had 150 black and hispanic low-income people travel 2 days on a bus to come here to support this nominee, and so therefore, you have to ask yourself why

442

would people go to such inconvenience to support a man if they did

not feel that he was strong on civil rights. Civil rights is an emotional issue with me. I am a strong civil rights advocate, and I

would not be sitting here if I thought for one moment that Senator

Ashcroft was really weak on civil rights. I can tell you passionately

I know this man. He has worked with us. He is strong on civil

rights. He is a just man. So that’s what I would say to you. Listen

to the broad range of opinion in black America, not just those who

are—express opinions on the left of center.

Senator FEINSTEIN. Thank you. I know my time has expired, Mr.

Chairman, but Mrs. James and somebody at this end wanted to respond as well. Would you allow them to?

Chairman LEAHY. Yes. We have been trying to allow that. We

have both those for Senator Ashcroft and those against him here,

and I have been trying to make sure that both sides could get

heard. So, Ms. James, you go ahead, and then Mr. Henderson, you

go ahead.

Ms. JAMES. Thank you, and I will be brief.

Senator FEINSTEIN, thank you for that question. I agree with Bob

Woodson in that I could not sit here in this chair and support Senator Ashcroft if I did not believe in his heart of hears that he would

enforce vigorously the civil rights laws of this Nation. I paid too

dear a price. I was one of those students that walked past crowds

of angry white parents to integrate the schools in the south. I was

one of those students that had to take the abuse, that had to be

bused into the white areas. I understand in a very real way what

this means.

There are too many of us who are sitting at this table, who have

been involved in the civil rights movement all our lives, and who

care deeply about these issues. If I did not think that Senator

Ashcroft could forcefully and vigorously enforce the laws of this

land where civil rights are concerned, I wouldn’t be at this table.

Senator FEINSTEIN. Why do you feel that when he opposed desegregation in St. Louis and then statewide?

Ms. JAMES. Because I am able to make the distinctions between

the various roles that Senator Ashcroft has played in his life, as

an Attorney General as a Governor, as a Senator, and the advocacy

roles that he has had to play. I also understand some of the philosophical differences. I also understand, as Bob Woodson has said,

that the opinions about these subjects are varied even in the African-American community. I can tell you this, that because you disagree with one particular plan, does not mean therefore that you

are not in favor of equal access to education in America, and I believe that he is, and I believe that he will forcefully, forcefully, defend the civil rights of students in this country, of women in this

country, and I wouldn’t be at the table if I didn’t believe that.

Senator FEINSTEIN. Thank you.

Chairman LEAHY. And, Mr. Henderson, you might go ahead.

Mr. HENDERSON. Senator Feinstein, I’ll be very, very brief. First,

let me say at the outset that the term ‘‘civil rights’’ encompasses

all persons here in America, in the United States. It is not the exclusive province of African-Americans, even though as an AfricanAmerican I recognize the importance of this issue for my constituVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00456 Fmt 6601 Sfmt 6601 C:\HEARINGS\76342A.004 SJUD4 PsN: SJUD4
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ency, but it affects every constituency and person in the United

States.

We are an increasingly diverse nation, and the next Attorney

General of the United States has to have a broad appreciation of

the importance and responsibility of respecting the rights of all

Americans.

Now, having said that, one would expect an Attorney General to

have a commitment to a vigorous enforcement of the laws and constitutional principles that govern civil rights. The Attorney General

has a responsibility for supervising litigation to achieve the constitutional promise of integration. The Constitution has promised

equal opportunity, not just desegregation, that is, the absence of

formal strictured segregation. And yet, as you have heard, John

Ashcroft posed a desegregation plan of voluntary desegregation,

and did so without offering constructive alternatives that might

have been used to achieve that objective, and did so in a manner

that was inflammatory, that preyed, in terms of the rhetoric, on

fears of many in the company to the worst effect.

The Attorney General has to responsibility to enforce the Voting

Rights Act of 1965. And yet, as Governor, John Ashcroft vetoed legislation that would have enhanced voter opportunities in his state.

John Ashcroft has a responsibility—or the Attorney General has

a responsibility to enforce laws related to persons with disabilities,

and yet his opposition was strong opposition to statutes that would

respect the rights of persons with disabilities, children in schools

related to that has been a source of real concern.

He has a responsibility to respect immigrants, and yet he would

offer legislation that would undermine the constitutional rights of

naturalized citizens.

So I’m saying to you that, you know, an appreciation for civil

rights has to be broad, and there has to be a demonstration that

the Attorney General has a record that one could rely on to enforce

these statutes.

And my last point is this. I think the most important function

that the next Attorney General will play is in the selection of the

Solicitor General and in establishing the structure to review and

promulgate nominees for the Federal courts.

Senator FEINSTEIN. Could I stop you just for a second?

Mr. HENDERSON. Please.

Senator FEINSTEIN. You mentioned legislation having to do with

immigrants. I just asked my staff what legislation was that. Could

you be more specific?

Mr. HENDERSON. Yes, ma’am. The issue of Immigration and Naturalization Service is one of real concern. Now, there were many

Senators who, as you recall, in debate on welfare reform, proposed

limiting welfare reform even to legal immigrants, which we opposed and think needed to be changed, and I’m glad that Congress

is making some structures.

Senator FEINSTEIN. I did as well, yes.

Mr. HENDERSON. I know you did. I know you did.

There is also a question, however, of even the rights of persons

who are naturalized citizens, and the Senator has taken positions

which have suggested that benefits, Federal benefits going to natuVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00457 Fmt 6601 Sfmt 6601 C:\HEARINGS\76342A.004 SJUD4 PsN: SJUD4
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ralized citizens should be questioned. And we’ll dig out those references and provide them here for the Committee for your review.

Senator FEINSTEIN. Thank you.

Mr. HENDERSON. And the question is this: Is a Senator proposing

those initiatives? We may disagree, but that, as one of 100, does

not then give you the right to impose it unilaterally. Obviously, it

has to be enacted into law.

As the Attorney General, in the exercise of your discretion in determining which cases to bring, which cases not to bring, we ought

to put emphasis in your own enforcement strategy. It is those personal views that can affect how the next Attorney General will use

discretion, and all we are saying is at least have a record of an individual, conservative thought that individual may be, who has a

demonstrated commitment to enforcing constitutional guarantees

for all persons in the United States, and if you do a fair and broad

review, we honestly don’t believe that John Ashcroft measures up

to that standard, and that, I think, is the most important standard

of all.

Senator FEINSTEIN. My time is up. Thank you.

Chairman LEAHY. I understand everybody on the Republican side

has asked questions. Senator Durbin, you have not.

Senator DURBIN. Thank you very much, Mr. Chairman.

I have listened to this carefully because I respect everyone on the

panel for coming here and addressing this difficult issue of civil

rights and whether John Ashcroft would fairly and impartially administer the civil rights laws of America, and we are trying to accumulate evidence of his life and public career to reach that conclusion. He has said he will. We expect that of every nominee, but you

look into their background to determine whether or not that is

something that can be believed.

I have tried to measure his life in this area from a couple of perspectives; first, missed opportunities. When has he had an opportunity as a public official to expand civil rights? When has he

seized that opportunity? When has he ignored it?

Secondly, I think that over time, we seem to forget that the civil

rights movement wsan’t all that popular. There was a time when

Martin Luther King’s visit to Chicago was not a popular event, nor

was it popular in many of the other cities that he visited.

Yes, we have a great breakfast. The Mayor of Chicago in his

honor every year has a wonderful breakfast and brings in thousands of people who, I think, rightly praise him, but in his day, he

was not popular, and the question in my mind, when in John

Ashcroft’s public career did he do something that was unpopular,

but right in the area of civil rights? That is another yardstick that

I would apply here in this case.

When I look at the opportunity for voluntary desegregation of

schools, as unpopular as that was even as it was voluntary, I see

resistance and efforts by John Ashcroft to stop that.

The same thing with voter registration. It would have been unpopular for a Republican Governor to sign a bill to expand an opportunity for voter registration in a Democratic city like St. Louis.

Most of us agree it would have been the right thing to do. We

should expand voter registration in every community, black, white,

brown, you name it.

445

The same thing with the Bob Jones University visit. The fact

that it is a religious university is secondary, maybe irrelevant. The

fact that the leaders of that university had made a record of policies and philosophies against interracial dating, threatening if a

homosexual alumnus came on campus that they would have him

arrested for trespass, statements about my Catholic religion, about

to her religions, those are the sorts of things. I think it was a

missed opportunity by John Ashcroft to visit that university and

not note that as a public official.

Ronnie White, I won’t go through that. Again, a missed opportunity for a man with an extraordinary background to say to African Americans not only in Missouri, but across America, yes, you

can do the right thing, you can work hard, you can be a success,

you can be a Federal district court judge. The opportunity was

missed for reasons that we still don’t know.

Mr. Hormel as our Ambassador to Luxembourg, an opportunity

for a man who was openly gay to serve this Nation in a post that

frankly he could have served well in. The country was welcoming

him, and it was resisted by John Ashcroft.

So, when I look to this issue of civil rights and whether or not

when it comes to a hard decision under President Bush in the area

of civil rights, whether John Ashcroft as Attorney General will

stand up and say, ‘‘Mr. President, it may not be popular, but it is

right,’’ that is what I am looking for.

I would just invite comment from members of the panel about

that. Mr. Henderson, if you would like to comment?

Mr. HENDERSON. Well, thank you, Senator.

I can’t agree with you more that evidence of tough decisions that

advance civil rights would certainly be one way of measuring the

suitability of any candidate for this job.

You mentioned touch choices, and I know that when I responded

to Senator Feinstein’s question, I laid out various constituencies

that are affected by civil rights matters.

You talked about tough choices today. One of the groups that experiences some of the most vitriolic response are gay and lesbian

Americans. We see it here in the U.S. Senate in the struggle to

pass a hate crimes statute that covers persons with disabilities,

covers women, covers gays and lesbians.

We have a bipartisan bill. Not everybody supports it, obviously,

but there are more people who do, and yet it is a tough sell in

many ways because it includes gay and lesbian Americans even

though the numbers of people who are affected by hate crimes, they

are second only to African Americans in terms of sheer numbers.

Immigrants are also growing.

But the Hormel issue which you touched on, I do think is worth

responding to because it raises an important question. The Supreme Court did extend constitutional rights, civil rights to gay

and lesbian Americans in Evans v. Romer, and one does expect the

Attorney General to be responsive to all of those constituents.

The Hormel matter was troubling in terms of the outcome of this

nominee, a well-respected businessman who is a gay American, but

the point is, when he was reviewed in the Committee to determine

his suitability for the position, as I understand it, and I stand to

be corrected, Senator Ashcroft did not attend those hearings.

446

He did come out of the hearing, meaning Jim Hormel, on a vote

of 16 to 2. He then requested an opportunity to meet with Senator

Ashcroft by sending him a letter asking for an opportunity to sit

down to exchange his views, and in the letter, he reminded Senator

Ashcroft that he himself, meaning Jim Hormel, had been the dead

of Admissions at the University of Chicago and had admitted Senator Ashcroft to that law school, I believe in 1964. He never got a

response to the letter. That is OK, but the question remains that

when he was voted against and when Senator Ashcroft spoke

against him, he said it was the totality of the record that was the

basis for his decision, and I want to know what was the totality

of the record.

I mean, the question is if you have a hard time affecting the constitutional rights of any group of Americans, whether they be African Americans or women or Hispanic Americans and, in this instance, gay Americans, then the question is can you, in fact, enforce those laws that apply to every American citizen and to respect those laws in a way that we would want the Attorney General to do.

Senator DURBIN. Mr. Chairman, I would be happy to let the

panel respond, at least we have in the past.

Chairman LEAHY. Mr. Woodson, did you want to comment?

Mr. WOODSON. Yes, just briefly.

First of all, Senator, I am not sure that just because something

is unpopular, it means that is correct, and I think that the kind

of leadership that you are talking about, taking unpopular position,

Dr. King when he took his position in support of direct action was

opposed by the mainstream civil rights organization.

Senator DURBIN. Did you think, Mr. Woodson, when you were involved in demonstrations and arrested that you were doing something that was popular?

Mr. WOODSON. No, not at all, but the point is what we look for

in a leader like Dr. King is moral consistency which goes to the

person’s character.

Dr. King opposed the violence of the Klu Klux Klan, but he opposed with equal vigor retaliatory violence of the Black Panther

Party which made him unpopular among whites and blacks. That

is true leadership, but it also goes to his character, and where he

is able to be morally consistent. I think that kind of moral high

ground has been forfeited by the current civil rights leadership because they looked the other way when blacks engage in immoral

or unethical behavior and they are defended as being targeted by

whites as opposed to holding them to the same standard.

So I think that we would look for in Senator Ashcroft the kind

of qualities that we saw in Elliot Richardson, who came into the

President’s office and said, ‘‘I will resign.’’ So I think that is character and moral consistency that I find evident in Senator Ashcroft

that would cause him to act in a situation courageously because the

character issue is what I am impressed with.

Chairman LEAHY. Following the procedure that we have had, we

have made sure that both those for and against Senator Ashcroft

had a chance to answer the question. As we will keep it brief, that

would be you, Pastor Rice, and then you, Mr. Taylor.

447

Rev. RICE. I certainly will, and let me just respond to one statement about Dr. Martin Luther King and his popularity among the

African-American community.

I want to say that Dr. King overwhelmingly, just for the record,

is extremely, still to this day, very popular among the AfricanAmerican community.

Now, your question was missed opportunities, and I think you,

Senator, have articulated those missed opportunities, and I would

only like to mention four. One, his opposition to voluntarily desegregate the schools of the city of St. Louis, and I think Mr. Taylor

can comment on that. Two, his unwillingness to apologize to the African-American community in Missouri in general for his insensitivity. Three, his visit to the Bob Jones University was, indeed,

an insult to many African Americans especially in Missouri, and to

this date, he has not to my knowledge openly, unlike Presidentelect Bush says, ‘‘Yes, I didn’t know. I am sorry,’’ he repudiated

going. To this day, he has refused, to my knowledge, to even apologize for that or to send back the honorary doctor degree.

Then, to participate in interviews with a magazine that is so extreme on racism like the Southern Partisan magazine and yet not

offer some type of apology for that to me is missed opportunities,

and I think that had that happened, it would certainly help us

along this way.

It is very interesting to me as I close that this nomination receives so much back-and-forth, so much uneasiness. Again, it would

be an area that I think that we could bridge the divide if we would

look another way.

Mr. TAYLOR. A couple of quick points, but I cannot refrain from

saying that I knew Elliot Richardson for many years. We were colleagues for 17 years on the Citizens Commission on Civil Rights,

and John Ashcroft is no Elliot Richardson.

But, Senator, to get to your point, I think that is a very important point that you make. We would have settled in St. Louis not

for leadership from Mr. Ashcroft, but just for silence. We would

have settled for something less. We would have settled for compliance for court orders. We would have settled for not fanning the

flames of racial divisions by remarks that he made, but I also think

it is important in the year 2001. We see so much lip service being

paid to civil rights and Dr. King’s memory, but does it get backed

up by real leadership? Does it get backed up by efforts to deal with

the situation that is facing so many people of color and people of

color who are poor who still lack in this time the access to real opportunity? It is going to take something more than just silence on

this. It is going to take real leadership, and the record does not

support any notion that the nominee will provide that leadership.

Senator DURBIN. Thank you.

Chairman LEAHY. Senator Hatch?

Senator HATCH. Just let me make a couple of final remarks.

I would like to put into the record at this point, because I think

it is very pertinent, an article about all this from the St. Louis Post

Dispatch, a paper not known for its friendliness to Senator

Ashcroft.

After quoting Mr. Taylor on Senator Ashcroft’s record in this litigation, the story goes on to note the following, ‘‘Others paint a difVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00461 Fmt 6601 Sfmt 6601 C:\HEARINGS\76342A.004 SJUD4 PsN: SJUD4
448

ferent portrait of Ashcroft’s involvement in the case. Bruce

LaPierre served as a special master in the case. In effect, LaPierre

was a go-between for the two sides. LaPierre declined to comment

Friday. However, a footnote to an article he wrote in 1987 for the

Wisconsin Law Review said that, ‘The State of Missouri participated in these negotiations on a limited, but very helpful basis.’ Judge Innalokus, the attorney for the Papinsville and Vandiver

school districts in 1983 said Ashcroft’s representative in the case ‘played a constructive role and helped bring about a settlement.’ Ashcroft’s representative was Larry Marshall, a former State Senator. With the two sides deadlocked over the payment of attorney’s

fees, Marshall suggested that the State pick up the tab. That was

one of the final hurdles to the landmark agreement in 1983, much

of which remains intact.’’ I just wanted the record to reflect that many people do not share

Mr. Taylor’s view of Senator Ashcroft’s role in this litigation, but

we have heard both sides, and, look, it is time to bring this to a

closure.

We have had people on both sides of these issues, and I think

there is enough here for any person of a reasonable mind who really wants to be fair to basically give the benefit of the doubt to Senator Ashcroft, and, frankly, those of us who know him go way behind that. But I am saying if you have any doubts, he ought to be

given the benefit of the doubt because of what really is a remarkable record and a very good personal history.

So there are differences here, and we understand that, and I just

want to thank each of you for coming. Each of you has added to

this hearing. Each of you has contributed immeasurable help to us

from your perspective and point of view, but I think the importance

of this panel shows that there are two different or maybe more

than just one liberal or one conservative point of view. I think that

is important to know.

Thank you.

Chairman LEAHY. To emphasize the differences on that, just in

fairness, Senator Hatch just put in an article from that newspaper.

We will also add to the record the editorial for that newspaper

calling for the defeat of Senator Ashcroft for Attorney General.

I will also put in a number of endorsements of Senator Ashcroft,

a number of articles opposing Senator Ashcroft. This includes a list

given to me by my friend from Utah with supporting documents.

All of this material will be placed in the record at the appropriate

time, including a number of endorsements of Senator Ashcroft.

Senator HATCH. If the Senator would yield on that?

Chairman LEAHY. Of course.

Senator HATCH. I would like to put the endorsements, at least

some of them into the record, endorsements of Senator Ashcroft, including the endorsements of a wide variety of Democrat and Republican Attorneys General, former and sitting Attorneys General,

law enforcement agencies, minority groups, law professors, et

cetera.

But in addition, I would like to put into the record a letter from

the National Baptist Convention, USA, Inc., Civil Rights and Equal

Justice Commission. This was sent to Senator Leahy and myself on

the Committee on the Judiciary, and I will just read part of it. ‘‘The

449

Commission on Civil Rights and Equal Justice of the National Baptist Convention submits this letter in support of the President-elect

Bush’s nomination of Senator Ashcroft to be Attorney General of

the United States. The National Baptist Convention has 8.4 million

members and 33,000 churches, and we are America’s third-largest

religious denomination. With our first member church founded in

the 1700’s, the National Baptist Convention is the world’s oldest

and largest civil rights organization.’’ Let me just read a little bit more here. ‘‘Our commission takes

the position of strongly held religious faith should not be a disqualifying factor for Attorney General or elected office. In fact, the

commission believes that Senator Ashcroft’s Christian faith and

morality support his confirmation. As Governor of Missouri, Senator Ashcroft proclaimed Martin Luther King’s birthday a State

holiday,’’ et cetera. It said, ‘‘None of Senator Ashcroft’s appointees

has raised a specter of racism. Senator Ashcroft received 50 percent

more African-American votes in Missouri last fall than Presidentelect Bush. Senator Ashcroft’s wife taught for many years at Howard University, an institution of higher education venerated by African Americans. Our churches serve working-class, urban, and

rural neighborhoods that too long have been victimized by drug

lords and other violent criminals,’’ the point you have been making,

Mr. Woodson. ‘‘We have opposed judges and politicians who seek to

put these criminals back on the street where they can claim more

innocent victims. Senator Ashcroft has shared this concern for sheltering our communities from violent crime,’’ and then they state

some of their hopes, but I will put the whole letter in the record.

I think it is pretty important to understand it is the third-largest

religious congregation in the country and a leading civil rights organization. So there are two sides that people can raise. We don’t

all agree on some of the things that have happened, but I respect

your respective points of view. I know all of you, and I am just very

grateful you all came.

Chairman LEAHY. We can all read in letters for and against, and

I am going to resist the temptation—

Senator HATCH. I will resist, too. I have some more. I will resist

it.

Chairman LEAHY.—To do so, the same as Senator Hatch. Eventually, the record will be replete with a number.

I would also note that Senators will have the opportunity to

place into the record other materials, as Senators will have the opportunity following the normal practice of this Committee to submit follow-up, written questions to the nominee and panels, and I

would ask everybody to do that as quickly as possible.

I thank the panel.

Senator HATCH. Could we have the questions in by the end of the

day, though?

Chairman LEAHY. We can talk about that at the next break.

Senator FEINSTEIN. Mr. Chairman, may I give you my written

questions?

Chairman LEAHY. I submit written questions from the distinguished senior Senator from California.

Senator SPECTER. Mr. Chairman, a brief addendum. When I was

questioning Mr. Taylor yesterday with respect to the sanction or

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contempt issue, I mentioned how sometimes prosecuting attorneys

are held in contempt, and I made a very brief reference which I

would expand upon.

I handled a case called Arnold Marks in 1969 as D.A. of Philadelphia, a major drug pusher who got a slap on the wrist, and I mentioned the fact that I was held in contempt, but I also wanted to

mention that it was withdrawn.

[Laughter.]

Senator HATCH. I am glad to have that record clarified.

Senator SPECTER. The contempt citation was withdrawn under

some extraordinary circumstances which I detail in my recent book,

A Passion for Truth.

Mr. TAYLOR. Senator, may I just say that I appreciate that clarification, but I would say that somebody held in contempt in the

heat of a tough trial, I find that more excusable than a pattern of

actions of defiance of the courts that took place over a long period

of time. That, I think, is the distinction that I would make in the

case, and the court records speak for itself in that regard.

Chairman LEAHY. I would note that the distinguished Senator

from Pennsylvania was not being held in contempt. He had been

removed from that. I first met him when he was District Attorney

of Philadelphia, and I was one of the officers of the National D.A.’s

Association.

We will take a 5-minute break.

Senator SCHUMER. Mr. Chairman?

Chairman LEAHY. Yes.

Senator SCHUMER. I don’t have a question, but for some of our

staffs, it would be hard to get in questions by the end of today.

Could we do it by the end of business Monday for all the panels?

Senator HATCH. Oh, no.

Chairman LEAHY. We are going to talk about that during the

break.

Mr. TAYLOR. Senator, one last thing. Senator Kennedy asked last

night about evidence of success of the program that Mr. Ashcroft

called an ‘‘outrage against human decency,’’ and I would like to

submit for the record Dr. Danforth’s report for the leading St.

Louis business organizations and other material.

Chairman LEAHY. It will be accepted.

We will stand in recess for 5 minutes.

[Recess from 10:23 a.m. to 10:40 a.m.]

Chairman LEAHY. I had stated earlier when Senator Hatch was

reading from the St. Louis paper, I have two editorials to put in

the record from the St. Louis Dispatch, one from January 14th of

this year, one from January 18th. I would read from the January

18th one in which they say, ‘‘The most disturbing part of Mr.

Ashcroft’s testimony was his misrepresentation of his opposition to

the voluntary school desegregation program in St. Louis. He said

the courts did not find the State guilty of wrongdoing, that the

State had not been a part of the case. In fact, the Federal courts

found the State was the primary constitutional wrongdoer, and the

State was a party to the case, and in 1981, the Federal court criticized the State for deliberately deciding to defy the authority of the

court.’’

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They conclude by saying—I won’t read it all, but they conclude

by saying, ‘‘Mr. Ashcroft made some progress toward making himself more palatable as Attorney General, but the weight of his

record and the tension between his beliefs and the laws of the land

are hard to ignore.’’

Both of those will be made part of the record.

Senator FEINSTEIN. Mr. Chairman?

Chairman LEAHY. Yes?

Senator FEINSTEIN. May I submit for the record the testimony of

the National Hispanic Leadership Agenda, which is a non-partisan

coalition of major Hispanic organizations?

Chairman LEAHY. That will also be made part of the record.

Does anybody else have any submissions for the record?

[No response.]

Chairman LEAHY. Professor Dunn, what order do you gentlemen

have—Mr. Barnes is a former member, and following the normal

practice, Michael Barnes, you may begin, and then Professor Dunn,

and then we will go to questions.

STATEMENT OF MICHAEL BARNES, PRESIDENT, HANDGUN

CONTROL, WASHINGTON, D.C.

Mr. BARNES. Thank you very much, Mr. Chairman. My name is

Michael Barnes. I am the president of Handgun Control.

As the Committee knows, Handgun Control is the Nation’s largest citizen organization dedicated to preventing gun violence and

making our neighborhoods safer.

Recently, some media reports have referred to Handgun Control

as a ‘‘liberal’’ or a partisan group. But our members, like the victims of gun violence, are not limited by any ideological or party

label, and poll after poll shows that the American people support

our agenda by huge margins.

We are a non-partisan organization. Our staff includes Republicans and Democrats. Our Board of Directors includes prominent

Republicans, prominent Democrats, and, in fact, as the Committee

knows, the leaders and heroes of our cause and our organization

are Jim and Sarah Brady, lifelong Republicans. Most Americans recall that Jim Brady served as President Ronald Reagan’s press secretary, and many remember that terrible day 20 years ago in

March when John Hinckley shot President Reagan and Jim Brady

and two courageous law enforcement officers.

Mr. Chairman, I would like to submit a brief statement from Jim

Brady for the record. I wish I had time to read it this morning, but

as you can imagine, Jim didn’t particularly appreciate Mr. Ashcroft

calling him ‘‘the leading enemy of responsible gun owners.’’ Jim

Brady is not an enemy of responsible gun owners. He himself has

been a responsible gun owner and a hunter. He and Sarah are enemies of irresponsible gun owners, and they are the ones who

should be concerned about the views of Jim and Sarah Brady.

Through the work of Jim and Sarah, through the work of this

Committee and the Congress, our Nation has made enormous

strides forward in the battle against gun violence. The Brady law,

the Federal assault weapons ban, and other common-sense laws

have helped to reduce crime and gun violence in America.

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We must build on this success, and we can’t afford to turn back

to weaker gun laws. As the Wall Street Journal reported just recently, more than 96,000 Americans are still killed and wounded

each year by gun violence. The Attorney General’s first responsibility, of course, is to enforce and defend Federal law. Regrettably, a

careful review of Mr. Ashcroft’s record shows a deeply felt hostility

to Federal action against gun violence. Put simply, Mr. Ashcroft is

unalterably opposed to the very gun laws he will be called upon to

enforce and defend. For this reason, Handgun Control must reluctantly oppose his nomination. We have never before opposed a

nominee for Federal office.

With this committee’s permission, I will submit a more comprehensive analysis for the record. For now, I will briefly highlight

just a couple of key concerns.

Let me make it clear that we do not oppose Mr. Ashcroft simply

because he disagrees with us on gun policy. We oppose him because

his opposition to strong Federal gun laws is unyielding and ideological. It is rooted in a troubling constitutional philosophy that

promises to affect every decision he makes with respect to the enforcement of gun laws.

Mr. Ashcroft’s voting record on guns as a U.S. Senator is very

easy to summarize. Without exception, he supported the position of

the pro-gun lobby and opposed measures supported by the vast majority of the American people.

In testimony before this committee, Mr. Ashcroft has tried to rehabilitate his record on gun issues. For example, he said that he

supported mandatory background checks for gun show sales. But

as members of the Committee may recall, that is a rather misleading statement.

As a U.S. Senator, Mr. Ashcroft had an opportunity to vote for

strong gun show legislation, but he chose to support weak measures riddled with loopholes. First, he voted for an amendment that

would have made background checks voluntary. That is right. He

expected criminals and other prohibited purchasers to volunteer for

background checks at gun shows. Then he voted for another weak

measure that would have limited law enforcement to only 24 hours

to conduct criminal background checks on gun show sales. This

would have actually weakened current law, which provides law enforcement with 3 business days to carefully review gun sales by licensed dealers.

The difference between 24 hours and 3 business days is critical,

according to law enforcement. Even though 95 percent of all background checks are completed in less than 2 hours, for the remaining 5 percent, law enforcement must check State and local records,

some of which are not computerized and require a manual review.

The FBI looked at what would happen if it had just 24 hours to

complete background checks. The Bureau found that in just 6

months, 17,000 criminals and other prohibited purchasers would

have gotten guns—17,000 in 6 months.

On issue after issue, Mr. Ashcroft has voted with the gun lobby.

He was one of only 20 Senators to vote against a proposal to require the sale of child safety locks with handguns to protect our

children in America. And in a 1998 letter to our Chair, Sarah

Brady, Mr. Ashcroft called the Federal assault weapons ban

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‘‘wrong-headed.’’ In that same letter, he summarized his views very

clearly. He wrote to Sarah, ‘‘Gun control laws will not prevent

criminals from acquiring guns.’’

Well, don’t tell that to the people of every other civilized country

in the world that have responsible gun control laws and do keep

criminals from acquiring guns.

Not only did Mr. Ashcroft consistently support the gun lobby in

the Congress, he has volunteered to champion the gun lobby’s

agenda in his home State on an issue far removed from his senatorial duties. In 1999, he was featured in radio ads supporting an illconceived and extreme ballot referendum to legalize the carrying of

concealed weapons in Missouri.

This referendum was so poorly written and riddled with loopholes that it would have allowed convicted child molesters and

stalkers to carry semi-automatic pistols into bars, sports stadiums,

casinos, and day-care centers. Numerous law enforcement organizations in Missouri stepped up to oppose it, but Mr. Ashcroft ignored

their advice and did the gun lobby’s bidding. Not surprisingly, the

voters of Missouri rejected this outrageous proposal.

Even more disturbing than Mr. Ashcroft’s unwavering record opposing gun safety are his views about the constitutional significance of guns. He has argued that the Second Amendment supports

‘‘good government’’ because an armed citizen—and this is a quote

from Mr. Ashcroft—because an armed citizenry ‘‘is less likely to fall

victim to a tyrannical central government...’’

According to this extreme theory, popular with paramilitary militia groups—and they use it in the courts, or they try to; no court

has ever accepted it—the Amendment’s purpose is to give individuals the means to take up arms against government officials if they

become, in the gun owner’s view, ‘‘tyrannical’’ or ‘‘despotic.’’

For the chief law enforcement officer of the United States to support this very extreme theory obviously raises very disturbing questions.

In conclusion, let me just say, Mr. Chairman, throughout his

years in public service, Mr. Ashcroft has been strongly opposed to

even the most limited and common-sense gun laws, laws that are

supported by the vast majority of the American people. This opposition apparently arises out of his extremist interpretation of the

United States Constitution. This Committee and the Senate should

not expect Mr. Ashcroft to check these principles, which he apparently believes in very strongly, at the door to the Attorney General’s office. Quite simply, his record establishes that he cannot be

counted on to vigorously enforce and defend our Nation’s gun laws

that have helped to reduce gun violence, laws against which he

fought here in the U.S. Senate.

This Committee and the Senate, we submit respectfully, should

reject his nomination to be Attorney General.

Thank you very much, Mr. Chairman.

[The prepared statement and an attachment of Mr. Barnes follow:]

454

STATEMENT OF MICHAEL D. BARNES, PRESIDENT OF HANDGUN CONTROL AND THE

CENTER TO PREVENT HANDGUN VIOLENCE

Chairman Leahy, Ranking Member Hatch, Members of the Committee, thank you

for giving me this opportunity to testify on the nomination of John Ashcroft to be

Attorney General.

As the Committee knows, Handgun Control is the nation’s largest organization

dedicated to preventing gun violence and making our neighborhoods safer.

Recently, som media reports have referred to Handgun Control as a ‘‘liberal’’ group. But your members, like the victims of gunviolence, are not limited by any

ideological lable, and poll after poll shows that the American people support our

agenda by huge majorities.

We are a bipartisan organization. Our staff includes Democrats and Republicans.

Our Board of Directors includes prominent Democrats and Republicans. In fact, the

leaders of Handgun Control, Jim and Sarah Brady, are lifelong Republicans. Most

Americans know that Jim Brady served as Ronald Reagan’s Press Secretary, and

they remember that terrible day, twenty years ago in March, when John Hinckley

shot President Reagan, Jim Brady and two law enforcement officer.

Jim Brady was also invited to tesify at this hearing and I would like to read a

brief statement from him.

In addition to the Brady Law, we passed the federal assault weapons ban—Senator Feinstein and Senator Schumer were key leaders on this issue—in response to

law enforcement concerns that these weapons were being used by drug gangs and

other dangerous criminals.

And these stronger laws have helped reduce crime and gun violence. The Department of Justice reports that the overall crime rate is the lowest in 25 years, the

murder rate is down more than 25 percent, and gun violence has declined by more

than 35 percent.

We must build on this success, and we cannot afford to turn back to weaker gun

laws. As the Wall Street Journal recently reported, more than 96,000 Americans are

still killed and wounded each year by gun violence. The Attorney General’s first responsibility is to enforce, and defend, federal law. Regrettably, a careful review of

John Ashcroft’s rhetoric and record shows a deeply felt hostility to strong federal

action against gun violence. Put simply, Mr. Ashcroft is unalterably opposed to the

very gun laws he will be called upon to enforce and defend. For this reason, Handgun Control must oppose his nomination.

With the Committee’s permission, I will submit a more comprehensive analysis

for the record. For now, I will briefly highlight our key concerns.

OPPOSITION TO STRONG GUN LAWS

Let me make it clear that we do not oppose John Ashcroft simply because he disagrees with us on gun policy. We oppose him because his opposition to strong federal gun laws is unyielding and ideological. It is rooted in a troubling constitutional

philosophy that promises to affect every decision he makes on the enforcement of

gun laws.

Mr. Ashcroft’s voting record on guns as a United States Senator is easy to summarize: without exception, he supported the position of the National Rifle Association and opposed measures supported by the vast majority of Americans.

In testimony before this Committee, Mr. Ashcroft has tried to rehabilitate his

record on gun issues. For example, he said that he supported mandatory background checks for gun show sales. But that is misleading.

As a United States Senator, Mr. Ashcroft had an opportunity to vote for strong

gun show legislation but he chose to support weak measures riddled with loopholes.

First, he voted for an amendment that would have made background checks voluntary. That’s right, he expected criminals and other prohibited purchasers to volunteer for background checks at gun shows.

After public opposition to that approach, Senator Ashcroft voted for another weak

measure that would have limited law enforcement to only 24 hours to conduct criminal background checks on gun show sales. This would have actually weakened current law which provides law enforcement with three business days to carefully review gun sales by licensed dealers.

The difference between 24 hours and three business days is critical for law enforcement. Even though 95 percent of all background checks are completed in less

than two hours, for the remaining five percent, law enforcement must check state

and local records, some of which may not be computerized and require a manual

review. The FBI looked at what would happen if it had just 24 hours to complete

background checks. The Bureau found that, in just six months, 17,000 criminals and

prohibited purchasers would have gotten guns.

455

And because he valued easy access to guns over thorough background checks, Senator Ashcroft actually voted against the amendment that would have required background checks at gun shows and maintained law enforcement’s ability to complete

them.

On issue after issue, Mr. Ashcroft has toed the gun lobby line. He was one of only

20 Senators to vote against a proposal to require the sale of child safety locks with

handguns.

In a 1998 letter to Sarah Brady, John Ashcroft called the federal assault weapons

ban ‘‘wrong-headed.’’ And in that same letter, he summarized his views very clearly:

‘‘Gun-control laws will not prevent criminals from acquiring guns.’’

SUPPORT FOR A RADICAL GUN LOBBY REFERENDUM IN MISSOURI

Not only did Mr. Ashcroft consistently support the gun lobby in the Congress, he

has volunteered to champion the NRA’s agenda in his home state on an issue far

removed from his Senatorial duties. In 1999, he was featured in radio ads supporting an ill-conceived and extreme ballot referendum to legalize the carrying of concealed weapons in Missouri.

This referendum was so poorly written and riddled with loopholes that it would

have allowed convicted child molesters and stalkers to carry semi-automatic pistols

into bars, sports stadiums, casinos and day care centers. Numerous law enforcement

organizations opposed it, but Mr. Ashcroft ignored their advice and did the NRA’s

bidding. Not surprisingly, the voters of Missouri rejected this outrageous proposal.

EXTREME VIEWS ON THE SECOND AMENDMENT

Even more disturbing than Mr. Ashcroft’s unwavering record opposing gun safety

laws are his views about the constitutional significance of guns. In 1998, he convened a Senate Subcommittee hearing on the meaning of the Second Amendment.

At that hearing, he argued that the Amendment supports ‘‘good government’’ because an armed citizenry ‘‘is less likely to fall victim to a tyrannical central government. . .’’

According to this extreme theory, popular with paramilitary militia groups, the

Amendment’s purpose is to give individuals the means to take up arms against government officials if they become—in the gun owner’s view—‘‘tyrannical’’ or ‘‘despotic’’.

For the chief law enforcement officer of the nation to support this theory raises

disturbing questions. If the Second Amendment’s purpose is to keep government officials in check through the threat of armed revolt, then why does it not confer a

constitutional right to own firepower-machine guns, hand grenades, surface-to-aie

missiles—to match that of the government? And this is not an academic question.

Leaders of paramilitary groups have defended against federal gun-related charges

on the ground that their training with military weapons is protected under the Second Amendment. Would Attorney General Ashcroft aggressively prosecute such

groups, or would he be constrained by his constitutional convictions?

Similarly, would an Attorney General with such an extreme view of the 2d

Amendment vigorously defend the nation’s gun laws in court? Let me give you a

specific example. The gun lobby challenged the federal assault weapons ban in

court. A federal judge in Michigan recently dismissed this lawsuit and the Department of Justice is now defending that decision on appeal. In light of his criticism

of the assault weapons ban and his 2d Amendment interpretation that guns promote good government, could a Department of Justice headed by John Ashcroft be

counted on to defend this critical anti-crime law?

CONCLUSION

Throughout his years in public service, John Ashcroft has been strongly opposed

to even the most limited and common sense gun laws, laws that are supported by

the vast majority of American people. This opposition arises out of his extremist interpretation of the 2d Amendment. This Committee and the Senate cannot expect

John Ashcroft to check these principles at the door to the Attorney General’s office.

Quite simply, his record establishes that he would not vigorously enforce and defend

the nation’s gun laws that have helped reduce gun violence. This Committee, and

the Senate, should reject his nomination to be Attorney General.

456

1 143 Cong. Rec. S 11617–05 (daily ed. Nov. 4, 1997) (statement of Sen. Hatch).

STATEMENT OF

fJAMES BRADY

Chairman Leahy, Ranking Member Hatch, and Members of the Judiciary Committee, I want to thank you for inviting me to testify. I regret that a family medical

problem prevents me from being with you for this important hearing. I wanted to

send this brief statement to the Committee to address comments Senator Ashcroft

made about me.

In a fundraising letter for his Senate campaign, Mr. Ashcroft called me the ‘‘leading enemy of responsible gun owners.’’ I found that remark reckless and offensive,

even for a politician trying to raise money. We’ve heard a lot from President-elect

Bush about changing the tone in Washington. It is too bad he’s nominated someone

who sings a divisive tune. Most importantly, responsible gun owners know that they

have nothing to fear from me. In fact, I was a responsible gun owner—I had a shotgun when I was a kid. And I have close friends who are responsible gun owners

and I’ve worked with many responsible gun owners. My problem is the irresponsible

gun owners—like the criminal who shot me and put me in a wheelchair.

Ever since that terrible day almost twenty years ago, I have worked with my wonderful wife Sarah to strengthen our nation’s gun laws. And with the help of this

Committee we have made progress. We passed the Brady Law which requires licensed gun dealers to conduct background checks. Sarah and I were deeply honored

that you gave that law our name. And we are so proud that the law is working,

with more than 600,000 criminals and other prohibited purchasers stopped from

buying guns. Looking back, it’s hard to believe there was such strong opposition to

such a common sense idea.

We need to build on this success, and we cannot afford to go back to weaker gun

laws. I am afraid that is what would happen under an Attorney General like John

Ashcroft. With his extreme positions, he has stayed close to the gun lobby but

moved far away from most Americans. I urge this Committee, and the Senate, to

reject his nomination.

STATEMENT OF

fHANDGUN CONTROL

Handgun Control, the largest citizen organization working for stronger gun safety

laws, submits this statement in opposition to the nomination of John Ashcroft as

Attorney General of the United States.

An Attorney General’s first responsibility is to defend, and enforce, federal law.

As Senator Orrin Hatch stated in explaining his opposition to a Clinton Administration executive appointee some years ago, ‘‘[t]hose charged with enforcing the Nation’s laws must demonstrate a proper understanding of that law, and a determination to uphold its letter and its spirit.’’ 1 When it comes to the nation’s gun safety

laws, John Ashcroft will be the fox standing guard over the chicken coop. Far from

‘‘a determination to uphold the letter and spirit’’ of the nation’s gun laws, an

Ashcroft Justice Department poses a clear and present danger to the protection, and

vigorous enforcement, of those laws. Handgun Control opposes Ashcroft not simply

because he is opposed to sensible laws to reduce gun violence, but because his opposition springs from a radical pro-gun ideology, including an extremist view of the

Second Amendment to the Constitution. That ideology inevitably will infect every

policy and law enforcement decision he will make concerning the control of firearms,

to the detriment of public safety.

ASHCROFT AND THE GUN LOBBY

THE ASHCROFT RECORD IN CONGRESS

John Ashcroft’s record on guns demonstrates one incontestable proposition: he is

joined at the hip with the National Rifle Association and other extreme pro-gun

groups. This is evident from both his rhetoric and his record. During his unsuccessful campaign for re-election to the Senate, he called former Reagan Press Secretary

James Brady ‘‘the leading enemy of responsible gun owners.’’ (See Attachment A.)

In key Senate votes on gun legislation, he was in lock step with the gun lobby, voting against common-sense gun safety proposals 13 out of 13 times.

457

2See http://www.gunowners.org/news/nws9805.htm (last visited Jan. 2001).

3 Id. 4 Id. 5See Scott Charton, ‘‘Concealed guns backer Ashcroft had ‘grave concerns’ about proposal,’’ Associated Press Newswires, Apr. 11, 1999, available at Westlaw, newsworld-pro database, 4/11/

99 APWIRES 22:01:00.

His votes against public safety include:

• Voted against closing the gun show loophole in 1999. The Lautenberg Amendment

to S. 254, the Violent and Repeat Juvenile Offender Accountability and Rehabilitation Act (a.k.a., the Juvenile Justice Bill) would have closed a loophole in

our federal gun laws by requiring background checks on all sales at gun shows.

Under current federal law, only licensed gun dealers must conduct background

checks on buyers; private individuals can sell guns at gun shows without conducting the checks. This loophole enables criminals and juveniles to buy guns

without fear of being detected.

• In 1999, voted twice to weaken existing law by removing the background check

requirement on pawnshop redemptions and by allowing dealers to sell guns at

gun shows in any state. The Craig and Hatch/Craig Amendments to S. 254

would also have weakened existing law by reducing the amount of time law enforcement has to complete criminal background checks for dealer sales at gun

shows and by granting special civil lawsuit immunity to negligent gun sellers

at gun shows.

• Voted twice against requiring child safety locks to be sold with all guns sold by

licensed dealers, once in 1999 (the Kohl Amendment to S. 254) and once in 1998

(the Boxer/Kohl Amendment to the FY 1999 Commerce, State and Justice Appropriations bill).

• Voted against regulating Internet firearm sales (the Schumer Amendment to

5.254 in 1999).

Voted twice against a ban on the importation of large capacity ammunition magazines (the Feinstein Amendment to 5.254 in 1999 and the Feinstein Amendment to

the FY 1999 Commerce, State and Justice Appropriations bill in 1998).

• Voted for a measure that would have impaired implementation of the National

Instant Check System in 1998. The Smith Amendment to the FY 1999 Commerce, State and Justice Appropriations bill would have prohibited the FBI

from keeping records of gun transfers for a reasonable length of time, thereby

inhibiting the FBI’s ability to audit the system to ensure that prohibited persons are denied guns and qualified persons are cleared for purchase.

Although Ashcroft portrays himself as a ‘‘tough on crime’’ law enforcer, his ‘‘toughness’’ appears to have limits when it comes to guns. Senator Hatch had sponsored

a bill—the Violent and Repeat Juvenile Offender Act of 1997 (S. 10)—that would

have expanded authority to prosecute illegal gun traffickers. Ashcroft sought to strip

from the bill a provision that would have added federal firearms violations to the

list of offenses that would trigger prosecution under the federal Racketeer Influenced and Corrupt Organizations (RICO) statute. Ashcroft sent a handwritten note

to Larry Pratt, executive director of the extremist Gun Owners of America, thanking

Pratt for ‘‘bringing to my attention the RICO (2nd amendment) problems with the

juvenile justice bill.’’ 2 He assured Pratt, ‘‘I am working to see that the RICO provisions are stripped from the bill prior to floor consideration.’’ 3 GOA had called the

bill ‘‘Hatch’s Horror.’’ 4 The bill later was amended to weaken the provision.

ASHCROFT’S SUPPORT FOR HIDDEN HANDGUNS

Not only did Ashcroft unswervingly support the gun lobby in the Congress, he has

reached out to champion the NRA’s agenda in his home state. In 1999, he was featured in radio ads supporting an ill-conceived, extreme (and, fortunately, unsuccessful) ballot referendum to legalize the carrying of concealed weapons in Missouri.

Proposition B was so poorly written that it would have allowed virtually anyone to

carry a hidden handgun virtually anywhere. It was so riddled with loopholes that

it would have allowed convicted child molesters and stalkers to carry semi-automatic pistols into bars, sports stadiums, casinos, and day care centers. The proposal

would have allowed people to obtain a permit to carry a concealed handgun with

minimal training; applicants would not even be required to hold a gun.

Although Ashcroft’s radio ads claimed Proposition B’s safeguards were ‘‘plenty

tough,’’ 5 most of Missouri’s law enforcement community strongly disagreed. Proposition B was opposed by the Missouri Police Chiefs Association, the Missouri Peace

Officers Association, the Kansas City Police Department, the Kansas City Metropolitan Crime Commission, the Greater St. Louis Police Chiefs Association, and the St.

458

6The Hill, May 10, 2000, at 3. 7See, e.g., Arthur Kellerman et al., Suicide in the Home in Relation to Gun Ownership, 327

New Eng. J. Med. 467–472 (1992); Arthur Kellerman et al., Gun Ownership as a Risk Factor

for Homicide in the Home, 329 New Eng. J. Med. 1084–1091 (1993). 8The Second Amendment reads: ‘‘A well regulated Militia, being necessary to the security of

a free State, the right of the people to keep and bear Arms, shall not be infringed.’’ U.S. Const.

Amendment II. 9 Hearing before the Senate Subcommittee on the Constitution, Federalism and Property Rights

of the Committee on the Judiciary, 105 th Cong. 3 (1998) (statement of the Honorable John

Ashcroft). 10See Gary Wills, A Necessary Evil: A History of American Distrust of Government, at 205–

21 (1999); Carl T. Bogus, The Hidden History of the Second Amendment, 31 U.C. Davis L. Rev.

309, 386–404 (1997); Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 Val.

U. L. Rev. 107, 110 (1991).

Louis and Kansas City Chapter of the National Organization of Black Law Enforcement Executives.

Proposition B also was opposed by many in the business community, including the

Chambers of Commerce in Missouri’s largest cities. Even the major league sports

franchises in the state—the Kansas City Chiefs, the Kansas City Royals, the St.

Louis Rams and the St. Louis Cardinals, as well as the Major League Baseball Players Association and the National Football League Players Association—opposed it.

These business and sports interests were deeply concerned about the prospect of

thousands of people carrying concealed weapons into restaurants and stadiums,

venues where alcohol is sold and consumed.

Proponents of the ballot initiative emphasized that Ashcroft had volunteered his

time and effort to support the initiative. That Ashcroft would volunteer to do the

NRA’s bidding, while ignoring the concerns of law enforcement and the business

community, on an issue far distant from his responsibilities as a U.S. Senator, demonstrates his unyielding fealty to the gun lobby. Fortunately, the voters of Missouri

heeded the warnings of law enforcement and business interests, and rejected Proposition B.

SUPPORT FROM THE GUN LOBBY

Ashcroft’s work in support of the gun lobby’s agenda has not gone unrecognized.

During the 2000 Senatorial campaign, the NRA gave Ashcroft an ‘‘A’’ rating, with

NRA chief lobbyist James Jay Baker telling The Hill newspaper, ‘‘We plan to do

whatever it takes to make sure John Ashcroft retains that seat.’’ 6 Baker was true

to his word. The NRA and other pro-gun groups reportedly spent close to $400,000

on his unsuccessful bid for a second Senate term.

Other extreme pro-gun groups have recognized Ashcroft as well. In March 1998,

the Citizens’ Committee for the Right to Keep and Bear Arms gave Ashcroft its ‘‘Gun Rights Defender of the Month’’ Award for leading the opposition to Dr. David

Satcher’s nomination as Surgeon General of the United States. Pro-gun groups opposed Satcher because he had served as head of the Centers for Disease Control

during a period when CDC was funding groundbreaking research into the dangers

of guns in the home. Much of this research was published in prestigious peer-reviewed journals such as the Journal of the American Medical Association.7

ASHCROFT AND THE SECOND AMENDMENT

Even more disturbing than Ashcroft’s unwavering record opposing gun safety laws

are his stated views about the constitutional significance of guns. In 1998 he convened a Senate Subcommittee hearing on the meaning of the Second Amendment

to the U.S. Constitution.8 At that hearing, Ashcroft set out his view of the purpose

of the Amendment:

Indeed, the Second Amendment—like the First—protects an important individual

liberty that in turn promotes good government. A citizenry armed with the right

to possess firearms and to speak freely is less likely to fall victim to a tyrannical

central government than a citizenry that is disarmed from criticizing government

or defending themselves.9

The Senator thus aligned himself with what has been called the ‘‘insurrectionist’’ view of the Second Amendment.10 According to this extreme and discredited theory,

the purpose of the Amendment is to give individuals the means to take up arms

against government officials if they become—in the gun owner’s view—‘‘tyrannical’’

or ‘‘despotic.’’

No court has adopted the insurrectionist theory. Indeed the federal appeals courts,

including the United States Supreme Court, unanimously have held that the Second

Amendment guarantees a right to be armed only in connection with service in a

459

11The United States Supreme Court held in United States v. Miller, 307 U.S. 174, 178 (1939)

that the ‘‘obvious purpose’’ of the Second Amendment was ‘‘to assure the continuation and

render possible the effectiveness’’ of the state militia, and it ‘‘must be interpreted and applied

with that end in view.’’ Every federal appeals court has agreed that the Second Amendment does

not entitle individuals a right to be armed for private purposes unrelated to service in a government-sponsored militia. No court has held that the Second Amendment ensures the right to be

armed in preparation for insurrection against the government. See Thomas v. City Council of

Portland, 730 F.2d 41, 42 (15 th Cir. 1984); United States v. Toner, 728 F.2d 115, 128 (2 nd Cir.

1984); United States v. Graves, 554 F.2d 65, 66 n.2 (3d Cir. 1977); Love v. Pepersack, 47 F.3d

120, 124 (4 th Cir. 1995); United States v. Johnson, 441 F.2d 1134, 1136 (5 th Cir. 1971); United

States v. Williams, 446 F.2d 486, 487 (5 th Cir. 1971); Stevens v. United States, 440 F.2d 144,

149 (6 th Cir. 1971); Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7 th Cir. 1999); United

States v. Nelson, 859 F.2d 1318, 1320 (8 th Cir. 1988); Hickman v. Block, 81 F.3d 98, 101 (9 th

Cir. 1996); United States v. Oakes, 564 F.2d 384, 387 (10 th Cir. 1977); United States v. Wright, 117 F.3d 1265, 1273 (11 th Cir.), cert. denied, 522 U.S. 1007 (1997); Fraternal Order of Police v. United States, 173 F.3d 898, 906 (D.C. Cir.), cert. denied, 528 U.S. 928 (1999). 12 Roscoe Pound, The Development of Constitutional Guarantees of Liberty, at 91 (1957). 13Gary Wills, Why We Have No Right to Bear Arms, The New York Review of Books, Sept.

21, 1995, at 69 (emphasis in original). 14Statement prepared for POINT BLANK, reprinted at http://www.ccrkba.org/defend1998.htm

(last visited Jan. 2001). 15Speech to Conservative Political Action Committee (‘‘CPAC ’’) on ‘‘Judicial Despotism,’’

March 6, 1997. 16See Peter G. Chronis and Katherine Vogt, ‘‘Militia suspect pleads guilty,’’ The Denver Post,

Feb. 11, 1998, available at 1998 WL 6102040; Brian Wheeler, ‘‘Militiaman’s appeal ‘utterly

meritless’ Federal appeals court upholds Battle Creek man’s conviction, finding he must finish

out sentence,’’ The Detroit News, July 7, 2000, available at 2000 WL 3483670.

state-organized militia.11 As historians and legal scholars have recognized, to read

the Constitution as sanctioning insurrectionist activity is to invite anarchy. Dean

Roscoe Pound prophetically wrote more than forty years ago:

In the urban, industrial society of today a general right to bear efficient arms so

as to be enabled to resist oppression by the government would mean that gangs

could exercise an extra-legal rule which would defeat the whole Bill of Rights.12

As Pulitzer Prize winning historian Gary Wills more trenchantly put it, ‘‘[o]nly

madmen, one would think, can suppose that militias have a constitutional right to

levy war against the United States, which is treason by constitutional definition (Article III, Section 3, Clause 1).’’ 13

It is deeply troubling that the nominee to become the chief law enforcement officer

of the United States would ascribe to the view that the Constitution contains within

its own text a guarantee of the right to prepare for resistance to government authority. Ashcroft’s sometimes extreme statements about the federal government heighten this concern. For example, as reported by the pro-gun Citizens Committee for the

Right to Keep and Bear Arms, he has likened ‘‘today’s power brokers and policy

wonks’’ in the federal government to ‘‘the European despots from whom our Founding Fathers fled,’’ and has explained that individuals be allowed to ‘‘keep and bear arms’’ because, ‘‘I am fearful of a government that doesn’t trust the people who

elected them.’’ 14 In objecting to a decision striking down a term limits law, he also

has referred to the Supreme Court as ‘‘five ruffians in robes’’ who ‘‘stole the right

of self-determination from the people.’’ He also vowed, ‘‘I will fight the judicial despotism that stands like a behemoth over this great land.’’ 15 Such comments could

be dismissed as merely overheated rhetoric, were it not for Ashcroft’s firmly-held

conviction that individuals have the right to be armed in preparation for violent

struggle against ‘‘despotism.’’ Ashcroft’s endorsement of the insurrectionist theory, and his strong condemnations of the federal government, raise disturbing questions. If the Second Amendment’s purpose is to keep government officials in check through the persistent

threat of armed revolt, then why does it not confer a constitutional right to own firepower—machine guns, hand grenades, surface-to-air missiles—to match that of the

government? And why would the Amendment not protect the right to form private

military forces that engage in preparation for civil war?

The implications of the insurrectionist theory have direct relevance to Ashcroft’s willingness to use federal power against extremist groups that threaten violence. In

Vietnamese Fisherman’s Association v. Knights of the Ku Klux Klan, 543 F. Supp.

198 (S.D. Tex. 1982), the KKK invoked the insurrectionist theory (unsuccessfully)

to argue that the Second Amendment protected its right to maintain a paramilitary

force. Paramilitary militia groups continue to use the same arguments to justify

their stockpiling of weapons. For example, one militia leader in Colorado was successfully prosecuted for illegally possessing a machine gun; another in Michigan

stockpiled an arsenal of weapons.16 How aggressive would Attorney General

Ashcroft be in moving against such extremist groups that are preparing for civil

460

17See Terry Ganey, ‘‘Three Senate candidates stake claim to job observers of Ashcroft predict

his spot in ideological spectrum,’’ St. Louis Post-Dispatch, Oct. 24, 1994, available at 1994 WL

8205549.

war? Would he be constrained by his deeply felt views of the meaning of the Second

Amendment?

ASHCROFT AND THE DEFENSE AND ENFORCEMENT OF GUN SAFETY LAWS

The gun lobby is never content to try to block gun safety legislation from being

enacted. Once the National Rifle Association loses in Congress, it challenges the

laws in court. It is the Attorney General’s responsibility to direct the legal defense

of gun laws. For three years, the NRA supported lawsuits against the Brady Act.

Would Attorney General Ashcroft have fought the gun lobby for three years to protect this sensible public safety law? How can John Ashcroft be trusted to vigorously

defend and enforce laws that he believes to violate our Constitution? How can he

be trusted to oppose the legal attacks of the very organizations to which he is beholden for past political support?

In courts throughout the nation, important federal gun laws are under legal attack. For example, in United States v. Emerson, 46 F. Supp. 2d 598 (N.D. Tex.

1999), on appeal, No. 99–10331 (5 th Cir.), the NRA has filed a legal brief supporting

the defense of a Texas doctor who threatened his estranged wife and daughter with

a semi-automatic pistol (and threatened to kill his wife’s friends with an assault

weapon). The NRA is fighting the doctor’s indictment for possessing a gun while

under a domestic violence restraining order, arguing that the federal law barring

such possession violates the Second Amendment. Will an Ashcroft Justice Department agree with this criminal defendant that the statute is unconstitutional? Would

it have even brought charges against this defendant?

In 1994, the NRA launched a constitutional attack on the federal assault weapon

ban, arguing that Congress did not have the power to enact the ban. The NRA was

dismissed as a plaintiff because it lacked standing to sue. NRA v. Magaw, 132 F.3d

272 (6 th Cir. 1997). Gun manufacturers and dealers took up the constitutional attack and their challenge also was dismissed. Olympic Arms v. Magaw, 91 F. Supp.

2d 1061 (E.D. Mich. 2000). The case is now on appeal. During Ashcroft’s 1994 Senate campaign, he said he would have opposed the assault weapon ban.17 In a 1998

letter to Sarah Brady, he called the ban ‘‘wrong headed.’’ (See Attachment B.) According to the insurrectionist theory of the Second Amendment, assault weapons are

the kinds of military guns needed by the citizenry to keep the government in check.

Can we count on Attorney General Ashcroft to vigorously defend this statute, which

has stopped the gun industry from flooding our nation’s streets with high-firepower

military guns? How vigorously will he enforce a statute he so strenuously opposes?

In Springfield Armory v. Buckles, 116 F. Supp. 85 (D.D.C. 2000), appeal docketed,

No. 00–5409 (D.C. Cir. Nov. 30, 2000), the gun industry is challenging the Clinton

Administration’s ban on the importation of assault weapons that use highcapacity

ammunition magazines. A federal judge upheld the import ban and the Justice Department is defending it on appeal. Will Attorney General Ashcroft be vigilant in

protecting the public from foreign-made assault rifles?

Given his record and rhetoric on guns, it is difficult to imagine an Attorney General so ill-suited to be the nation’s defender, and enforcer, of our gun laws.

CONCLUSION

Despite great progress against gun violence in the past several years, America

still faces levels of gun violence unheard of in the rest of the industrialized world.

Our nation loses over 30,000 lives every year to gun violence, including over 3,000

children and teenagers. Because guns travel easily across state lines, an effective

national strategy against this plague requires a strong federal response. Such a response requires strong laws and determined efforts to protect, and enforce, those

laws. The American people support strong gun laws and strong enforcement of those

laws.

John Ashcroft is opposed to the very laws he will be charged to protect and enforce. His opposition is doctrinaire, unyielding and rooted in his own deeply held

constitutional philosophy about the role of guns in society. His endorsement of the

‘‘insurrectionist’’ theory of the Second Amendment is wholly outside the mainstream

of American legal thought and dangerous in its implications. We do not question the

sincerity of Ashcroft’s views; indeed, it is that very sincerity that counsels against

confirmation. In the final analysis, it will not be possible for him to set aside his

deep philosophical convictions about ‘‘gun rights.’’ Those convictions are fundamenVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00474 Fmt 6601 Sfmt 6621 C:\HEARINGS\76342A.004 SJUD4 PsN: SJUD4
461

tally incompatible with the aggressive federal role in fighting gun violence that the

American people strongly support.

John Ashcroft will put our federal gun safety laws at risk. It is a risk not worth

taking.

MICHAEL D. BARNES

President, Handgun Control

DENNIS A. HENIGAN

General Counsel, Handgun Control

Chairman LEAHY. Thank you.

Professor Dunn?

STATEMENT OF JAMES M. DUNN, VISITING PROFESSOR OF

CHRISTIANITY AND PUBLIC POLICY, WAKE FOREST UNIVERSITY, WINSTON-SALEM, NC

Mr. DUNN. Thank you, Mr. Chairman, members of the committee. I deeply appreciate the opportunity to present testimony before

this distinguished Committee and respectfully announce at the outset that I am opposed to the confirmation of Senator Ashcroft to

be Attorney General. I testify for myself because I am not representing Wake Forest University, but I now teach at the Divinity

School of Wake Forest University.

From my perspective, the long history of Senator Ashcroft’s identification with and approval of the political agenda of right-wing

extremism in this country convinces me that he is unqualified and

unreliable for such a serious trust.

I speak primarily of one of his most notable initiatives, the socalled Charitable Choice legislation. A full frontal assault on the

First Amendment mars Senator Ashcroft’s career. He has favored

government-prescribed religious exercises in the public schools,

posting some version of the Ten Commandments, thereby secularizing sacred Scripture, and paying public monies for private and parochial schools. These outrageous initiatives, they pale compared to

one being considered to contribute Charitable Choice schemes. Senator Hatch has rightly and vigorously insisted, and I quote, ‘‘those

charge with enforcing the law must demonstrate the proper understanding of that law.’’ And that is the point at which I contend that

Senator Ashcroft has amply demonstrated that he does not understand the first freedom: Congress shall make no law respecting an

establishment of religion.

He has come down against settled law that he speaks of frequently, case law, and the American way in church/state relations.

It seems that he just doesn’t get it.

Now, that is the kindest and most generous interpretation of his

opposition to church/state separation. Either he has a blind spot,

a lapse, or he is one of those who would willfully and intentionally

destroy the doctrine of church/state separation that we have known

in this country.

He was also a party to an incredible abuse of the Free Exercise

Clause, keeping Missouri the only State in the Nation to exempt

church-sponsored day-care centers from fire, health, and safety regulations. One State-exempt center in St. Louis was found to have

100 children with two adults caring for them. Dog pounds in that

State have more State supervision than church-based child care.

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When government advances religion in any way, it inevitably becomes involved in religious practice. Charitable Choice, so-called,

allows and perhaps compels State governments to provide taxpayer-funded social services through pervasively sectarian institutions. My doctoral studies and 35 years of serving Baptists in social

justice agencies gives me a heightened appreciation of the separation of church and state as an essential protection for both vital

and voluntary religion.

As the principal architect of Charitable Choice legislation, Senator Ashcroft tacked it on to welfare reform in a last-minute vote

in August 1996. I and many others have been challenge the constitutionality of this legislation because we believe that the dumping of tax dollars on faith-based programs is dangerous. We cannot

afford to abandon the separation of church and state. It is the

greatest contribution of the United States to the science of government. And we cannot deny that the American way in church/state

relations, which involves the separation of institutions of religion

from the institutions of government, has been good for both the

church and the state.

It is clear that religious liberty’s essential corollary is the separation of church and state. When anyone’s religious freedom is denied, everyone’s religious freedom is at risk.

Having one’s tax dollars taken by government coercion and

turned over to pervasively sectarian outfits to do good threatens everyone’s civil and religious liberties. Some truisms are true: ‘‘He

who pays the fiddler calls the tune.’’ And there is no religion-related regime that I know of that wants the rules and regulations or

even the reporting that goes with government-handled money. It is

clear that most ministries sell their souls for a mess of politicstainted pottage the very day that they embark on the course of government gimmies.

One cannot assume that tax dollars will not change the nature,

even the freedom and effectiveness, of faith-based programs. It requires a leap of faith that even Kierkegaard couldn’t muster to

think that the source of funds will not shape to some degree the

programs that those funds pay for.

Practical partnerships between government and religion abound

already, but most Americans have absolutely no idea how significantly Charitable Choice schemes would and are changing current

law, or, worse, eviscerating religion’s vitality by developing a dependence upon tax money for church-based programs. Such plans

permit exactly what the Supreme Court repeatedly has prohibited—the use of government money to finance religious activities.

They offer an invitation to federally funded proselytizing with a

legal license thrown in to boot.

Now, I am acutely aware of the traditions of this august body

and generally appreciative of the high degree of mutual respect and

forbearance exhibited by Senators in their interaction with one another. And that is precisely what concerns me, because I see the

possibility that the U.S. Senate could sacrifice religious liberty,

civil rights, civil liberties on the altar of senatorial civility. I pray

that you will not do that, and I appeal to you not to confirm Senator John Ashcroft as Attorney General.

[The prepared statement and attachments of Mr. Dunn follow:]

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STATEMENT OF JAMES M. DUNN, PROFESSOR OF CHRISTIANITY AND PUBLIC POLICY

AT WAKE FOREST UNIVERSITY, WINSTON-SALEM, NC

Mr. Chairman and members of the Committee, I deeply appreciate the opportunity to present testimony before this distinguished Committee against the confirmation of Senator Ashcroft to be Attorney General. I’m profoundly aware this is

not a matter to be taken lightly and recognize and appreciate the profound seriousness of rising to oppose any president’s nomination to one of the most important

posts in our nation.

However, the long history of Senator Ashcroft’s identification with and approval

of the political agenda of religious, right-wing extremism in this country convinces

me that he is utterly unqualified and must be assumed to be unreliable for such

a serious trust.

While others are calling attention to his abuse of power in the confirmation process (not unlike the exercise in which you are engaged at this time), his support for

concealed weapons, his opposition to therapeutic abortions even in the most compelling cases, and his outspokenness against other civil liberties, I speak simply to my

concerns about one of his most notable initiatives, the so-called ‘‘charitable choice’’

legislation.

When government advances religion in any way, it inevitably becomes involved

in religious practice. It seems that ‘‘charitable choice’’ is a frontal assault on the

First Amendment’s Establishment Clause that forbids government from advancing

or becoming entangled in religious affairs. Yet ‘‘charitable choice’’ allows and perhaps compels state governments to provide taxpayer-funded social services through

pervasively sectarian institutions. My doctoral studies leading to a Ph.D in ethics

and 35 years of serving Baptists in social justice agencies, gives me a heightened

appreciation for the separation of church and state as an essential protection for

vital and voluntary religion.

The principal architect of ‘‘charitable choice’’ legislation, Senator Ashcroft, tacked

it on to welfare reform in a last-minute midnight vote in August 1996. I and many

others challenge the constitutionality of this legislation and the idea that it is simply allowing churches to use federal tax dollars for social programs that would otherwise be funded by government. This dumping of tax dollars on ‘‘faith-based’’ programs is extremely dangerous.

One cannot reconcile Senator Ashcroft’s role as reckless innovator with his history

as a rigid ideologue. And, although it’s been one of his most irresponsible initiatives,

it has been almost ignored by media critics.

As a people we cannot afford to abandon the separation of church and state, the

greatest contribution of the United States to the science of government. We cannot

deny that the American way in church-state relations has been good for the church

and good for the state.

It is clear that religious liberty’s essential corollary is separation of the structures

of state from the institutions of religion. When anyone’s religious freedom is denied

everyone’s religious freedom is endangered.

Having one’s tax dollars taken by government coercion and turned over to pervasively sectarian outfits to do good threatens, at least a little bit, everyone’s civil and

religious liberties. Some truisms are true, like ‘‘he who pays the fiddler calls the

tune.’’ There is no religion-related regime that wants the rules and regulations, even

the reporting, that goes with government-handled money. It is clear to most ministries that they sell their souls for a mess of politics-tainted pottage the very day

they embark on the course of government gimmies.

One cannot assume that taking tax dollars will not change the nature, even the

freedom and effectiveness, of faith-based programs. It requires a leap of faith even

Kierkegaard couldn’t muster to think that the source of funds will not shape to

some degree the programs paid for.

Religious leaders recognize the dangers inherent in ‘‘charitable choice.’’ Among the

national organizations opposed to ‘‘charitable choice’’ provisions are Protestant and

Jewish groups such as the American Baptist Churches, the American Jewish Congress, the Baptist Joint Committee on Public Affairs, Central Conference of American Rabbis, Church of the Brethren, United Methodists, Presbyterian Church USA,

United Church of Christ, and the Unitarian Universalist Church.

While . opposition to ‘‘charitable choice’’ does not automatically indicate that any

organization opposes the confirmation of Senator Ashcroft as Attorney General, it

does reflect the seriousness with which this mixing of church and state is seen.

Attached is a splendid article by Dr. John M. Swomley from Christian Ethics

Today, May-June, 2000, in which Mr. Ashcroft’s revisionist understanding of the religion clauses in the First Amendment is highlighted. Also attached is the position

statement of the Baptist Joint Committee on Public Affairs in the same vein. While

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the Baptist Joint Committee has never endorsed or opposed a nominee or appointee,

the attached resolution regarding ‘‘charitable choice’’ reflects the Committee’s serious concern with this divisive issue.

It’s ironic that a face card for faith like Senator Ashcroft is so willing to ignore

the first freedom: ‘‘Congress shall make no law respecting an establishment of religion’’. It’s not too much to call him a reckless innovator.

But then there’s the rigid ideologue side of the Senator. When it comes to civil

rights, civil liberties, concealed weapons, and abortion issues, he is clearly a rightwing extremist.

I am acutely aware of the traditions of this august body and generally appreciative of the high degree of mutual respect and forbearance exhibited by Senators

in their interaction with one another. I am concerned, however, about the possibility

that the United States Senate could sacrifice civil rights and civil liberties on an

altar of senatorial civility. I pray that you will not do that. I appeal to you not to

confirm Senator John Ashcroft as Attorney General.

‘‘CHARITABLE CHOICE:

f’’ AN ANALYSIS, BY JOHN M. SWOMLEY

When the welfare reform bill was before the Congress, Senator John Ashcroft of

Missouri amended it with what is known as the ‘‘Charitable Choice’’ provision. On

the surface the idea of involving charitable religious or other private organizations

in work with poor or needy persons sounds like a worthy cause, but it is not what

it pretends to be.

It is first and foremost an effort to have federal and state governments pay

churches, synagogues, and other charitable enterprises for what they are already

doing.

This device requires religious and other groups to sign government contracts

which make them become government agents rather than private organizations

doing good and helpful work as a part of their religious mission or reason for existence.

Therefore it is essential to examine carefully any legislative efforts to have government finance and direct religious and charitable enterprises which were organized as non-governmental agencies and religious, sectarian, or other ministries to

people.

1. The Charitable Choice provisions are part of a larger public law which is entitled The Personal Responsibility and Work Opportunity Reconciliation Act of 1996.

The legislation provides for federal ‘‘Block grants to states’’ as well as a state program ‘‘funded under Part A of Title IV of the Social Security Act.’’ What this means

is the states would be forced to enter contracts with and engage in government oversight of religious institutions, however sectarian. The world ‘‘forced’’ is used because

any religious organization could sue a state on the same basis as any other nongovernmental provider that wanted a government contract. That suit is possible because the law specifically provides that ‘‘neither the Federal’’ government nor a

State receiving funds under such programs shall discriminate against an organization which is, or applies to be, a contract. . .on, the basis that the organization has

a religious character.’’

2. If the State of Missouri, for example, were to provide any financial aid to religious organizations, it would violate the State Constitution and make it vulnerable

to lawsuits. That Constitution states ‘‘[No] money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such. . .’’ The

State could be sued if it violated its Constitution because the Constitution refers to

‘‘public’’ money—not just State money.

3. One of the ‘‘Charitable Choice’’ provisions would permit the provision of government social services in a house of worship and grant religious contractors a right

to display ‘‘religious art, icons, scripture or other symbols’’ in any area where government-funded service are provided.

4. The ‘‘Charitable Choice’’ provisions would permit religious contractors to discriminate for or against employees based on their religious beliefs, even though they

are paid with government funds.

5. Under the ‘‘Charitable Choice’’ provisions the religious organization, receiving

and expending funds shall be subject to government financial regulations and audits

unless it sets up a separate organization to do its work and disburse government

funds.

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6. The same law provides that no government contracts funds ‘‘shall be expended

for sectarian worship, instruction, or proselytization.’’ Yet it provides no enforcement

mechanism and explicitly forbids government control over the ‘‘practices and expression of its religious-beliefs.’’ In any event, the provisions against ‘‘worship, instruction or proselytization’’ is unenforceable because government may not monitor or

censor what churches express in their worship or other expression.

7. Although this law specifically provides that beneficiaries of religiously transmitted government assistance who object ‘‘to the religious character of the organization’’

can ‘‘within a reasonable period of time after the date of such objection’’ receive ‘‘assistance from an alternative provider’’ nothing in the legislation provides for notice

to be given to beneficiaries to inform in them of such a right or of the right not

to be subject to compulsory religious worship or proselytization.

8. The ‘‘Charitable Choice’’ legislation is likely to do serious damage to the religious mission of churches that already provide benefits to needy individuals with

private funds. If other religious organizations in the same area are funded by the

government more lavishly, there will be religious competition and in effect encouragement or ‘‘coercion’’ of non-participating churches to get into the government program.

9. If churches become government agents, one likely result will be less active participation by church members and increased dependence on government funds.

Many European countries have already gone done this slippery slope, thereby gravely damaging the attendance, stewardship, and spiritual vitality of their churches.

Finally, in almost every city and country there are numerous churches. Presumably

state governments cannot furnish each of them with funds either equally or equitable. Undoubtedly the churches, sects, or denominations with the most political influence would get government funding. When the government choose one or more

churches or other religious organizations over others or when churches seek government funds, there is thereby an establishment of religious organizations by the government.

It is evident that this legislation would seriously damage or destroy separation

of church and state by nullifying the First Amendment clause the government ‘‘shall

make no law respecting an establishment of religion.’’ This measure not only authorizes federal and state governments to fund churches and other religious institutions

‘‘on the same basis as any other non-governmental providers’’ but also to make them

agents of the state.

Are there alternatives to this blatant invasion of religious liberty? There certainly

are. One is for government directly to fund its own welfare program with paid employees who are trained for social service to persons in need.

Another is to provide a channel for religious and other charitable organizations

to make referrals to government agencies and even to share information about existing programs.

Still another is for legislatures to encourage private giving by tax incentives

which would allow income tax deductions for non-itemizers to deduct 50 percent of

their charitable gifts over a specified amount, such as $400 or $500.

Still another alternative is for religious organizations to form separate entities to

provide secular social services with tax money. This is already being done by the

Salvation Army, Church World Service, Lutheran Services, and Catholic Charities.

Among the national organizations opposed to ‘‘Charitable Choice’’ provisions are

Protestant and Jewish groups such as the American Baptist Churches, the American Jewish Congress, the Baptist Joint Committee on Public Affairs, Central Conference of American Rabbis, Church of the Brethren, United Methodists, Presbyterian Church USA, United Church of Christ, and the Unitarian Universalist

Church.

Among the secular groups opposing this scheme are the American Civil Liberties

Union; American Federation of State, County and Municipal Employees, Americans

United for Separation of Church and State, Americans for Religious Liberty, the National Education Association; the National Black Women’s Health Project; N.O.W

Legal Defense and Education Fund; People for the American Way; and others.

It is significant that not one far right religious organization opposed it, such as

the Christian Coalition, James Dobson’s Focus on the Family, or the Catholic Right

to Life movement. Was it because they oppose separation of church and state, or

because one of their chief spokesmen in the Senate, Senator Ashcroft, was advancing their agenda?

Certainly this ‘‘Charitable Choice’’ scheme violates the Establishment Clause of

the Constitution, numerous Supreme Court decisions, and the whole idea that people of religious faiths and none should not have their taxes used to support government financing of religious organizations or any religion.

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In short, the ‘‘Charitable Choice’’ concept strikes a heavy blow against the American doctrine of separation of church and state. Although the Congress has now

passed this legislation and the President has signed it into law, it is to be hoped

that the courts will overturn it on the clear basis that it is an egregious violation

of the First Amendment to the Constitution, the very cornerstone of our liberties.

RESOLUTION ON THE CHARITABLE

fCHOICE PROVISION IN THE NEW WELFARE ACT

From the founding of our country, Baptists have opposed the use of tax dollars

to advance religion. Baptists believe that, when the government funds religion, it

violates the conscience of taxpayers who rightfully expect the government to remain

neutral in religious matters. Knowing that the government always seeks to control

what it funds, Baptists have long rejected government’s handouts for their religious

activities. Government subsidization of religion diminishes religion’s historic independence and integrity. When the government advances religion in this way, it inevitably becomes entangled with religious practice, divides citizens along religious

lines and prefers some religions over others.

For these reasons, the Baptist Joint Committee opposes the so-called ‘‘Charitable

Choice’’ provision recently signed into law as part of the Welfare Reform legislation.

It is a frontal assault on the First Amendment’s Establishment Clause which forbids

the government from advancing religion or becoming entangled in religious affairs.

This provision will allow and perhaps compel state governments to (provide taxpayer-funded social services through pervasively sectarian institutions. If the aid is

voucherized, it can be used to fund religious worship and education. Finally, this

provision may well supersede state constitutional provisions that would prohibit

these funds from being used to advance religion.

There is a place for religious organizations in delivering welfare services with

public funds. But it should be done through separately incorporated affiliates that

do not engage in religious education, proselytizing or discrimination. That way, religious groups can preserve their theological purity and organizational autonomy,

while cooperating with government to deliver services to those in need.

The ‘‘Charitable Choice’’ provision runs counter to the interests of religious liberty

and church-state separation. Accordingly, the Baptist Joint Committee calls for repeal of the ‘‘Charitable Choice’’ provision of the Welfare Reform legislation.

DWIGHT JESSUP, CHAIR

Chairman LEAHY. Thank you, Professor Dunn. I note from your

bio you served as a pastor and a campus minister and a college

teacher, served on the Baptist Joint Committee and so on. I was

struck by something you said in your testimony about the childcare centers.

I am a parent, as are many on this panel, and I’m also blessed

to be a grandparent. I have always thought children are the most

vulnerable of our society and we should do everything possible to

protect them. We don’t ask what religion they are or anything else.

We just make sure they are protected, whether they are going to

school or they are going to a child-care center or anywhere else. So

could you elaborate just what the situation was that you were talking about? I think one thing that would unite every one of us on

this Committee is that we want our children protected.

Mr. DUNN. Yes, sir. For a number of years, there have been attempts to bring child-care centers in Missouri under the fire, safety, and health regulations that apply to non-church-related childcare center, and Senator Ashcroft has consistently opposed that

and continued to insist, as long as he had any influence in that

realm, that church-related child-care, day-care centers were exempt

from those State-imposed rules and regulations for fire, safety, and

health protection.

Chairman LEAHY. What are some of these fire and safety things?

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Mr. DUNN. Crowding, the number of children that would—overcrowding in the facility, the number of children that would relate

to each adult, the ratio between children cared for and the adults.

The fire protection facilities that are required in other public facilities, even though they are in church—

Chairman LEAHY. Fire escapes and things like that?

Mr. DUNN. Fire escapes and doors and windows and so on.

I am not completely at sea over this issue because for 10 years,

when I was the director of the Christian Life Commission in Texas,

Lester Roloff and Corpus Christi fought the State regulations for

fire, health, and safety that were proposed in Texas and finally

passed. After a survey was done, only three of over 600 church-related day-care centers opposed those protections.

I was outraged when I learned that the Missouri law had exempted church-related day-care centers, which account for a great

number of day-care centers, from the laws that protect children in

regard to fire safety and health regulations, food preparation, all

that sort of thing.

Chairman LEAHY. Am I misstating your position to say that if a

child is going to be in a child-care center, he or she should have

the same level of protection wherever he or she is?

Mr. DUNN. Absolutely.

Chairman LEAHY. His or her religion makes no difference.

Mr. DUNN. Absolutely.

Chairman LEAHY. A child is a child is a child.

Mr. DUNN. That is right.

Chairman LEAHY. Congressman Barnes, like a number of others

on this committee, I am a gun owner. I would guess that the majority of Vermonters are. I enjoy target shooting. To the chagrin of

some, I remind everybody I have a pistol range in my backyard of

my home in Vermont. I also believe, however, that in this nation

there are certain restrictions we are allowed under the Second

Amendment. Our legislative bodies have to vote on those things.

Some States require gun registration. Some do not. We have the

Brady law, and we have a number of other things for checking on

who can own a weapon, whether he or she is a felon or not.

We usually have pretty heated debates getting to those laws, but

if we pass them, we pass them. Then it is left to somebody to enforce them. The Attorney General gets to enforce them in each

State, and at the national level.

This applies not only for gun laws. The Attorney General also

gives advice and opinion on questions of law, as required under 28

U.S.C. 511, throughout the executive branch. You served here in

the Congress, and you know what is like. Somebody will come before you from Health and Human Services or from HUD or anything else saying, well, we have an Attorney General opinion saying under the law you passed, this is what we are allowed to do.

Now, Senator Ashcroft said he would follow all of the laws and

so on. He has stated some very strong views on civil rights, reproductive rights, and other matters, gun laws and so on in the past.

How confident are you that, as Attorney General, when a department, whether it is HUD or U.S. attorneys or anybody else, regarding gun laws or anything else, comes in and asks Attorney General

468

Ashcroft, ‘‘how do you interpret this? ’’ what are we supposed to do?

What are your views that the response will be objective?

Mr. BARNES. Well, thank you for the question, Mr. Chairman.

That is an extraordinarily important question, because the nominee

that the Committee is considering is an individual who has expressed a view with respect to gun laws that is so extreme that it

goes beyond even many of the pro-gun groups in the United States

that advocate here before the U.S. Senate. The view that he has

expressed is known as the so-called insurrectionist view, and that

is that Americans have a constitutional right to own guns so that

they can defend themselves against government officials if they believe those government officials are tyrannical or despotic.

When I came here to the U.S. Congress a couple of decades ago,

there were no guards at the doors. There were no barricades. There

were no metal detectors. It is hard to think that that was just so

recent, but there were no guards at the doors here in the government buildings. But over the past couple of decades, there have

been tragedies here in these very buildings on Capitol Hill that

caused the government to have to install metal detectors and

guards and all the rest. And that has happened at every Federal

facility in America because there are Americans who are prepared

to take violence against their government.

This is an extremist view of the Constitution which is held by

only a very tiny percentage. Perhaps one one-hundredth of 1 percent of the American people believe that the reason the Founding

Fathers put the Second Amendment in there is so that we can take

up arms against our government. But that is the view that Senator

Ashcroft has expressed and defended before this committee. And he

distorted the views of James Madison in order to defend that view.

He referred to James Madison’s writings in a way that was directly

contradictory to what every constitutional scholar believes Mr.

Madison was saying. Mr. Madison was saying the opposite of what

Mr. Ashcroft was saying to this Committee in Federalist Paper No.

46.

So this is a very troubling matter for American citizens who

want an Attorney General who will, in fact, in a responsible manner enforce the laws, and as you suggest, when asked to interpret

the laws, will do so in a way consistent with American precedent

and consistent with every court decision that has ever been made

on this matter. No Federal court has ever agreed with Mr.

Ashcroft’s view of the Second Amendment, and the Supreme Court

has said, and I quote, that it is ‘‘obvious’’ that this is not the correct interpretation of the Constitution.

Chairman LEAHY. Thank you, Congressman Barnes.

Senator Hatch?

Senator HATCH. Well, Mr. Chairman, I will put my statement in

the record. Just let the record show that I disagree very strongly

with both of your characterizations of John Ashcroft and his voting

record.

With that, that is good enough for me.

Chairman LEAHY. Senator Kennedy?

Senator KENNEDY. Thank you very much. I thank both of you for

your statements.

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Mr. Barnes, as I understand it, there are 12 children that die

from gun accidents every single day. Is that your understanding?

Mr. BARNES. Well, thank goodness, it is a little better now. It is

just under 11 children a day in the United States dying from gun

violence.

Senator KENNEDY. And one of the great challenges that we are

facing as a society is how, as a society that cares about children,

we are going to free ourselves from those kinds of terrible situations that scar families with human tragedy.

What does your own research show in terms of availability and

accessibility of guns to children? Does your research and does your

organization feel that the availability, the easy accessibility of firearms to these children contribute to that fact?

Mr. BARNES. Well, thank you for the question, Senator. I can’t

help but note—and I apologize to you, Senator for this, but I can’t

help but note that your presence in this room is a reminder to

every American that none of us is free from the danger of gun violence, not a President of the United States, not a Senator, not an

Attorney General. Your family and our country have suffered enormously because of gun violence.

There was a recent survey asking junior high school students in

the United States how long it would take them to get a gun, and

they said they could get a gun within a couple of hours. And that

is true virtually everywhere in America. This is not just a problem

in inner cities. It is a problem in our suburban communities.

In the last 24 or 48 hours, we have had school shootings in California, in Washington, D.C., in Maryland, a young boy killed in the

playground outside his school in my home State of Maryland the

day before yesterday. This is a terrible tragedy that affects our

children in every community in this country, and we as a Nation

obviously need to do much more to protect our children.

Senator KENNEDY. Well, when we have a record that is against

an effective closing of the gun show loophole the way that you have

described it, a record of opposition to the assault weapons ban calling it ‘‘wrong-headed legislation,’’ a record against child safety

locks, for banning the importation of high ammunition magazines— Mr. BARNES. Against banning.

Senator KENNEDY. Against banning the importation of high ammunition magazines—and then took out ads in favor of making

guns more available and acceptable and concealable in the State do

you think that kind of record sends a message to parents who are

concerned about the safety and security, even in schools or in their

homes or in the main streets of this country, that their children are

going to be safer or more secure?

Mr. BARNES. Well, unfortunately, it actually has been a priority

for Mr. Ashcroft to fight against common-sense provisions that

would make our communities and our children safer. It has been

a priority for him. This is something he has focused on throughout

his career, and if it were just a matter of his voting along with

other Senators, perhaps our organization would not have felt compelled to, for the first time in our history, come out in opposition

to a nominee for a Federal position.

Senator KENNEDY. Well, now, let me ask you this: Senator

Ashcroft has indicated that in the three cases that are currently

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now out on the Brady bill and challenging the assault weapons

ban, that he will enforce the law, and also that he will support the

assault weapons ban. Should that be enough for those who are concerned about the proliferation of weapons in our society? I am accepting the given that we need to have vigorous prosecution at the

Federal level and at the State and local level. We will put that

aside. We are all in support of that. But just on the questions of

availability and the accessibility, now that he has said that this is

his position, should that be enough to ease our anxiety on this

issue?

Mr. BARNES. Well, we don’t believe so, Senator. The Attorney

General sets the priorities for the Department with respect to the

litigation. The U.S. Government under administration after administration, Republicans and Democrats, has vigorously attempted to

enforce these laws and to defend cases.

Based on Mr. Ashcroft’s record, there is no reason to believe that

he would want to do that. In fact, he opposed all of these laws. So

even though he has testified that he will enforce them, there is certainly no reason to believe that he would do so with any enthusiasm or would instruct the United States attorneys to vigorously

defend these laws, as they are currently doing in case after case

across the country.

Senator KENNEDY. So you think there would be—my time is up.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you.

The Senator from Arizona, Senator Kyl.

Senator KYL. Thank you, Mr. Chairman. I join Senator Hatch in

strongly objecting to the views expressed by Mr. Barnes with respect to the Second Amendment and will join in his submission to

the record to clarify the real historical basis for the Second Amendment. And I would also like to insert a piece in the record that appeared in today’s Washington Post, a column by Charles

Krauthammer, which more than refutes the biased and extremist

comments of Professor Dunn.

I have no questions.

Chairman LEAHY. The senior Senator from California, Senator

Feinstein.

Senator FEINSTEIN. Mr. Barnes, first of all, let me thank you for

your very good work. You know I am a fan of your organization and

of what you are doing, and I think in many respects everything you

do will hopefully make this Nation a safer place for people.

I am concerned on the issue of concealed weapons, and I am concerned as a person that has actually had a concealed weapon permit. In 1976, I was the target of a terrorist organization. They put

a bomb at my house, and they actually shot out windows. And so

I had a concealed weapon permit from the chief of police, a weapon,

and trained in the use of that weapon. I was also young enough

and at the time strong enough to really believe that I could make

a difference if someone came after me. You know, I didn’t want to

be held hostage. I had a different view of things.

I gave up that permit when arrests were made and have never

possessed a weapon since that time. I want to make that clear because certain organizations use that against me. But I learned a

lot about guns, having a gun, carrying a weapon, knowing what it

471

could do, knowing what it couldn’t do, being trained at a police

range by police officers.

Having said that, I can think of nothing worse than letting everybody have concealed weapons, with no training. Having watched

the increase of road rage, having seen people kill each other over

parking spots, a concealed weapon philosophy to me is the height

of irresponsibility.

Could you spend a few moments more in detailing that proposition that was on the ballot, what it actually would do, and comments that were made by Senator Ashcroft about it at the time?

Mr. BARNES. Well, thank you for your question, Senator, and

thank you for your leadership on this issue. I, too, know a little bit

about what guns can do. I served in the United States Marine

Corps and was trained in the use of some pretty high-powered

weapons and had the same sense that you do about this question.

In 1999, the gun lobby sought to get enacted into legislation in

Missouri a very extensive concealed weapons carry law that would

permit the citizens of that State to carry guns virtually anywhere.

Senator FEINSTEIN. How would they get a permit?

Mr. BARNES. I don’t know the specific procedure by which they

would receive that permit under the law that was sought. As I understand it, the legislature passed; the Governor vetoed it. Or perhaps the Governor’s threat of veto caused the legislation not to

pass it. I am not positive on that.

But, in any event, Governor Carnahan was opposed, and so the

gun lobby took this to initiative and put it on the ballot. It was the

only item on the ballot. It was in April when nothing else was

being voted on, there were no other elections, nothing else being

voted on, and the gun lobby was confident that their supporters

would come out and vote for it and that it would easily pass.

But citizens of Missouri organized opposition to it, and it was defeated, and it was defeated because people came to understand that

they did not want to go to a football game in St. Louis or Kansas

City and know that large numbers of other people there would be

carrying hidden guns. And they didn’t want to go to bars or restaurants or other places and know that large numbers of people

would be carrying weapons.

Senator Ashcroft argued that Missourians would be safer if more

people were carrying guns, and he supported this through personal

appearances and radio ads. I don’t know what the members of this

Committee believe, but I don’t know that I would feel safer in this

Committee room if we thought that half the people here were carrying handguns. But that is the view of some people, and that is

apparently Senator Ashcroft’s view.

It was defeated by the voters of Missouri.

Senator FEINSTEIN. Do you have any information on his record

or his thinking with respect to felons being able to get so-called relief from disability and obtain weapons?

Mr. BARNES. Yes. This is another controversial issue. The gun

lobby has argued and its supporters in the Congress have argued

that felons, convicted felons, after serving their time, should be

able to get the privilege of carrying a gun back. And Senator

Ashcroft has had that view.

Senator FEINSTEIN. Thank you very much.

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Thanks, Mr. Chairman.

Chairman LEAHY. Thank you, Senator.

The senior Senator from Ohio, Senator DeWine.

Senator DEWINE. Thank you, Mr. Chairman.

Professor Dunn, to summarize your testimony, I take it that you

are vehemently opposed to Charitable Choice.

Mr. DUNN. Yes.

Senator DEWINE. And you disagree with Senator Ashcroft on the

issue. Correct?

Mr. DUNN. Profoundly— Senator DEWINE. Yes or no? Yes or no? This is summary.

Mr. DUNN. Yes, I disagree with him on Charitable Choice.

Senator DEWINE. Thank you.

Chairman LEAHY. Did you want to elaborate?

Mr. DUNN. I would like to add one short paragraph, two sentences. I am absolutely convinced— Senator DEWINE. I think I understand your testimony. I just

want to make sure. My only point is that is your testimony, that

is a summary of your testimony, and we appreciate it for that fact.

You are welcome to elaborate, but— Mr. DUNN. The only elaboration— Senator DEWINE. That is my summary of your testimony, and it

is a legitimate public policy debate that we can have.

Mr. DUNN. My point is simply on Charitable Choice that we have

not had a legitimate public policy in either the House or the Senate

on the issue of Charitable Choice. And with all due respect, I would

like to suggest or challenge the Members of the House and the Senate to do their homework about the very dangerous issue of dumping tax dollars into pervasively sectarian institutions. We have debated vouchers and other issues, but I don’t think we have yet

begun to debate the Charitable Choice issue, and I hope you will

do your homework on some of the things that need to be done on

Charitable Choice.

Senator DEWINE. Professor, I appreciate it. It is a legitimate

public policy debate. Thank you.

Mr. DUNN. I hope we have it. I don’t think we have had it yet.

Chairman LEAHY. The Senator from Illinois.

Senator DURBIN. Thank you, Mr. Chairman. I thank the members of the panel.

I would say at the outset I am glad that—I don’t think he is here

at this moment. I wish Senator Kyl were here. But I read the

Krauthammer piece in the Washington Post this morning. I don’t

know if you have had a chance to read it, Professor Dunn. But I

thought the point he was making was somewhat different than

your point. He was arguing for tolerance of religious belief, and you

are raising the question about taxpayers’ funds going to religious

institutions.

Mr. DUNN. Exactly. A very different point.

Senator DURBIN. Two different points as I see them, too. And let

me say at the outset, Senator Ashcroft is very proud of his religious

beliefs and heritage, as he should be. He made a point of that in

his opening statement and noted his father’s work in his religion.

And I frankly do not know the tenets of his religion. If I were

asked, I couldn’t tell you what they are. I know from reading press

473

accounts that he doesn’t dance and he doesn’t drink. I don’t think

that is relevant to the position of Attorney General as to whether

or not you imbibe or dance. I don’t know what Attorney General

Reno’s position is on dancing and drinking, and I really don’t care.

I think that—I want to make it clear for the record so that there

is no misunderstanding. I don’t think anyone in the course of this

hearing has raised any question about Senator Ashcroft’s religious

beliefs, nor should they. And the chairman has repeatedly made

that point and admonished the witnesses who suggested it that

that is not relevant to this debate. What is relevant is the public

record of John Ashcroft, period.

Mr. DUNN. I agree completely, and I am concerned about extremism, whatever its source might be. I am not interested in the

deep motivations or the theological presuppositions that bring one

to extremist public policy positions. But my bias and extremism

that Senator Kyl referred to is largely verbatim right out of the

United States Supreme Court decisions.

Senator DURBIN. Well, I am anxious to—I hope the Committee

accepts your invitation to have a hearing on this Charitable Choice,

because I come to it with mixed feelings, and I would like to try

to sort out a position that is a sensible one and consistent with our

constitutional principles. And I hope that we will invite you back

for that purpose.

I would also like, Mr. Chairman, at the request of Senator Feingold, I understand there was a hearing last night in St. Louis of

the Women’s International League for Peace and Freedom that had

a long list of invitees, and Senator Feingold has asked me, since

he can’t be here at the moment, to request that a transcript of that

hearing be made part of the record, if there is no objection.

Chairman LEAHY. Without objection.

Senator DURBIN. Let me also direct a question, if I can, to Congressman Barnes.

Congressman Barnes, we served together, and I am glad to see

you here in this capacity, and thank you for good work. But I

would tell you that your rendition of John Ashcroft’s record on gun

issues is John Ashcroft B.C.—before confirmation. John Ashcroft

B.C., in fact, did everything that you have said, but in the last few

days, we have heard a different approach. He has said: I am in a

new role, I am no longer an advocate, and, therefore, I will enforce

many of the laws that I actively campaigned against and voted

against. And if I am not mistaken, he specified three that I might

remember here: the Brady law, triggerlocks, and the assault weapons ban.

And so he is suggesting that even if he opposed them, as Attorney General he can enforce those laws and used examples as Missouri Attorney General when, despite his own personal and religious beliefs about the distribution of religious material, he stopped

that from happening in his State.

Now, that question has been raised, but I think it is worth revisiting. Why do you feel that he cannot draw this clear line between

past conduct and past public record of 25 years and his suggestion

that as Attorney General he will take a different approach?

Mr. BARNES. Well, thank you for your question, and it was an

honor to serve with you in the House.

474

Let me answer in two parts. First goes to an earlier question,

and that is, what would the priorities be of an Attorney General,

and based on his 25 years of fighting against all of these laws— and not just being against them, but being a leader in the fight

against them—one would assume that he would not make a priority of the enforcement of the law. That is just common sense.

The second part of my answer would be that he has explained

in the past and before this Committee that his view of the Constitution is such that he would have a difficult time in rendering

opinions as Attorney General with respect to gun laws, rendering

opinions that are consistent with the past practice of the Department of Justice under both Republicans and Democrats and consistent with the court rulings of every Federal court in our history.

He takes a very extremist view of the constitutional—of the way

in which the Constitution addresses the issue of gun ownership in

America. And it is on the basis of this extremist ideology—and it

can only be described in that way because his view goes beyond

that of even some of the pro-gun organizations with which we are

all familiar—that we believe it is almost impossible to believe that

he would aggressively enforce these laws which he fought against.

Senator DURBIN. I guess the question that keeps returning is this

whole notion of settled law, and it comes up again and again. And

it was, I guess, the underpinning of John Ashcroft’s promise, that

if it is settled law, I will enforce it.

In the area of choice, when we went into specifics, his answers

were not so specific and final. And I worry about those.

But when it comes to the question of our laws and court decisions relative to firearms, I think it is fair to say that there will

be cases testing State laws and new concepts on a regular basis,

and the new Attorney General will have to decide when the Solicitor General will weigh in and how they will weigh in, whether

there will be an amicus brief filed, whether there will be some

memo filed, provided to Members of Congress and the administration, the enforcement by U.S. attorneys, the involvement of U.S.

Marshals in enforcing law. I think on a regular basis there will be

a question of how much will be dedicated to it and in what way.

I hope that that is a fair characterization of what you have just

described as the responsibilities that he might face.

Mr. BARNES. Well, that is right, and it is not an academic question. The Attorney General faces these decisions almost on a daily

basis. There is an important case with respect to the constitutional

issue of gun ownership wending its way through the Federal courts

at this very time, and the Justice Department is vigorously defending the law. Would Attorney General Ashcroft direct his subordinates to continue that vigorous defense? Based upon his view of

these issues, as articulated in the Senate and in speeches that he

has made and in writings, one would believe that that is unlikely.

Senator DURBIN. Thank you very much.

Thanks, Mr. Chairman.

Chairman LEAHY. Thank you.

Senator Sessions?

Senator SESSIONS. Well, Senator Ashcroft has stated clearly that

the Constitution protects an individual’s right to keep and bear

arms. That view is supported by me, Senator Feingold, Senator

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Schumer, I think Chairman Leahy. I know he votes less than

half—I see one number, less than half the time for handgun control. And according to recent polls, a majority of Americans agree

with that.

I am concerned, Mr. Barnes, that your distortion of his quote

about James Madison’s view of the Second Amendment is not correct, and I think it was read in the record here the other day and

explained adequately.

I would note that at the hearing recently in that constitutional

law Subcommittee, of which Senator Feingold, I believe, is the

ranking member, Senator Feingold said this about the purposes of

the Second Amendment: ‘‘The purposes include self-defense, hunting, sport, and some certainly would say, as would I, the protection

of individual rights against a potentially despotic central government.’’ Well, I think that is what James Madison had in mind. I think

whether we agree with that or not, I believe that is an accurate

history of the Constitution. I believe Professor Laurence Tribe, the

liberal Harvard professor, agrees with that. So I just want to say

that.

No. 2, there was a suggestion about an Attorney General opinion.

When he was Attorney General of Missouri, he issued an opinion

that I will tell you, as an Attorney General in Alabama, was a

tough opinion to issue. And that was that assistant district attorneys were not, I assume—in Alabama the rule is they are not law

officers and they could not carry weapons, which is a tradition of

many prosecutors. They believe—they are trying cases, they are

calling these people criminals in court. They are afraid for their

lives. He issued an opinion contrary, I am sure, to the overwhelming number of prosecutors in his State they could not do so under

the law of Missouri. That doesn’t sound like somebody who will

refuse to obey the gun laws.

There is a chart up here, Mr. Barnes, that shows gun prosecutions under Reagan and Bush. I was a Federal prosecutor during

that time. Those gun prosecutions went up every year. It was a

high priority of my office as a Federal prosecutor. It was a high priority of every office because the Attorney General insisted on it.

Have you criticized, ever, the Clinton-Gore Department of Justice, Janet Reno’s Department of Justice, for allowing those prosecutions to plummet as they did?

Mr. BARNES. We have consistently urged strong prosecution of

the—

Senator SESSIONS. Have you ever criticized the Democratic Department of Justice for allowing those prosecutions to fall publicly?

If so, I would like to hear where it was.

Mr. BARNES. We have criticized those here in the Congress, including Senator Ashcroft who voted against funding for the ATF

and the Justice Department to adequately enforce the laws.

The administration requested funds for additional prosecutors,

additional ATF agents. The gun lobby fought against this, as I am

sure the Senator is aware. Senator Ashcroft helped lead the right

against adequate funding for prosecution of gun laws. I do not

know what the source of this chart is— Senator SESSIONS. Mr. Barnes?

476

Mr. BARNES.—but the statistics that I have seen—

Senator SESSIONS. I have had hearings.

Mr. BARNES.—indicate there has actually been an increase of at

least 16 percent in Federal gun prosecutions under Attorney General Reno.

Senator SESSIONS. I have had hearings on it.

Mr. BARNES. That is the information I have seen from reputable

independent sources.

Senator SESSIONS. That is the source of Syracuse University, but

I had hearings on it in my Subcommittee. I have raised it with Attorney General Reno every time she appeared before the committee, the 4 years I have been in this office.

This administration, while condemning people who won’t pass

more and more laws that burden innocent law-abiding citizens, has

allowed gun prosecutions to decline precipitously. They have come

up in the last 2 years after all the hearings we have held and after

taking a lot of abuse, but it is disappointing to me that a supposedly non-partisan organization like yours would criticize Senators who have serious constitutional problems with some of the

legislation that comes forward. You would criticize them and their

integrity and mine because I didn’t vote for all of these laws, but

I had a task force to prosecute gun prosecutions.

I put out a newsletter to local police and sheriffs to tell them

what kind of cases I would take, and our prosecutions went up dramatically because I believed in enforcing laws against guns that

are legitimate and all laws against guns, whether I believed they

were legitimate or not, and I did so—

Mr. BARNES. That is our view as well, Senator, and we commend

you for your effort to strengthen the prosecution of gun laws. We

strongly support that.

Senator SESSIONS. Well, Senator Ashcroft has committed before

this panel publicly to reverse this decline and get the numbers up,

and I believe we will have a lot more effect on gun crime by prosecuting criminals with guns than to always passing more laws that

burden honest people. That is my view. You may disagree.

I would note that he did vote for the gun show ban which was

hotly disputed by some people on final passage of the juvenile justice bill. That was a pretty intense vote, wasn’t it, Mr. Barnes?

Mr. BARNES. Well, he voted against it when it mattered.

Senator SESSIONS. He voted with Senator Hatch’s bill the first

time, and on a close vote, the other bill prevailed, the Lautenberg

bill, and he voted for it on final passage. To say he is an extremist

on guns is not correct. There are a lot of people that would disagree

with that, and I think you are being unfair to him and I question

whether you are nonpartisan for not criticizing the Department of

Justice for a massive failure to prosecute.

My time is up. Thank you.

Chairman LEAHY. Finish your thought.

Senator SESSIONS. For not criticizing them for failure to prosecute, but criticizing Senator Ashcroft for wrestling with some

tough constitutional questions about where the Second Amendment

properly applies.

477

Mr. BARNES. Mr. Chairman, could I just have 30 seconds to respond on the first point the distinguished Senator made with respect to this constitutional issue?

Chairman LEAHY. Of course. You may respond.

Mr. BARNES. Let me just quote from former Chief Justice Warren

Burger, who as the Senator may know was a lifetime hunter and

gun owner who was appointed by Senator Nixon, and he emphasized the danger of perpetuating the view that Senator Ashcroft

has stated before this Committee with respect to the Second

Amendment to the U.S. Constitution.

Chief Justice Burger said this is, and I quote, ‘‘One of the greatest pieces of fraud, and I repeat the word ‘fraud.’ ’’ That is his repetition, not mine, ‘‘One of the greatest pieces of fraud, and I repeat

the word ‘fraud,’ on the Americans public by special interest groups

that I have ever seen in my lifetime.’’ That is a quote from Chief

Justice Burger about this extremist view of the Second Amendment

that has been articulated by Senator Ashcroft, and it is a dangerous view, Senator Sessions.

I would just suggest to you that the United States Senators and,

God forbid, an Attorney General saying to people, you have a constitutional right to take up arms against your Government if you

think it is despotic or tyrannical, that is a bizarre view. Do we really believe that our Founding Fathers put in the Second Amendment a right to do this when they put in the Constitution other

more reasonable ways to change your Government if you don’t like

it?

Senator SESSIONS. I just noticed a disputed view, and Senator

Feingold disagrees.

Mr. BARNES. You can vote against. We have elections in this

country. That is how you change your Government, not by using

guns. We have a process to amend the Constitution of the United

States. That is how you change your Government, not by using

guns. It is bizarre to believe that our Founding Fathers thought

that American citizens should have the right to weapons in order

to defend themselves against their Government. That was not

James Madison’s view. That was not the view of any of our Founding Fathers, and every court that has ever looked at this issue in

the history of our country has said that that was not a constitutional view.

Chairman LEAHY. The distinguished Senator from Alabama has

mentioned crimes rates again. As I said before, I would hope that

if Senator Ashcroft is affirmed as Attorney General, then he would

pay some attention to what the current administration has done

because, while we saw a consistent rise in violent crime for the 12

years prior to the Clinton administration, we have seen a consistent drop in the violent crime rate since the Clinton administration

arrived. I think that should be noted.

I also note that the Senator from New York is here, but before

we go to that, Senator Hatch read into the record various items

and letters. I will put into the record a letter of January 18th,

2001, from Ambassador James Hormel to both Senator Hatch and

me.

I wish to read a couple points in it that are pertinent to the debate we have had here. ‘‘In response to Senator Leahy’s question’’—

478

this is Ambassador Hormel speaking—‘‘In response to Senator Leahy’s question about why Mr. Ashcroft was willing to vote against

my nomination without attending my Committee hearing or submitting any written questions for me to answer, and subsequently

refusing to meet with me, Mr. Ashcroft responded, ‘I had known

Mr. Hormel for a long time. He had recruited me to go to the University of Chicago Law School,’ and then Mr. Ashcroft stated several times he had voted against me ‘based on the totality of the

record.’’’ Ambassador Hormel says in his letter, ‘‘I want to state unequivocally and for the record that there is no personal or professional relationship between me and Mr. Ashcroft which could possibly support such a statement. I cannot recall ever having a personal conversation with Mr. Ashcroft. I have had no contact with

him of any type since I have left my position as Dean of Students

at the University of Chicago Law School nearly 34 years ago in

1967. For Mr. Ashcroft to state that he was able to assess my

qualifications to serve as Ambassador based on his personal longtime relationship with me is misleading, erroneous, and disingenuous. Furthermore, in my role as Dean of Students, I did not recruit students to the law school. For Mr. Ashcroft to state that he

recruited me to the law school implies a personal and direct relationship which simply did not exist,’’ and he concludes with, ‘‘I find

it personally offensive, Mr. Chairman, under oath in response to

your direct questions would choose to misstate the nature of our relationship, insinuate objective grounds for voting against me, and

deny his personal viewpoint about my sexual orientation by any

role in his actions. Sincerely, James C. Hormel.’’

It will be part of the record.

Chairman LEAHY. I yield to the distinguished senior Senator

from New York.

Senator SCHUMER. Thank you, Mr. Chairman.

I guess my first question is aimed at Mr. Barnes, and ‘‘aimed’’

being an appropriate verb, I guess, unintentional, but appropriate.

I guess the question I have is let us say, hypothetically, we have

an Attorney General who would implement the wishes of the NRA

as Attorney General. How would enforcement and how would policy

in the administration change?

Mr. BARNES. Well, thank you, Senator, for the question. Thank

you for your important leadership on trying to make our community safer. You have been a true champion for many years.

This is not an academic question either because Senator Ashcroft

has a very close relationship with the National Rifle Association.

The NRA said last year that it was among their highest priorities

to get him reelected to the U.S. Senate, and they and other gun

groups spent many hundreds of thousands of dollars in support of

his reelection last year. He has, to my knowledge, never taken a

position as a U.S. Senator in opposition to the NRA. So it is a very

important question.

Obviously, the National Rifle Association and other groups of

that type strongly oppose all these laws that the Attorney General

is called upon to enforce and would seek the weakest possible enforcement thereof since they oppose them strongly and oppose their

continuation.

479

They have been sending out information to their supporters that

they will have a ‘‘pro-gun’’ Attorney General if Mr. Ashcroft is confirmed, and they are obviously very much hoping that he will be,

that they will have an Attorney General who would be listening to

them and paying attention to their concerns and their views.

This would be of enormous concern to those of us who support

the laws that are on the books that he strongly opposed as a

United States Senator.

Senator SCHUMER. Could you give us some specifics? Are there

workings within the Justice Department, within the ATF, where,

of course, the Attorney General doesn’t have jurisdiction, but, at

least from my experience active in this issue, often has a lot of say

because the two agencies work together?

Mr. BARNES. There is a case right now in the Federal courts that

the Justice Department has been very vigorously defending in

which a citizen of Texas was accused of violating Federal gun laws,

and this individual has been claiming a constitutional right to not

abide by Federal gun laws. The Justice Department has been very

strongly making the case to the courts in Texas, Federal court and

now in the appellate court, that these gun laws should be enforced.

One wonders whether in this particular instance, for example,

which is going on right now, a very important case, an Attorney

General with the views that Mr. Ashcroft has would vigorously continue that.

Senator SCHUMER. The NRA is soret of anomalous to me. They

believe in enforcement in terms of sentencing criminals who have

guns. It is something I support.

Mr. BARNES. We all support that.

Senator SCHUMER. We all support that.

Mr. BARNES. Everybody supports that.

Senator SCHUMER. But when we try to go after gun dealers, my

office came up with a study which I think raised a lot of eyebrows

and changed our direction that 50 percent of the crime of guns

came from 1 percent of the dealers.

The NRA has been reluctant to either affirmatively provide a

support provision of the resources to do that, and, second, actually

they support things that put barriers in the way. You cannot computerize records. An ATF record cannot be on the premises of a gun

dealer, all sorts of things like this.

Do you have any knowledge? We did not have enough time to get

into asking Senator Ashcroft those questions, although I have to

say I was glad to hear that he thought that registration and licensing was not unconstitutional under the Second Amendment. I give

him credit for saying that.

But do you have any idea of the direction that he as Attorney

General might—and obviously, this is speculative—pursue in terms

of going after errant dealers?

Mr. BARNES. Well, again, one would have to assume, based on

his record, that this would not be a priority. It is a very important

issue, as you point out, Senator. There is a tiny minority of gun

dealers in America who really provide the vast majority of guns for

criminals, and the Federal Government should be progressively

pursuing them. Based upon Mr. Ashcroft’s history and the fact that

480

his supporters in the gun lobby would oppose those kinds of actions, one would doubt that he would vigorously take those actions.

Senator SCHUMER. Thank you, Mr. Chairman.

Chairman LEAHY. Senator Specter?

Senator SPECTER. Congressman Barnes, in my discussions with

Senator Ashcroft, he has stated to me a keen interest in a number

of the operations which have been conducted in Richmond, the

Eastern District of Pennsylvania, on Federal court prosecutions of

people who violate the laws with guns.

We have the armed career criminal bill which has brought the

Federal Government, as you know, into prosecution which relates

to street crime if you have three or more serious offenses, and that

includes burglary and robbery if caught in possession of a gun, you

can get what is the Federal equivalent of a mandatory life sentence

of 15 years to life. That is one of the items which many of us have

been pressing to deal with people who violate the law with guns

on the career criminal category where it is estimated that as many

as 70 percent of violent crimes are committed by career criminals.

To what extent would you give Senator Ashcroft credit on the g

understand issue for activism on that point?

Mr. BARNES. We strongly support efforts to increase prosecution

and to go after the career criminals as the Senator suggests, and

we would commend any Senator, Senator Ashcroft or any other

Senator that would support that.

Senator SPECTER. Well, that is one of the points which has concerned me over the years, the issue of sentencing. At one time as

D.A., I asked the Board of Judges of Philadelphia County to put

out a directive of a 1-month sentence of somebody who is convicted

of carrying a concealed deadly weapon which seemed to me very,

very nominal, the kind of battle which I fought in the 1960’s and

1970’s on the issue of sentencing.

One of the first bills that I produced when I came to Congress

was the armed career criminal bill. I had a lot of trouble finding

any support for bringing the Federal Government into the issue of

street crime, but we had many of these career criminals who were

given very light sentences in State courts and I wanted to send

some of them down to the Federal court to get a mandatory life

sentence, 15 years to life, and then they go back to the State

courts, they would enter guilty pleas, maybe 5 to 10 or 7–1⁄2 to 15,

but I think Senator Ashcroft’s commitment there is an important

item on the issue of dealing with guns.

Mr. BARNES. This is an interesting dynamic, and that is that everybody supports strong enforcement of the gun laws. Certainly, we

do, but there is a contradiction here that many say that that is all

we need to do, and that we do not need child safety locks to protect

our children, do not need to close the gun show loopholes to keep

criminals from getting easy access to guns at gun shows, we do not

need an assault weapons ban, we do not need to ban cop killer bullets, et cetera, et cetera.

Our view is that we need both. We need common-sense restrictions on easy access to weapons by people who shouldn’t have

them, and we need very tough enforcement.

You mentioned Richmond and Philadelphia. I have had conversation with the police chief in Richmond about the good work that

481

they are doing there in cooperation with the Federal authorities

there, including the United States Attorney, to crack down on

crime, and they have had some real success in Richmond.

So we strongly support those initiatives that you and others have

taken a leadership role on, Senator.

Senator SPECTER. Professor Dunn, on the issue of freedom of religion—and I appreciate your comments that we had a little discussion during the break before you started to testify—it is a matter

of obviously enormous importance in this country.

There has been a question of religious profiling which I do not

think has been undertaken by anybody on this committee, and the

two aspects of the First Amendment freedom of religion deal with

freedom to pursue one’s own religion and to stop the Federal Government from intertangling the Government with religion.

Do you think that there is any limitation on appropriate inquiry

in the confirmation process about allowing one’s religious views to

be one’s private matter, but any limitation on saying how is that

going to affect your duty to enforce the other half of the First

Amendment to keep Government out of religion?

Mr. DUNN. I think the confirmation process obviously has a great

deal of freedom to pursue the philosophy and the constitutional understandings and the political advocacy of anyone who comes before

this committee. Not only this committee, Senator Specter, but our

whole Nation has a stake in one’s philosophy of public policy and

how it is shaped.

I was in Texas in 1960 when there was an appropriate anxiety

about John F. Kennedy’s religion, and he dealt with it in the most

wonderful and frank and forthright way. He met with those who

were questioning whether his philosophy about public policy and

the Constitution and Government would be unduly affected by his

religious background.

He met with those folks and assured them, 500 preachers in

Houston, Texas, that he would stand for the First Amendment as

an advocate of church-State separation and religious freedom, and

then he did it very courageously in one or two instances that were

notable, and I think it is appropriate to ask, just as Congressman

Barnes has, about one’s philosophy of extremism regarding the Second Amendment.

I have concluded—and I know you don’t all agree with this—that

Senator Ashcroft has an extremist philosophy regarding the First

Amendment which would slight the importance of church-State

separation and misunderstand the importance of the free exercise

as he did with contending consistently that Missouri could be the

only State in the Nation that does not require church-based day

care centers to abide by health, safety, and fire regulations. So I

think it is a legitimate question that we look at the outcomes and

the public policy philosophy. I don’t agree that we ought to probe

into their religious beliefs. I believe very strongly in Article VI that

there should be no religious test for public office, and we certainly

have no basis for doing that.

Senator SPECTER. A brief concluding comment. There have been

some who have said that opposition to Senator Ashcroft arises because of his deeply held religious views, almost a question of religious profiling. And I think it is important to give America assurVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00495 Fmt 6601 Sfmt 6602 C:\HEARINGS\76342A.004 SJUD4 PsN: SJUD4
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ance that that is not what is going on here, and that there is a line

of inquiry to be sure that there will be separation of church and

state as he would carry out the duties of Attorney General if confirmed, and that there is not any heavy hand of religious profiling

or any inappropriate inquiry as to Senator Ashcroft’s religious

views.

Mr. DUNN. I would agree with that completely.

Senator SPECTER. Thank you.

Chairman LEAHY. Senator Hatch, do you have anybody further

on your side?

Senator HATCH. I think we are completely through.

Chairman LEAHY. And let me check with the staff here. Senator

Feingold? On his way. Let us just wait.

Just so I understand where we are—incidentally, to follow up on

what the Senator from Pennsylvania said, I would emphasize again

what both Senator Hatch and I said at the outset of these hearings,

that there are no religious tests here. We probably have about

every religion possible represented on this panel, and this would be

the last panel in the world to have any.

We are going to hear questions from Senator Feingold, then dismiss this panel, and have a couple of final statements from Senator

Hatch and myself.

Senator HATCH. Could I just take one moment, Mr. Chairman?

Chairman LEAHY. Of course.

Senator HATCH. I read Mr. Hormel’s letter, and he admits he was

dean of students, admits that he had gone to various universities,

maybe not to recruit, but at least talk about the University of Chicago, and then he implies that the only reason John Ashcroft had

for voting against him was because he was a gay individual.

Now, as one who supported him as Ambassador for Luxembourg,

I have to say this. I remember at least one professor at my law

school 40 years ago, was so bigoted, I would not support him for

dog catcher. And it was because of the experience I had in law

school. So for him to just say—believe that everything is coming

down at him because he is gay is just wrong, especially since Senator Ashcroft said that was not what entered into his decisionmaking, or at least certainly, I thought, made it clear to me.

So I just wanted to set that record straight. I mean, I would not

have supported this one law professor, like I say, for anything, because he was a total bigot, political bigot as well, and a very smart

guy, and that was 40 years ago. I have to say I had a relationship

with him in the sense of knowing him, taking classes with him,

and taking discussions with him. I suspect that that is in the context of what Senator Ashcroft meant. I just wanted to make that

clear.

Chairman LEAHY. The letter, of course—the letter speaks for

itself.

Senator HATCH. Yes, I think it does.

Chairman LEAHY. And it does say—Ambassador Hormel says, ‘‘I

want to state unequivocally and for the record that there is no personal or professional relationship between me and Mr. Ashcroft

which could possibly support such a statement.’’ Senator HATCH. I can accept that.

Chairman LEAHY. And—

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Senator HATCH. But I can see how John meant the law, you

know, in law school. Go ahead.

Senator KYL. Mr. Chairman, I know we are waiting for Senator

Feingold as the last person to ask questions. Might I just ask what

the Chair’s intention is, since we are now essentially at—apparently at the conclusion of the hearings, and what is the Chair’s intention?

Chairman LEAHY. That is a good question.

Senator KYL. How long tonight will the record be open? What

else needs to be done and how will we be proceeding?

Chairman LEAHY. I think some of this may have been mentioned.

Well, you were out. I should emphasize again for the record, as I

have said several times, that a number of Senators from both sides

have had to go in and out because we have got a number of confirmation hearings going on at the same time.

We are waiting for the final part of the nominee’s paperwork to

come in. Assuming that it is going to be in today—and I understand from Senator Hatch that he has assurances that it will be

completed today—instead of doing the normal procedure of leaving

the record open for a week, we are going to keep the record open

until close of business Monday so that we can have any follow-up

questions—some have already been submitted—but follow-up questions to the witnesses and to the nominee. Of course, the time for

any Committee meeting would be in the purview of Senator Hatch

next week. Our normal meeting days I think are Wednesdays.

Senator HATCH. I intend to mark this up next Wednesday, and

I want everybody to be aware of that.

Chairman LEAHY. Thursday. Thursday. I am sorry.

Senator HATCH. What is next Thursday?

Chairman LEAHY. I said the normal day was Wednesday.

Senator HATCH. I hope we are not going to rely on technicalities.

I mean, my gosh, this is a cabinet-level position.

Chairman LEAHY. It is going to be your choice to call— Senator HATCH. I told you Wednesday. I have said it for a week

now, and I do not see any reason why to delay.

Chairman LEAHY. Orrin, Orrin, Orrin, now calm down, calm

down.

Senator HATCH. I am not calm.

Chairman LEAHY. Calm down. You can call the meeting any time

you want.

Senator HATCH. No, I want some cooperation, and I feel you will,

and I intend to mark it up on Wednesday. I hope we can do that.

Chairman LEAHY. The staff, both staff reminded me when I said

our normal meeting day was Wednesday, that it is Thursday.

Senator HATCH. Sure.

Chairman LEAHY. I just did not want to leave it on the record

to suggest that it is otherwise.

OK. Senator Feingold apparently is not coming. Then I would—

we have a couple more comments to make, but certainly these two

witnesses have been extremely patient, having stayed here for a

long time. You have our thanks and our gratitude from the committee. I will let you step down.

Mr. BARNES. Thank you, Mr. Chairman.

Mr. DUNN. Thank you.

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Chairman LEAHY. This hearing has something of a—I am trying

to think of the best way to state this. It has something of a modern-day Cinderella quality. You know, as the clock approaches midnight, that part. It seems like many things are not what they actually appear to be. The Senator Ashcroft we have come to know over

the past 6 years was an implacable foe of a woman’s right to

choose, of affirmative action, of equal rights for gay citizens. He

was a determined, tireless, and, I note, effective advocate for his

point of view.

What we have seen over the past 4 days, however, has in many

ways been breathtaking. In Senator Ashcroft’s mind, Roe v. Wade

is now settled law. Senator Ashcroft not only endorses the assault

weapons ban, he will now lobby President-elect Bush to extend it.

He will now apparently have no qualms about aggressively enforcing laws to protect gays and lesbians. He will now apparently enforce the laws and programs on affirmative action, the same laws

and programs that he opposed for so long, having taken the same

oath of office that the Attorney General of the United States takes.

Now, in the spirit of bipartisanship, and given all of our pledging

to work well together—and we have tried to do that in this committee—I will not characterize what we have seen during the first 2

days of these hearings as a confirmation conversion. I might suggest that it is a confirmation evolution, in fact, a fairly rapid confirmation evolution. We have pressed ahead since Tuesday afternoon to hear from the nominee, and, by my count, 12 witnesses in

support of this nomination, and a representative sampling of witnesses strongly opposed to this nomination. We have accommodated the witnesses that the Republicans have requested to testify.

We even interrupted our proceedings on different occasions to hear

from Republican Senators and Representatives, both in office and

out of office, who wished to be heard.

We are concluding, as I said, at noontime because somebody else

needs this room, and I am trying to be respectful of the Inauguration that takes place tomorrow, because the focus tomorrow should

be on the new President. He deserves that and the country deserves that.

And at noon tomorrow, in accordance with Senate Resolution 7,

the chairmanship of this Committee will revert to Senator Hatch.

I might say on a personal basis that I have enjoyed working with

him on our reversal of roles, and I understand even better what

Senator Hatch has said to me—oh these many times during the

past few years—‘‘Pat, do you think it is easy being chairman of this

place? Do you think it is easy trying to keep everybody in line?’’

Orrin, I should have listened more carefully.

Senator HATCH. I do not care if you listened. Just be more tolerant in the future.

Chairman LEAHY. I want to thank all of our witnesses, both for

and against for their testimony, and for cooperating with the Committee under these extraordinary circumstances. I want to thank

especially Congresswomen Maxine Waters and Sheila Jackson Lee

for staying past 9 o’clock on Wednesday night in order to be heard.

I want to apologize in a way to the last panel, Professor Dunn

and Michael Barnes. The schedules forced us to cut into their time,

485

and they have had to stay here way beyond the time we thought

they would.

Now we are going to assemble the record and all the submissions

that have been made to it. The members of the Committee should

now have the opportunity to review the record and do written questions for the nominee and other witnesses. Once the record is complete, and the nominee’s paperwork is complete, I am going to work

with the incoming chairman, Senator Hatch, so we can have

prompt consideration of this important nomination by the committee.

I understand the nominee’s financial disclosures and other aspects of the standard submission remain outstanding. We were

only provided with a sample of speeches and writings, rather than

the comprehensive submission that this Committee has insisted

upon, and as the nominee, himself, has insisted upon in prior years

for other nominees. I note that one of my questions to the nominee

was about his speech on judicial despotism. The nominee had not

included this in his submission, but I felt it was important because

I thought it contained inflammatory comments about his view of

the role of the courts and thus is relevant to consideration of his

nomination.

To go back to the opening part of my statement when I said the

clock reaches midnight in this Cinderella saga, I wonder what will

happen when the clock does strike midnight. At the time the Senate votes on Senator Ashcroft, will everything go back to what it

was? You know, the coachmen turn into mice, the carriage turns

into a pumpkin—whether where old policy positions become dominant, and whether the John Ashcroft we have seen over the past

few days perhaps reverts to the John Ashcroft we have watched

vote all these years.

Frankly, as I said before, I wish our incoming President had sent

a nomination for Attorney General who would unite us rather than

divide us. I wish that there had been another position in his incoming administration where he could have used the talents of Senator

Ashcroft. That did not happen. This was the nomination before us.

And our Committee has done the best we could to handle this nomination fairly and fully. It has been difficult. We all know John

Ashcroft. We have served with him. I do not know a Senator who

does not like him. I do not know a Senator who does not respect

him and his commitment to his family, and appreciates the friendships he has with so many of us in both parties. As we said before,

however, we should not operate under club rules. We operate under

the Constitution to advise and consent.

There are 280 million people in this country—a very diverse 280

million. The President-elect has said he wants to unite us, not divide us. Of those 280 million Americans, only 100 get to vote on

this question. The 100 of us must look deeply into our souls, and

make sure that we are representing the country as best we can. In

many ways, on a variety of levels, I have been unsettled by the testimony this week, and I know when I go back to my home in Vermont after this weekend after the Inauguration, I will look forward

to the solitude of the mountains and the fields, and my farmhouse,

where I can sit and think about this, and I would encourage all

members of the Committee to do the same.

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Senator Hatch?

Senator HATCH. Thank you, Mr. Chairman. I want to thank you

for conducting decent and honorable hearings, and for the good efforts that you have made to work with me and other Republicans

and Democrats on the committee. I think we have had a good

cross-section of people and their particular viewpoints and views

with regard to Senator Ashcroft and the Justice Department.

But I also think that we have seen some attempts here to undermine a truly good man. The fact of the matter is, is that I do not

know of one Senator in the whole U.S. Senate who would disagree

with the statement that this is an honorable man of integrity, that

when he says he will do something, he will do it. I do not know

anybody who, looking at his record and his life, who would conclude that John Ashcroft is anything but one of the finest people

they have ever met.

Now, you can have differences on issues, and you can have differences on interpretations of a person’s record. I think some of the

arguments on the school desegregation do not take into consideration half of the problems that Attorneys General go through, including Nixon, who was the Attorney General who succeeded, as I

recall it, John Ashcroft, who has been just as criticized by Mr. Taylor as John Ashcroft was. The fact of the matter is, is that that is

what makes this country great, that we can differ and we can raise

issues, and that we can be for or against somebody if we want to.

And I really believe it is very important to this body that we not

reject a good man. I do not think we will, and I would be very

upset if we do, because I think there have been some things done

here throughout these hearings that were very detrimental to my

concepts of what is decent and right. I think there has been some

testimony here that was outrageous, some of which I would not

even take the time to ask questions of, because I think on its face

was outrageous, and some of which I did take some time to ask

questions.

But here is a man who has almost 30 years of public service to

this country, 8 years as Attorney General of his State of Missouri,

during which time—again I will repeat it—he was elected by his

peers, the 50 state Attorneys General, Democrats, Republicans, to

become the President of the Attorneys General Association, National Attorneys General Association. Then he became Governor of

Missouri and there were difficult problems in Missouri, like other

states. There is no simple waving of a wand that can solve every

racial problem that existed in Missouri and perhaps other states as

well. And some come in here acting like he should have just done

everything to change everything that they thought should be

changed. The fact of the matter is, is that John Ashcroft served 8

years as Governor of Missouri, and was elected by his peers, all 50

Governors of this country, Democrats and Republicans, as chairman of the National Governors’ Association. And every Senator I

have talked to said that the 6 years that John Ashcroft served in

the Senate, he is a man of his word, he is a man of integrity and

decency.

And I agree, and I have really appreciated Senator Leahy making it clear that we do not have a religious test in this country, and

yet there have been people trying to make a religious test out of

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John Ashcroft’s fervent religious beliefs, which he defined, in very

interesting and accurate terms, as compelling him to do what is

right, that if he ever had his religious beliefs contradict what he

was doing as Attorney General, he would resign before he would

do something wrong, or if he would violate a law that was passed.

Now, that is a pretty strong commitment.

John Ashcroft is a good man. He has been in the Attorneys General mix for over 20 years by various Republican Presidents. And

I have to say he deserves to be treated like a good man.

And last but not least, there are some who would play politics

with this nomination in their zeal to try and convince certain segments of our society that only Democrats care for them. That is offensive. It is beyond belief. But that has shown up during these

hearings. And I personally resented it, because the people on our

side feel just as deeply about racial and minority matters as any

Democrat, and John Ashcroft cares.

Again, these have been interesting hearings. This is what makes

America great, that we can, in open forum, discuss these issues.

And I ask people to be fair, in the media, in the Congress, and in

general. And if you are fair, then we are going to be lucky to have

a man who has a reputation of getting rid of crime as Attorney

General of the United States, which after all has been kind of overlooked as we have gone through over 20 witnesses with no specific

law enforcement officer called. That is what the Attorney General

is all about in many respects, and that is what is making this land

safe and free.

And I have no doubt that John Ashcroft will be fair to all people,

and that he will enforce the law as he has promised to do under

his religious commitment and otherwise, as he has promised to do,

even if he disagrees with that law. That has been his reputation,

and I suggest we ought to take this good man of integrity at his

word.

Thank you, Mr. Chairman.

Chairman LEAHY. Thank you.

I have often said the Senate can be and should be the conscience

of the Nation. All 100 Senators must now search their conscience

for how they will vote on this.

This confirmation hearing into the nomination of John Ashcroft

to be Attorney General of the United States is now recessed.

[Whereupon, at 12:16 p.m., the Committee was adjourned.]

[Questions and Answers and Submissions for the Record follow.]

[Additional materials including facsimile cover sheets and published court opinions are being retained in the Committee files.]

QUESTIONS AND ANSWERS

Responses of the Nominee to questions submitted by Senator Biden

1. You have sponsored legislation that would require drug testing of all prisoners

before their release and would prosecute those who test positive for drug use. But

you did not provide funding for drug treatment in your bill.

As Attorney General, you would oversee more than 500 drug courts nationally,

and you would oversee treatment for prisoners in federal prisons and grants to

states to treat prisoners in their systems.

Question: Do you support drug treatment for criminals as effective crime prevention? Would you vigorously support existing prison-based treatment and work with

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me to ensure that treatment is provided for those in the criminal justice system who

need it?

Answer: Yes. I fully support prison-based treatment for criminal offenders. I look

forward to working with you to make it as effective as possible.

2. Two offices within the Department of Justice are very near to me: the COPS

office and the Violence Against Women Office. We have had very strong and effective directors of these offices over the last six years.

Law enforcement officials and those concerned about domestic violence have not

stopped calling, writing, and faxing me since your nomination was announced, wondering whether these offices will receive a strong commitment from the Bush Administration.

I strongly support the objectives of the COPS program to place more beat police

on the streets of our nation’s communities. In the last Congress I was a cosponsor

of your reathorization bill for the COPS program. President Bush has pledged to

maintain the current level of funding for the COPS program, but has also pledged

to increase the flexibility of the program so that state and local authorities can determine where the money can best be spent. I look forward to working with you to

achieve our mutual goals for the COPS program consistent with the flexibility goals

previously stated by the President. I also have been a strong supporter of the Violence Against Women Act and look forward to working with you to achieve the goals

of that act.

Question: If confirmed as Attorney General, how important would it be for you to

maintain a separate COPS office within the Department to recognize the federal

commitment to state and local law enforcement agencies across this country?

Answer: As I stated in my previous answer, I am a strong supporter of the COPS

program. The President has stated his support for maintaining the current funding

levels of the program as well as giving it greater flexibility in order to demonstrate

his strong commitment to state and local law enforcement agencies across the country. I look forward to working with you to achieve our mutual goals for the COPS

program consistent with the flexibility goals previously stated by the President.

I appreciate the fact that you signed on as a co-sponsor of the Violence Against

Women Act of 2000, as we were making the final push to enact the legislation. Senator Hatch and I had 74 co-sponsors, including 29 Republicans.

The Violence Against Women Office within the Justice Department was created

in 1995 to implement the Act. The office works to ensure enforcement of criminal

provisions in the Act, assists the Attorney General in formulating relevant policy,

and coordinates and administers grants funded by the Act. Many advocates of policies designed to curtail domestic violence have suggested that this Office should be

a permanent, independent entity within the Department, with a director who would

be presidentially appointed and confirmed by the Senate and would answer directly

to the Attorney General or the Deputy Attorney General.

Question: If confirmed, will you support a bill to create this office?

Answer: As I have previously stated, I am a strong supporter of the Violence

Against Women Act and strongly support full funding in order to achieve its objectives. I am reluctant to express a view on the creation of new statutory entities

within the Department until I have had the chance to study the performance of the

entities which exist now. I look forward to working with you to make this program

as fully effective as possible.

Question: Will you maintain a strong Violence Against Women Office and what

qualities would you look for in a new Director?

Answer: I believe my previous answer expresses my strong commitment to the Violence Against Women Act. I obviously will look for the best possible director to

carry out the duties of the Violence Against Women Office, one committed to the

high priority of enforcing the law and helping ensure the safety of women throughout America.

3. Even the most conservative analysts agree that the 1994 Crime Law that I

worked on for five years to pass has been a significant factor in the historically low

crime levels throughout our country. Crime is down for the eighth straight year, according to F.B.I. reports, to the lowest levels in 30 years.

The key element of the Crime Law was the commitment to put 100,000 new police

officers on the streets across America. We delivered under-budget and ahead of

schedule.

To date, the COPS office in the Justice Department has funded more than 109,000

new officers.

More than 2,100 of these new officers are in your home state, Missouri, which has

received $129 million in Crime Law funds for new police officers over the last six

years.

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Question: As Attorney General, would you fight for continued funding for the

COPS program and other Crime Law programs?

Answer: As I stated in a prior answer, I strongly support the objectives of the

COPS program to place more beat police on the streets of our nation’s communities.

In the last Congress I was a cosponsor of your reathorization bill for the COPS program. President Bush has pledged to maintain the current level of funding for the

COPS program, but has also pledged to increase the flexibility of the program so

that state and local authorities can determine where the money can best be spent.

I look forward to working with you to achieve our mutual goals for the COPS program consistent with the flexibility goals previously stated by the President.

Question: As Attorney General, would you support in the inter-agency process the

bill I introduced last year to put 50,000 more police officers on the street?

Answer: I assume your question refers to the COPS program reauthorization bill

I cosponsored with you in the last Congress. As previously stated, I continue strongly to support the objectives of and funding for the COPS program. I look forward

to working with you to achieve our mutual goals for the COPS program consistent

with the flexibility goals previously stated by the President.

4. Question: Would you support five-year re-authorization of the Violent Crime Reduction Trust Fund to support law enforcement and domestic violence programs?

Answer: While I cannot take a position on this specific legislation, I am fully committed towards combating violence, and will vigorously enforce any federal legislation enacted toward that end.

5. As your predecessor will attest, I track implementation of the grants and programs in the Violence Against Women Act very closely. Your state, Missouri, received $16 million in Violence Against Women Act grants over the past six years, plus an additional $5.7 million in funds for domestic violence shelters.

Question: If confirmed, what will your commitment be to implementing and tracking progress of the Violence Against Women Act of 2000?

Answer: If confirmed, I pledge to you that I will be strongly committed to implementing fully the requirements enacted in the Violence Against Women Act of 2000.

6. The Violence Against Women Act of 1994 and its re-authorization passed last

year create programs that have bolstered prosecution of child abuse, sexual assault,

and domestic violence cases; increased services for victims by funding shelters and

sexual assault crisis centers; and increased resources for law enforcement and prosecutors.

Question: Under your leadership, how will the Justice Department work to end

violence against women?

Answer: One of the most important things that the Justice Department can do to

work to end violence against women is to enforce the laws in this area fully and

fairly. If I am confirmed, this is precisely what the Justice Department will do.

Question: Will the Violence Against Women Office continue to collect data and report on intimate partner violence, sexual assault, and stalking?

Answer: If confirmed, I will ensure that the Violence Against Women Office takes

all actions necessary to fulfill the Justice Department’s duty to implement the Violence Against Women Act fully and fairly.

7. The Violence Against Women Act established several federal crimes: interstate

domestic violence, interstate violation of protective orders, and interstate stalking.

These laws have led to dozens of federal prosecutions.

Question: Will you continue to enforce these laws vigorously?

Answer: Yes.

Question: What would your administration do to train and support U.S. Attorneys

in the continued prosecution of these federal crimes?

Answer: If confirmed, I will be fully committed to prosecuting the federal crimes

under the Violence Against Women Act, and will take steps to ensure that all U.S.

Attorneys are aware that this is a priority.

8. Many have called for a federal hate-crime law. In June 2000, Senator Kennedy

proposed a Hate Crimes Bill that would extend criminal protections to targeted communities by adding gender to covered categories.

Question: Will you support passage of a federal hate-crime law to include crimes

based on gender?

Answer: As Governor of Missouri, I was proud to have signed the first hate crimes

legislation to be enacted in the State of Missouri. I agree with the President in supporting Senator Hatch’s hate crimes legislation, which passed the Senate last year.

Question: Will you support expansion of the Hate Crimes Statistic Act to include

collection of data on gender-based hate crimes?

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Answer: I would need to study the details of the current coverage of the act and

the issues raised by expanded coverage before reaching a final determination. However, as Governor of Missouri, I was proud to have signed the first hate crimes legislation to be enacted in the State of Missouri. I agree with the President in supporting Senator Hatch’s hate crimes legislation, which passed the Senate last year.

9. As demonstrated in the legislative history of the Violence Against Women Act,

which includes seventeen state gender-bias studies, our justice system has a significant problem: discrimination in treatment of gender-based cases. There is also evidence of widespread race discrimination in the criminal system, especially in the

prosecution and conviction of rape cases.

Question: Will your office continue to support programs and training to eradicate

race and gender bias within the courts and among prosecutors?

Answer: Yes.

Question: What will you do to ensure eradication of race discrimination in state

prosecution of rape cases?

Answer: If confirmed as Attorney General, I will fully enforce all federal civil

rights laws, including the Fourteenth Amendment. Together, these laws prohibit

states from enforcing their criminal laws in a racially discriminatory manner.

10. The Children’s Health Act enacted in October 2000 contains a number of important drug bills, including the methamphetamine bill that you and I worked to

pass. This Act included an anti-addiction medication bill that Senator Hatch and I,

along with Senators Levin and Moynihan, worked very hard to pass. The legislation

allows qualified doctors to prescribe certain anti-addiction medications from their offices, rather than specialized drug- treatment clinics. This new concept will require

time to take hold -- time for doctors to be trained and patients to start taking the

medication and time for results to be collected and analyzed.

Question: I hope—and I would bet that Chairman Hatch also hopes -- that, as Attorney General, you would let this very important and innovative program go forward. Can Senators Hatch, Levin, and I have your commitment that you will help

this program go forward?

Answer: I pledge that if confirmed, I will fully and faithfully enforce the Children’s Health Act, just as I will fully and faithfully enforce all laws duly enacted

by Congress.

11. One of the most important components of the Department of Justice is its

Civil Rights Division, which enforces federal statutes prohibiting discrimination on

the basis of race, sex, handicap, religion, and national origin.

Historically, the most important tool the Civil Rights Division has wielded in enforcing the law is the so-called pattern-or-practice suit. As the name implies, this

tool allows the Division to go after patterns of discrimination, rather than the misdeeds of individuals. For instance, the Civil Rights Division has used pattern-orpractice litigation to reach consent decrees with several law-enforcement agencies.

The problem there was rooted not so much in discriminatory conduct by individual

officers, but in policies and patterns those agencies adopted years ago that no longer

reflect our law.

Question: Can we have your full commitment to the use of pattern-or-practice litigation in enforcing our civil rights laws?

Answer: If confirmed as Attorney General, civil rights will be a top priority for

the Department of Justice. Indeed, the Department has a special charge and solemn

responsibility to enforce our nation’s civil rights laws vigorously. In so doing, the

Department will use all reasonable and appropriate enforcement tools at its disposable, to effectuate those goals.

12. Most crime occurs in after-school hours when many children are unattended.

Question: What role do you see for the federal government in crime prevention

in general and in after-school programs in particular, such as those conducted by

Boys and Girls Clubs?

Answer: The President has explained that he is firmly committed to promoting

after-school programs. In particular, he has stated that he would introduce legislation to open 100 percent of the 21st Century program’s funding to competitive bidding. This will allow youth development groups, local charities, churches, synagogues, mosques and other community and faith-based organizations to compete for

these federal funds on an equal footing with schools. In addition, he has stated that

he will empower lower-income parents by providing certificates to help defray the

cost of after-school activities of their choosing—whether run by a community group,

a neighborhood church, or a local school. He has indicated his desire to add an additional $400 million a year to the Child Care Development Block Grant to the states

to help 500,000 low-income parents pay for after-school programs. As Attorney General, I will fully support the President’s initiatives in these areas.

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Responses of the Nominee to questions submitted by Senator DeWine

YOUNGSTOWN PRISON

In Youngstown, Ohio, there is a privately run, medium security prison that

houses inmates from the District of Columbia prison system. This is a modern, fully

operational prison facility that employs 500 people and is a significant part of the

economic development of that region of my state.

Currently, that facility is only half-filled. By September, the D.C. contract will expire, and the inmates will be transferred. If nothing is done, this prison will sit

empty and those jobs will be in jeopardy.

At the same time, the federal system is overcrowded and the Bureau of Prisons

is looking for new sites to build prisons. The Department is also facing a lack of

prison space for undocumented criminal aliens.

Something needs to be done to fill Youngstown and the Department has plenty

of need for beds. This really seems like a case where everyone will win if the Department either buys the facility or agrees to send prisoners to Youngstown. The

Department needs more prisons, and you need to house prisoners until you get the

additional space.

Question: Will you take a look at Youngstown and help me fix this problem?

Answer. Although I am not presently familiar with the situation, I will be happy

to look into it, consult with the experienced professionals at the Department and

the Bureau of Prisons, and work with you on a constructive solution.

Responses of the Nominee to questions submitted by Senator Feingold

fCIVIL RIGHTS

Question 1: What are your priorities for the U.S. Department of Justice, particularly the Civil Rights Division?

Answer: My highest priority is to ensure that the Department of Justice lives up

to its heritage of enforcing the rule of law, and in particular, guaranteeing legal

rights for the advancement of all Americans. However, as I mentioned during the

hearing, one of my highest priorities at the Department will be to target the unconstitutional practice of racial profiling.

Question 2: What is your view of the role of the Civil Rights Division?

Answer: I believe that the Civil Rights Division must be at the forefront of carrying out the special charge of the Department of Justice to combat injustice and to

ensure that all Americans are treated fairly and free from invidious discrimination.

Question 3: In response to a question I posed about DOJ Pride (a voluntary organization of gay, lesbian and bisexual DOJ employees), you indicated that you would

not discriminate against ‘‘any group that [is] appropriately constituted in the Department of Justice.’’ Please explain how you define ‘‘appropriately constituted’’ and

indicate whether you believe DOJ Pride fits that definition.

Answer: In my testimony I stated that I would not tolerate discrimination against

any employee at the Department of Justice because of sexual preference. That answer stands. When I referred to any ‘‘appropriately constituted group,’’ it was because I am unaware of what current Department policies are regarding organization

of professional as well as other employees. Until I am fully briefed on these and

other personnel policies I am not in a position to express an opinion on any particular organization or group of employees and whether or not they are ‘‘appropriately

constituted.’’ However, assuming this organization is appropriately constituted

under existing Department policies, I have no intent to change those policies or

treat this group differently than any other.

Question 4: In response to a question about the policy Attorney General Janet

Reno instituted that sexual orientation not be a factor for FBI security clearances,

you indicated that you were ‘‘not familiar’’ with this policy. Now that you have had

a chance to become familiar with it, will you continue and enforce this formal policy?

Answer: A review of FBI clearance policies, and FBI policies generally, will be an

ongoing process at the Department of Justice. Consistent with my prior answer regarding discrimination based upon sexual preference, I do not anticipate changing

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security clearance policies which have previously received broad acceptance within

the government, to the extent which I will have any authority in the matter.

Question 5: Given your strong opposition to Mr. James Hormel to be the U.S. Ambassador to Luxembourg and your opposition to the Employment Non-Discrimination Act, can you assure this Committee that you would not consider sexual orientation in making recommendations to the President on federal judicial nominees or

high ranking Justice Department officials?

Answer: As I have previously stated, my opposition to Mr. Hormel was based on

the totality of the specific facts and circumstances of that particular case. My opposition to him in no way reflects a past or future intent to discriminate against anyone based on sexual preference. I have repeatedly committed that I will not discriminate against anyone on that basis, and that I will not have any litmus test

for judicial nominees.

Question 6: The Justice Department under Attorney General Reno actively investigated allegations of police misconduct by law enforcement agencies and did not shy

away from taking legal action to protect the civil rights of Americans. Do you agree

with the Justice Department’s decision to investigate and then enter into a consent

decree with the City of Los Angeles and Los Angeles Police Department?

Answer: As I have previously testified, I strongly support the Justice Department’s special charge to protect the rights of those least able to protect themselves.

I have expressed my opposition to unwarranted strip searches, racial profiling, and

other abuses of civil rights by law enforcement authorities. While I have not been

briefed on the specific situation in Los Angeles, I oppose police misconduct wherever

it occurs.

Question 7: As you know, there is discretion in the Attorney General’s decision

of how to proceed in such cases. The Attorney General can take legal action, defer

litigation and instead ‘‘send a letter of concern,’’ or decline intervening at all. If confirmed as Attorney General, how would you handle allegations of misconduct by a

police department?

Answer: It is the duty of the Civil Rights Division in the first instance to investigate such allegations and to assess whether federal intervention is appropriate. As

Attorney General, I will trust state and local law enforcement, but will fully enforce

federal civil rights laws. In light of their role in law enforcement, allegations that

police departments are engaged in law breaking raises particular concerns to which

the Department will be especially sensitive.

Question 8: What would your standard be for determining whether to take legal

action against a police department?

Answer: The question is difficult to answer in the abstract. My answer would be

guided by the facts and the law, in consultation with professionals at the Department.

RACIAL PROFILING

Question 1: The hearing held in the Constitution Subcommittee on March 30,

2000, focused on racial profiling of motorists. Does your opposition to racial profiling

include racial profiling of airline passengers or people walking down the street?

Answer: I have stated my strong opposition to racial profiling across the spectrum.

There should be no loopholes or safe harbors for racial profiling. Official discrimination of this sort is wrong and unconstitutional no matter what the context.

Question 2: On January 15, 2001, President Clinton called on Congress to pass

a law that bans racial profiling. Would you support such a bill?

Answer: Former President Clinton proposed a host of things shortly before he left

office. I am unaware of the specifics of this particular bill. I am certainly prepared

to work with you on appropriate legislation to deal with racial profiling in a clear

and decisive manner.

FEDERAL DEATH PENALTY: INNOCENCE & THE CLEMENCY PROCESS

Question 1: At the hearing, you acknowledged that our justice system has made

mistakes and that innocent people have been convicted and even sentenced to death.

Do you share the concern that a system that sends innocent people to death is seriously flawed?

Answer: While I support the death penalty, I believe that there is no greater injustice than to execute one who is innocent. No system of justice is perfect, but I

will certainly work with the President and Congress to help insure that we have

a system that protects the rights of capital defendants.

Question 2: What, in your experience, causes these mistakes?

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Answer: I do not think it is possible to isolate any single factor or set of factors.

For example the jury system of fact finding enshrined in the Bill of Rights has never

been said to be perfect. It simply affords more protections against government

abuses of individual rights than other systems utilized in other countries. That, of

course, does not relieve government from the obligation to continue to work to make

the system fairer and more just.

Question 3: During the campaign last year, President-Elect Bush stated that he

applies the following test to clemency requests from death row inmates: whether the

person is guilty of the crime and whether he or she had full access to the courts.

Do you believe that other considerations might be taken into account beyond whether the inmate is guilty and has had full access to the courts?

Answer: President Bush was explaining in the context of a national political campaign his general practice as Governor in Texas, a death penalty state, regarding

clemency applications in capital cases once judicial avenues had been exhausted.

While it is possible to conceive of other considerations in a specific case, the ones

to which then-Governor Bush referred seem the most important and relevant ones.

Question 4: How do you define ‘‘full access to the courts’’?

Answer: I do not believe this term is a term of art. It has a commonly accepted

interpretation—that a defendant has received representation by competent counsel,

has received a fair trial, and has exhausted or has chosen not to exercise all of his

avenues of judicial appeal.

Question 5: Given President-Elect Bush’s and your strong support for capital punishment, could you ever recommend a grant of clemency in a death penalty case?

What are the circumstances under which you would recommend that the President

grant clemency?

Answer: Yes. In determining any recommendation on this issue, I would follow the

guidelines that the President has outlined: I would consider whether the person is

guilty of the crime and whether he or she had full access to the courts.

Question 6: If there is no question that the person is guilty, but there are errors

in the penalty phase of the trial—or, in other words, errors that mean the difference

between the defendant receiving a death sentence or life without parole, might you

support a grant of clemency in such a case?

Answer: Any advice that I would give to the President is confidential. However,

the President has indicated that his decision would be made based on whether the

individual is guilty of the crime and whether he or she has had full access to the

courts. When questions are raised as to whether an individual is guilty of capital

murder, as opposd to a crime for which the death penalty is not provided, I would

include such factors in my analysis and would advise him accordingly.

Question 7: What do you see as the role of the clemency process when a person

has a claim of innocence that has been rejected by the courts? In such a case, would

you be willing to review evidence or circumstances that the appellate courts have

never allowed a jury to hear (e.g., because the courts never granted a retrial)? Do

you believe that clemency should only be granted in cases where the defendant presents a claim of innocence?

Answer: As discussed above, the President has clearly indicated the factors that

he would consider in deciding whether to grant clemency. The role of the clemency

process is to determine whether there is a basis for clemency based upon those factors. And this process should include all evidence that bears on the factors outlined

above.

FEDERAL DEATH PENALTY: REPORT AND CONTINUING REVIEW

Question 1: On September 12, 2000, the U.S. Department of Justice released a report on the federal death penalty entitled Survey of the Federal Death Penalty System (1988–2000). This report confirmed that there are significant and unexplained

racial and geographic disparities in the federal government’s decisions to seek the

death penalty.

Are you troubled by the fact that about 75% of those against whom the Department of Justice seeks the death penalty are people of color or ethnic minorities, even

though far less than 75% of the people who commit federal capital crimes are people

of color and ethnic minorities?

Answer: Yes, it troubles me deeply.

Question 2: Wouldn’t you agree that the fair, just and sure administration of the

federal death penalty requires that it be applied completely free of racial bias?

Answer: Yes.

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Question 3: Are you troubled by the fact that the same federal crime is not prosecuted as a federal capital crime in different parts of the country?

Answer: I fully agree that, as a general principle, federal law should be applied

uniformly across the country, and, if confirmed, will work to help ensure that this

is the case.

Question 4: Wouldn’t you agree that the fair, just and sure administration of the

federal death penalty requires that it be applied uniformly across the country, so

that whether one lives or dies in the federal system is not dependent on the district

in which the prosecution takes place?

Answer: As noted above, I fully agree that nationwide uniformity in the application of federal law is important.

Question 5: Are you troubled by the fact that more than half the federal capital

prosecutions come from less than one-third of the states, even though the incidence

of federal capital crimes is fairly evenly distributed across the entire country?

Answer: Yes, though I am unsure why this is the case. There are many differences

in different jurisdictions, but, as noted, I agree that the uniform application of federal law is important.

Question 6: Attorney General Reno and Deputy Attorney General Eric Holder

have expressed concern about these disparities. Do you agree with the following

statement by Attorney General Reno:

Noting that the Department could not explain the disparities, she said, ‘‘[a]n even

broader analysis must therefore be undertaken to determine if bias does in fact

play any role in the federal death penalty system.’’ Answer: I fully agree that the Department of Justice should do everything necessary to eliminate any racial bias from the federal death penalty system, including

undertaking all reasonable and appropriate research necessary to understand the

nature of the problem.

Question 7: Do you agree with Attorney General Reno’s statement that the death

penalty should be imposed only after ‘‘sound study and thorough analysis’’ ?

Answer: I fully agree that we should have a thorough study of the system and

that the death penalty should be imposed only upon satisfaction of the full rigors

of Due Process. Nor should race play any role in determining whether someone is

subject to the capital punishment.

Question 8: On December 7, 2000, President Clinton granted a reprieve for the

first person scheduled to be executed by the federal government—an Hispanic American man from Texas named Juan Raul Garza—because of his concerns with racial

and regional disparities. Do you agree with President Clinton that there is a need

for ‘‘continuing study’’ of ‘‘possible racial and regional bias’’ because ‘‘[i]n this area

there is no room for error’’ ?

Answer: Yes.

Question 9: Do you agree with President Clinton that we must thoroughly examine and address racial and geographic disparities in the federal death penalty system before the United States ‘‘goes forward with an execution in a case that may

implicate the very questions raised by the Justice Department’s continuing study’’ ?

Answer: I fully agree that no individual should be subjected to capital punishment

where it is apparent that he or she was either denied the full rigors of Due Process,

or his or her conviction and/or sentence was imposed on account of the individual’s

race. I further agree that we should work together to ensure a uniform application

of all federal law, including the federal death penalty, across the Nation.

Question 10: If you are confirmed as Attorney General, what will you do about

the racial and geographic disparities in the application of the federal death penalty?

Answer: Like you, I strongly oppose allowing race to play any role in the imposition of the death penalty—it is an unconstitutional act that should never take place.

If confirmed, I assure you that I will thoroughly study this issue before determining

any reasonable and appropriate action that need be taken, and will then take all

reasonable and appropriate action to address the issue.

Question 11: Will you recommend to President Bush to do as President Clinton

did—not to allow federal executions until these disparities are fully studied, discussed, and the federal death penalty process subjected to necessary remedial action?

Answer: The President has asked that I keep my specific recommendations to him

private, and I plan to honor that request. I can say that I personally do not believe

that a moratorium on the imposition of the death penalty at the federal level is currently warranted. We have relatively few criminal defendants on death row in the

federal system and, in my view, it would be unfair, for example, to interfere with

the sentence that the judge and jury imposed upon Timothy McVeigh while a study

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is ongoing. Of course, all federal defendants are entitled to the full protections of

Due Process and applications for clemency.

FEDERAL DEATH PENALTY: RELIABILITY AND FAIRNESS OF FEDERAL CAPITAL

PROSECUTIONS

Question 1: In their book, Actual Innocence, defense lawyers Barry Scheck and

Peter Neufeld outline a number of problems in our criminal justice system that lead

to unreliable results. Have you read the book Actual Innocence?

Answer: I have not had the opportunity to do so, but would welcome the chance

if you recommend it.

Question 2 The following questions will address some of the problems outlined in

the book with a particular focus on the federal criminal justice system. The first

area is bargained-for testimony. Federal prosecutors rely heavily on testimony from

accomplices of defendants charged with a crime that, if convicted, could result in

a death sentence. This testimony is often obtained in exchange for not seeking the

death penalty against the accomplices.

Do you agree that this practice of obtaining bargained-for testimony can create

a serious risk of false testimony?

Answer: Depending on the circumstances, there is certainly a risk that testimony

obtained in exchange for leniency can be unreliable.

Question 3: If there are no other safeguards to assure the reliability of such testimony, do you think that federal prosecutors should be discouraged, or even precluded, from using such testimony?

Answer: Although I recognize the serious nature of the problem that you are raising, I imagine that one important safeguard is the ability of defense counsel to

cross-examine the witness. In any event, I would be hesitant to make any broad

generalizations outside to context of a concrete case.

Question 4: Federal prosecutors are not required to provide meaningful discovery

far enough ahead of trial to permit the defense to be prepared to use this information effectively. Would you support legislative action to provide greater discovery of

the government’s case further in advance of trial than is now required?

Answer: Not having had an opportunity to review the issue thoroughly, I cannot

comment on the specific legislative proposal that you proffer. However, I fully believe that all individuals that appear before our Nation’s courts should be accorded

the full protection of Due Process, and that prosecutors should comport themselves

in a way that respects the constitutional rights of criminal defendants.

Question 5: Would you support changes in the United States Attorneys’ Manual

to require an ‘‘open file’’ policy in relation to discovery?

Answer: Although I am not familiar with the details of this specific policy, I would

be happy to work with you to help ensure that all criminal defendants receive the

full protection of Due Process.

Question 6: The FBI, in increasing isolation from the rest of the nation’s law enforcement agencies, refuses to make electronic recordings of interrogations that

produce confessions. Do you agree that this practice makes subsequent scrutiny of

the legality and reliability of such interrogations more difficult?

Answer: I have not reviewed the details of this specific FBI policy, and would need

to consult with the professionals at the FBI before making an assessment. I assure

you that I will take all reasonable steps to help ensure that all criminal defendants

receive the full protection of Due Process.

Question 7: Do you have any objection to changing this practice?

Answer: I have an open mind on this issue. Not yet having had the opportunity

to conduct a full and fair review of the policy, I cannot currently make a reasonable

assessment.

Question 8: Federal prosecutors rely heavily on predictions of ‘‘future dangerousness’’ to secure death sentences. Do you know that such predictions are deemed unreliable and misleading by the American Psychiatric Association and the American

Psychological Association?

Answer: I am not familiar with these determinations by the American Psychiatric

Association and the American Psychological Association or the standards or bases

they used in their analysis.

Question 9: Do you have any concern about federal prosecutors’ reliance on such

predictions?

Answer: I am concerned about all issues that affect the right of criminal defendants to a full and fair trial. I would be happy to work with you to help ensure that

all criminal defendants receive the full protection of Due Process.

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Question 10: Is reliance on evidence that the leading mental health professional

associations in the country consider ‘‘junk science’’ a practice that you believe to be

defensible in federal prosecutions?

Answer: I fully agree that it is improper to rely on ‘‘junk science’’ in criminal prosecutions.

Question 11: Scheck and Neufeld also highlight the appalling problem of incompetent attorneys who represent people facing death-eligible crimes. This is a particular problem at the state level but the federal system is not totally immune. There

are, unfortunately, many cases across the country of people who were represented

at trial by drunk lawyers, lawyers who slept through the trial, lawyers who were

later suspended or disbarred, or lawyers who were paid far less than a living wage.

Do you agree that this is a problem?

Answer: I am troubled by the sorts of cases that you have enumerated, and we

need to work constructively to raise the bar on the quality of legal service offered

to criminal defendants. In particular, I look forward to working constructively with

you to formulate ideas to raise the quality of legal defense.

Question 12: I have joined Senator Leahy as a co-sponsor of legislation that would

begin to address this serious problem, the Innocence Protection Act. As Attorney

General, would you support incentive grants or conditioning federal funds to the

States on the States’ ensuring certain minimum standards for competency of legal

counsel in death penalty cases?

Answer: Although I an unable to comment on specific legislation, I agree that

every defendant is entitled to his or her 6th Amendment right to counsel and that

if DNA is available and can prove a person’s guilt or innocence, it should be used.

Question 13: What do you think the federal role should be with respect to the performance of the States in providing adequate legal representation for capital defendants?

Answer: The federal courts play a critical role in helping ensure that state criminal prosecutions, and especially death penalty prosecutions, comport with the strictures of the federal Constitution.

RELIGIOUS LIBERTY AND SCHOOL PRAYER

In June 2000, the United States Supreme Court ruled 6–3 in Doe vs. Santa Fe

Independent School District that a public prayer led by an elected student chaplain

at a football game between two public schools violated the Establishment Clause of

the United States Constitution. The Court cited Lee v. Weisman, a 1992 opinion in

which the Court concluded, ‘‘the Constitution guarantees that government may not

coerce anyone to support or participate in religion or its exercise, or otherwise act

in a way that establishes a state religion or religious faith, or tends to do so.’’ It’s no secret that you believe these decisions were mistaken. You have spoken out

against the Supreme Court’s decisions on the separation of church and state on

many occasions. At a 1998 meeting of the Christian Coalition, you said: ‘‘A robed

elite have taken the wall of separation built to protect the church and made it a

wall of religious oppression. They may try to take prayer from our schools, but they

can never steal God from our hearts. I believe that we must continue across this

land to fight for our God-given right to acknowledge and affirm our Creator.’’

Question 1: If you are confirmed, will the Department of Justice challenge the activities of school districts that violate the Doe v. Santa Fe and Lee v. Weisman decisions?

Answer: Both of these cases involved actions by private litigants, rather than Justice Department actions. Nevertheless, if confirmed, I will ensure that the Justice

Department fully and fairly enforces the constitutional rights of all citizens as those

rights have been interpreted by the Supreme Court.

Question 2: Will you instruct the Solicitor General to file amicus briefs that follow

an interpretation of the Constitution that ensures religious liberty and the separation of church and state?

Answer: Yes.

CAMPAIGN FINANCE

APPOINTMENT OF SPECIAL COUNSEL IN CAMPAIGN FINANCE CASES

Question 1: You and others in Congress were highly critical of former Attorney

General Janet Reno for failing to seek an Independent Counsel (or after the Independent Counsel statute expired, appoint a special counsel) to investigate fundraising abuses by the President Clinton’s campaign in 1996. As you know, I felt that

a special counsel should have been appointed to investigate campaign finance

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abuses by both sides in the 1996 campaign. Under what circumstances will you appoint a special counsel to investigate allegations of wrongdoing by the President or

those involved in his campaign? Do you believe that the public can have confidence

in an investigation of the campaign fundraising by the President or his associates

run by the Justice Department?

Answer: In light of the varied circumstances in which the need for a special counsel could arise, it is difficult to state generally when a special counsel should or

should not be appointed. Moreover, because each case must be reviewed on its particular facts, it would be impossible to state before-the-fact whether a particular

case would warrant the appointment of a special counsel. Clearly, if a case arose

in which it would be difficult for any official within the Justice Department to investigate the allegations of wrongdoing impartially and fully, the possibility of appointing a special counsel clearly should be considered. Furthermore, I believe that if the

integrity of the Justice Department is secure, then the public can have full confidence in investigations conducted by the Justice Department.

SOFT MONEY CONTRIBUTIONS

Question 2: As you know, one of the reasons I have worked so hard for the

McCain-Feingold campaign finance reform bill is that I am very concerned about the

appearance created when large soft money contributions are given to the political

parties. These very large donations can appear like bribes or even extortion, and I

believe we must ban soft money in this Congress. Although you and I have disagreed on what change in laws is necessary, would you agree that there is an appearance problem that we should be concerned about here?

Answer: Yes.

Question 3: On July 27, 1999, you cosponsored S. 1172, a bill that would have

made it possible for Schering-Plough, a major pharmaceutical company, to obtain a

patent extension for its big selling allergy drug Claritin. Some estimate that the

value of the patent extension to Schering-Plough would be over $9 billion. Just two

months later, on September 30, 1999, Schering-Plough contributed $50,000 to the

non-federal account of the Ashcroft Victory Fund. What was the Ashcroft Victory

Fund? What is your understanding of the arrangement that allowed a fundraising

committee associated with you to receive contributions of this size? What was your

role in obtaining this contribution?

Answer: The Ashcroft Victory Fund was a joint fundraising committee between

the Ashcroft 2000 Committee and the National Republican Senatorial Committee.

The Committee operated under Federal Election Commission guidelines allowing

contributions of this size. Corporate funds such as this were disbursed to the National Republican Senatorial Committee.

CAMPAIGN CONTRIBUTIONS AND THE MICROSOFT CASE

Question 4: Another case that the current Department of Justice brought was the

antitrust suit against Microsoft. This case has proceeded to a verdict at the District

Court level and is now on appeal. According to Common Cause, Microsoft and its

executives gave over $1.8 million in soft money to the parties last year, nearly a

million to the Republican party committees. As the suit intensified, Microsoft’s soft

money contributions nearly doubled from the 1998 election cycle. Do you see an appearance problem here? How will you assure the American people that your decision

on the Department’s pursuit of this lawsuit is not influenced by Microsoft’s campaign contributions to your party?

Answer: President Bush is committed to an Administration that adheres to the

highest ethical standards. Towards that end, I will work vigorously to ensure that

every decision made by the Justice Department is based on the law and on the facts.

This fully applies to the Microsoft case. On this score there can be no doubt: The

Department of Justice will operate free from any improper or untoward influence.

JUDICIAL NOMINATIONS

Question 1: Do you believe that the Judiciary Committee should vote on all nominees submitted by President Bush and that those nominees who receive a favorable

vote, or a tie vote under the agreement between Senators Daschle and Lott, should

be put on the Senate Executive Calendar for consideration by the full Senate?

Answer: I believe that the Senate should give timely and fair consideration to the

President’s judicial nominations.

Question 2 Assuming that there are no problems with completing FBI background

checks or other logistical impediments to a vote being held, do you agree with the

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proposal made by President-Elect Bush during the campaign that all nominees

should receive a vote in the Senate within 60 days of their nominations?

Answer: During the campaign, in order to minimize delay and division over presidential appointments, and attract good people to public service, then-Governor Bush

promised that if elected, he would make prompt submissions of presidential nominees a top priority, and challenge Congress to act within 60 days of the submission

of nominees for the new Administration—regardless of who was elected president

in 2000. I stand by the President’s commitment in this area.

Question 3: In 1985, the Ninth Circuit, sitting en banc, found that the President

has the constitutional power to make recess appointments to the federal bench. Do

you have any doubts about the constitutionality of recess appointments to the federal bench?

Answer: Although the Constitution explicitly authorizes the President to make recess appointments, I have not explored the constitutional issues concerning such appointments in all circumstances.

Question 4: During his two terms in office, President Clinton nominated four different African Americans to seats on the Fourth Circuit—James A. Beaty, Jr. or

North Carolina, James A. Wynn, Jr. of North Carolina, Andre M. Davis of Maryland, and Roger Gregory of Virginia. Mr. Beaty was first nominated in December

1995, and his nomination was resubmitted in 1997. Neither he nor any of the other

Fourth Circuit nominees who are African-American received a hearing in the Senate

Judiciary Committee. Do you have any comments on these facts?

Answer: As mentioned above, during the campaign, President Bush made clear his

view that Congress should act within 60 days of the submission of nominees for the

new Administration—regardless of who was elected president in 2000. I will fully

support the President’s view on this issue.

Question 5: Do you see a problem with the circumstance that in the year 2001,

there is not a single African-American who has ever been confirmed for a lifetime

appointment to the Court of Appeals for the Fourth Circuit?

Answer: Yes. I think it sends the wrong message, and believe we should endeavor

to appoint qualified minorities throughout the federal bench. As Governor of Missouri, I was proud to appoint 8 of the 9 minority candidates submitted to me on

the panels of candidates proposed by the nonpartisan judicial selection commissions.

As a Senator, I was likewise proud to support 26 of 28 minority judicial nominations

to the federal bench. If confirmed as Attorney General, I will continue to work to

enhance diversity on the federal bench, including on the Fourth Circuit Court of Appeals.

Question 6: President Clinton has re-nominated nine Circuit Judges, including

Judge Gregory, who were left hanging by the inaction of the Senate in the last Congress. Now these nine men and women do not constitute every nominee, nor even

Circuit Court nominee on whom the Senate failed to exercise its constitutional advice and consent responsibility in the 106th Congress. I believe that President-elect

Bush has an opportunity to set a different tone here—to unite the country and reach

across party lines. He can put into practice the political golden rule by not withdrawing these nominations and urging this Committee and the Senate to act on

them. If he wishes the Senate to change course on the subject of judicial nominations from the practice of the last three Congresses, he can set the proper example.

Will you advise President Bush against withdrawing these nominations and to support them receiving a vote in the Senate in an effort to get the judicial nominations

practice in this Congress off on the right foot?

Answer: As discussed above, the President, during the campaign, made clear his

commitment to an expeditious process of confirming presidential nominees to the judiciary. With respect to the particular nominees addressed in your question, I will

need to review fully the records of these nominees before advising the President on

this matter. I assure you that I will fully and fairly review the records of these individuals before advising the President. Ultimately, however, the appointment of a judicial nominee is the President

Responses of the Nominee to questions submitted by Senator Feinstein

’s to make, with the advice and consent of the Senate.

f Lead-in:During the past few years, the United States Senate has, in my opinion,

become a far more partisan, far more antagonistic place. Despite all the talk of Senatorial courtesy during the nomination process this year, the concept of Senatorial

courtesy has, in many respects, been lost during this Administration.

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One result of this has been the numerous secret ‘‘holds’’ placed on judicial nominations, some lasting for several years. This process is very difficult on the lives of

the nominee and his or her family. I have argued many times that if there is a problem with a nominee, someone should just come out and say it. That way, choices

can be made out in the open, with the benefit of knowing what one is up against.

Question: Have you ever placed a ‘‘hold’’ on a judicial nomination?

If so, please name those you put a ‘‘hold’’ on, and why.

Answer: In an effort to fulfill my responsibilities as a United States Senator, I

welcomed inquiries by the Majority Leader and Majority Whip regarding the scheduling and floor consideration of items on the legislative and executive calendars.

Though I may have expressly requested prior notification during my six years so

as to participate in debate or be present for a vote, I do not recall (except as noted

in these answers) which, if any, nominations were involved, or the circumstances

surrounding any such requests. In at least a couple of cases, however, I expressed

a desire to be notified if a nominee were to come up for a vote so I could express

my views on the floor.

Lead-in: At the hearings on Ronnie White’s nomination in May 1998, Judge White

was introduced to the Senate Judiciary Committee by my Republican colleague Senator Christopher Bond of Missouri, and then by Missouri Congressman Bill Clay.

After a very positive recommendation by Senator Bond, Congressman Clay told us

that:

‘‘He [Senator Ashcroft] told me that he had appointed six of the seven members to

the Missouri Supreme Court. Ronnie White was the only one he had not appointed. He said he had canvassed the other six, the ones that he appointed,

and they all spoke very highly of Ronnie White and suggested that he would

make an outstanding Federal judge. So I think that is the kind of person we

need on the Federal bench.’’

Question: You were present during this Committee hearing and you heard Congressman Clay’s report of your conversation, isn’t that correct?

Answer: I believe I was present, though I do not recall Congressman Clay’s comments.

When Congressman Clay reported this conversation with you to the Senate Judiciary Committee, did you object to his description of your conversation? Did you

comment at all on the White nomination at that time?

Answer: Courtesy is an important part of process in the Senate. I do not recall

doing or saying anything to endorse Congressman Clay’s statement. My position

with respect to Judge White’s nomination was longstanding and clear. I raised questions, and submitted follow-up questions, at his May 1998 hearing. I subsequently

voted against his nomination in Committee, identifying his dissents in death penalty cases as the basis of my opposition. I again made my views clear in January

1999 when he was re-nominated. Indeed, in February 1999, the St. Louis Post-Dispatch reported my objections based on his death penalty dissents. I opposed his

nomination in Committee in July 1999. And I spoke to this issue at the first opportunity after a vote was scheduled in October 1999.

Lead-in: Nominations hearings are crucial components of any Senator’s performance of his or duty to advise and consent. Hearings enable Senators to directly

query nominees about their concerns—and equally important—give nominees an opportunity to explain their record.

In your October 4 and 5 floor statements, you strongly criticized Justice White’s

record on the death penalty. However, you did not raise the issue of the death penalty once during oral and written questions of Justice White in his May, 14, 1998

hearing.

Question: Subsequent to the May 14, 1998 hearing and prior to your October 5th

speech, did you ever submit a written or oral request to Mr. White for information

about his decisions on the death penalty ?

Answer: Yes. My written questions inquired about a dissent he had written in a

death penalty case. In making my decision with respect to Judge White, I thoroughly reviewed his record, which is available to all members of the public. I believe

that this review provided a fully adequate basis upon which I could render a decision.

Question: If not, why did you not ask Justice White for more information?

Answer: As discussed, Judge White’s reported decisions provided what I believed

to be a fully adequate record upon which I could render a decision in the matter.

Question: Did you feel satisfied that you had a fair assessment of his record ?

Answer: Yes.

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Lead-in: In your floor statements before the Senate on October 4 and October 5,

1999, you accused Justice White of being especially liberal on the death penalty.

You cited, two cases to support your argument, Missouri v. Johnson and Missouri

v. Kinder. In describing the Kinder case, you said [Justice White], ‘‘wrote a dissent

saying that the case was contaminated by a racial bias of the trial judge because

the trial judge had indicated that he opposed affirmative action and had switched

parties based on that.’’ In fact, you claimed three separate times that I know of—

twice in floor statements and once in a ‘‘Dear Colleague’’ letter, that the only reason

White dissented in the Kinder case was the judge’s stance on affirmative action.

Question: My first question is, did you read Ronnie White’s dissent in the Kinder

case before you made your statement? Since?

Answer: I have reviewed the decisions rendered in the Kinder case.

Follow-up: The fact is that contrary to your statements, in his Kinder dissent,

Justice White specifically argued that the trial judge’s comments on affirmative action programs are ‘‘irrelevant to the issue of bias.’’ In fact what Justice White objected to—and here I quote directly from the dissent:

—‘‘ the pernicious racial stereotype which is also expressed in the press release. The

slur is not ambiguous or complex (nor, unfortunately, original): ‘‘While minorities need to be represented . . . I believe the time has come for us to place

much more emphasis and concern on the hard-working taxpayers in this country. . .’’ No honest reading of this sentence can show that it says anything

other than what it says: that minorities are not hard working taxpayers.’’

Again, in describing the Kinder case, you said [Justice White], ‘‘wrote a dissent

saying that the case was contaminated by a racial bias of the trial judge because

the trial judge had indicated that he opposed affirmative action and had switched

parties based on that.’’

Question: Given Mr. White’s explicit statement that he considered the trial judge’s

views on affirmative action irrelevant to the issue of bias, would describe your repeated representation of Ronnie White’s views as fair?

Answer: I would begin by noting that the majority of the court in Kinder stated

that ‘[i]n context, the statements merely express the trial judge’s satisfaction with

affirmative action and government entitlement programs.’ (942 S.W.2d at 321) In

the Kinder case, the defendant did not allege any actual unfairness or error in any

of the trial judge’s actions based on alleged bias, and an independent reviewing

court immediately after the trial, as well as the Missouri Supreme Court, found no

such unfairness or error based on bias. In fact, Judge White did not identify any

ruling or error influenced by any alleged bias. In his sole dissent, Judge White stated that ‘‘actual fairness’’ of a trial is ‘‘not sufficient’’ to satisfy the Constitution.

Judges undoubtedly should be held to a higher standard to avoid the appearance

of bias, and a good case can be made that the trial judge in Kinder should have

been censured. But I fully believe that to craft a rule that voids a trial with no demonstrable error, and with clear evidence of guilt of a brutal crime, as Judge White

would have in this case, is fundamentally wrong. This was the basis for my position

on Judge White with respect to the Kinder case. I continue to believe that that criticism was fair.

Lead-in: You have consistently stated that the only possible exceptions you would

accept to an otherwise complete ban on abortion would be the very life of the mother

herself. Let me ask you now to expand upon those statements.

Question: Do you believe that abortion is appropriate in cases where the health

of the mother is so endangered that she is likely to face serious, permanent damage

to her health?

Answer: My personal views on abortion are well known. But as I have explained,

I understand the difference between the role of a policy advocate and the role of

a law enforcer. As Attorney General, I will fully and faithfully enforce all federal

laws on this issue.

Question: Are there any circumstances, beyond the likelihood of the actual death

of the mother, that health should be a consideration in allowing an abortion, in your

opinion?

Answer: Please see the answer above.

Lead-in: If confirmed as Attorney General, you would likely have a great deal of

influence over who President Bush would nominate to all levels of the federal judiciary, including the Supreme Court itself.

Question: If President Bush were to ask you for names of possible Supreme Court

nominees, would you consider suggesting a pro-choice nominee, assuming that the

nominee was otherwise qualified?

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Answer: Yes. As President Bush has made clear, he will have no litmus test for

judicial nominations. As Attorney General, I will fully support the President’s standard, and will not employ any litmus tests with respect to any role I might have in

those nominations. I would note that I supported 218 out of 230 Clinton judicial

nominees, and I assume some, if not most of them, were pro-choice.

Question: If the President nominated a pro-choice individual for a vacancy on the

Supreme Court, with or without consulting you, would you support that nominee if

otherwise qualified?

Answer: Yes. As President Bush has made clear, he will have no litmus test for

judicial nominations. As Attorney General, I will fully support the President’s standard, and will not employ any litmus tests with respect to any role I might have in

those nominations.

Lead-in: In 1998, you stated that ‘‘[t]hroughout my life, my personal conviction

and public record is that the unborn child has a fundamental individual right to life

which cannot be infringed and should be protected fully by the 14th Amendment.’’ In 1981 you testified similarly before the Senate Subcommittee on Separation of

Powers in support of ‘‘A Bill to Provide that Human Life Shall Be Deemed to Exist

from Conception,’’ as follows: ‘‘[W]e are urging the courts in any number of cases

that they are considering to decide that equal protection does in fact belong to unborn children.’’ You further stated that ‘‘we would add fetuses that they currently

characterize as nonpersons to the class of individuals that is protected by the Constitution.’’ And also on this point, you co-sponsored a resolution proposing a constitutional

amendment codifying your belief that an unborn child is entitled to 14th Amendment protection?

Question: Is it your contention that a fetus is or should be considered a ‘‘person’’ under the 14th Amendment?

Answer: Your summary of my record as an advocate appears to be fair and accurate. Certainly a significant number of complicated issues are associated with these

proposals. The resolution of such issues is reserved to the domain of policy-makers,

not law enforcers. As I said at the hearing, I understand the difference between the

role of a policy advocate and one who must enforce the law. I accept Roe and Casey

as the settled law of the land.

Question: What are the jurisprudential ramifications of this position?

Answer: Please refer to the answer above.

Question: Are you aware of any Supreme Court ruling supporting your interpretation of the Fourteenth Amendment with respect to fetuses?

Answer: Please refer to the answer above.

Question: Will you advocate adoption of your understanding of the 14th Amendment before the US Supreme Court?

Answer: Please refer to the answer above.

Question: Under your theory, must a legal hearing be held with respect to the due

process rights of the fetus before an abortion may be performed?

Answer: Please refer to the answer above.

Question: What other due process rights does a fetus have in your view?

Answer: Please refer to the answer above.

Question: Does the fetus have due process rights regarding familial property distribution? Inheritance?

Answer: Please refer to the answer above.

Question: Do due process rights attach at the point of fertilization of the egg?

Answer: Please refer to the answer above.

Question: Presumably then, any doctor who performs an abortion under your interpretation of the Fourteenth Amendment commits murder, is that correct?

Answer: Please refer to the answer above.

Question: Does that make the woman an accessory to murder?

Answer: Please refer to the answer above.

Lead-in: According to the Institute of Medicine, access to contraceptive services

is central to improving women’s overall health and reducing unintended pregnancy

and, therefore, the need for abortion. Family planning experts also have highlighted

the crucial role that contraceptives play in reducing the rate of abortion, particularly for teenagers. One recent report indicated that publicly funded contraceptive

services annually prevent 1.3 million unintended pregnancies, which would result

in 533,800 births and 632,300 abortions.

Yet in 1986, as Governor of Missouri, you signed a bill that stated, among other

things, that life begins at ‘‘conception,’’ defined to mean at fertilization. And in 1998,

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you sponsored a Constitutional amendment to ban abortions that would also put the

beginning of life at fertilization.

Question: Am I correct in concluding that such a broad definition of conception

would have the effect of outlawing the most common forms of contraception, including the birth control pill and the IUD?

Answer: Proposals I supported as a Governor or legislator have no bearing on my

role as Attorney General. As Attorney General, I would have no authority to vote

upon legislation or constitutional amendments. As Attorney General, I will enforce

the laws as passed by Congress and signed by the President.

Lead-in: In January of 1999, a federal jury ordered two anti-abortion groups and 12 individuals to pay over $107 million to Planned Parenthood of Columbia/Willamette, the Portland Feminist Women’s Health Center, and several physicians, after

finding that the ‘‘Nuremberg Files’’ web site, a ‘‘Deadly Dozen’’ poster, and a ‘‘wanted’’ poster constituted true threats not protected under the First Amendment.

The Nuremberg Files web site was designed to collect information to use against

abortion providers, clinic staff, law enforcement officers, judges, and politicians in

future trials for their ‘‘crimes against humanity.’’ The site sought and listed personal information such as: photos of the individuals, their families, their friends,

their houses, and their cars; driving records; license plate numbers; and names and

birth dates of the individuals and their family members.

The legend that accompanied this list of names contained simulated body parts

and dripping blood. This legend indicated the health status of each name—Black

font for ‘‘working′′; Greyed-out Name for ‘‘wounded′′; and Strikethrough for those on

the lists who were dead. Within hours of the assassination of Buffalo abortion provider, Dr. Barnett Slepian, a line appeared through his name.

It is my understanding that this case is now on appeal to the U.S. Court of Appeals for the Ninth Circuit and may be destined for review by the U.S. Supreme

Court.

Question: As Attorney General, would you concur that the activities by the defendants in this case violate FACE, or would you use your position to try to limit the

scope of FACE?

Answer: If confirmed, I will fully enforce FACE. I believe that it would be imprudent for me to comment on a pending case or make any decision with respect to

the case to which you refer, as well as any other case, until fully reviewing the facts

and law. I look forward to the opportunity to conduct such a review of this and other

cases. Follow-up: The Department of Justice reviews all petitions for certiorari to the Supreme Court and often recommends that the Supreme Court either grants or denies

certiorari in any particular case. When the Solicitor General says that a decision

warrants or does not warrant attention, those views are given great consideration.

So, indeed, DOJ could well become involved in this case at the certiorari stage or

by filing an amicus brief.

Question: Should this case be appealed to the Supreme Court and you are confirmed as Attorney General, what recommendation would you dir Solicitor General

to make regarding the outcome of the case?

Any decision that I make with respect to the case to which you refer, as well as

any other case, will be made only after fully reviewing the facts and law applicable

to that case. I look forward to the opportunity to conduct such a review of this and

other cases.

Question: In more general terms, would you continue to support the use of Attorney General powers to protect providers and patients in cases that come before the

court?

Answer: If confirmed as Attorney General, I will use the powers of the Attorney

General to enforce the federal law protections of all citizens fully and fairly, including those of providers and patients.

Lead-in: Let me now ask you a question about the FACE Act, and what that Act

covers.

Question: In Section 3(e) of the Act, the term ‘‘interfere with’’ means ‘‘to restrict

a person’s freedom of movement.’’ Would you support any alteration of that definition?

Answer: It is Congress’s prerogative to draft and enact legislation, including the

definition of terms appearing in legislation. Should the Congress choose to do so

with respect to the FACE Act, I will fully and fairly enforce such alteration.

Question: Also in Section 3(e), ‘‘intimidate’’ means ‘‘to place a person in reasonable

apprehension of bodily harm to him or herself or another.’’ Would you support any

alteration in that definition?

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Answer: It is Congress’s prerogative to draft and enact legislation, including the

definition of terms appearing in legislation. Should the Congress choose to do so

with respect to the FACE Act, I will fully and fairly enforce such alteration.

Question: In Section 3(c), FACE defines ‘‘physical obstruction’’ as ‘‘rendering impassible ingress to or egress from a facility that provides reproductive health services’ or rendering passage to or from such a facility’ unreasonably difficult or hazardous.’’ Would you support any alteration in that definition?

Answer: It is Congress’s prerogative to draft and enact legislation, including the

definition of terms appearing in legislation. Should the Congress choose to do so

with respect to the FACE Act, I will fully and fairly enforce such alteration.

Question: Courts have interpreted FACE as not providing a civil remedy to socalled ‘‘sidewalk counselors.’’ Do you disagree with that interpretation? Do you think

that the definition of reproductive health services should be expanded so as to include ‘‘sidewalk counselors?′′

Answer: Just as it is Congress’s prerogative to draft and enact legislation, it is

the role of the courts to interpret such legislation. If confirmed as Attorney General,

I will fully abide by federal court decisions interpreting the FACE Act. Likewise,

should Congress choose to amend the act, I will fully and fairly enforce such amendment.

Lead-in: As a Senator on this Committee, you voted against Senator Schumer’s

amendment to the bankruptcy bill that would prevent persons who commit acts of

violence or harassment at reproductive health care facilities from using bankruptcy

proceedings to avoid paying the damages, court fines, penalties, and legal fees levied

against them as a result of their illegal activities.

Question: I understand that the floor vote may have had something to do with

the Presidential election process, and may not have reflected the true views of all

who voted for it. So to make the record clear, will you commit to us today that you

will continue to support, and indeed vote for, legislation or amendments to prevent

perpetrators of clinic violence and obstruction from using bankruptcy proceedings to

discharge their related debts?

Answer: My reasons for opposing the amendment in committee dealt with the procedural and timing implications of the amendment to final passage of the bankruptcy bill. I supported Senator Schumer’s amendment on the floor based on substantive policy considerations and supported final passage of the bill that included

the provision.

Lead-in: In the past, when a clinic has been under siege and local law enforcement have been unwilling or unable to respond, the Task Force Against Reproductive Health Care Providers has responded by using federal law enforcement (i.e.

U.S. Marshals) to protect clinics, providers and patients.

Question: If local law enforcement does not respond in such a situation, would you

support using federal law enforcement to protect the clinic, providers and patients?

Answer: If confirmed, I will use the powers of the Attorney General’s office to protect the federal rights of all Americans, including the rights of clinics, providers, and

patients.

Lead-in: It is my understanding that as of last count, there were 53 investigations

open relating to FACE, including 6 arsons, 5 bombings, and 2 shootings, one of

which was fatal.

Question: Would the Department of Justice under your authority pursue these

cases, and if so, how?

Answer: If confirmed, I will fully enforce the FACE Act, including with respect to

any pending investigations. I will be particularly vigilant in pursuing crimes of violence, such as the ones that you reference. I am not, however, familiar with the details of the cases that you cite, and so cannot comment on them in particular.

Question: If, during your tenure as Attorney General, the amount and severity of

violence against health care providers and/or facilities increases over current levels,

what additional steps would you take to enforce the laws that protect them?

Answer: I will fully enforce the FACE Act. If current enforcement levels prove insufficient to the need, then I will not hesitate to devote significant additional resources to enforcing FACE.

Lead-in: In several high-profile cases in recent memory, the Justice Department

has pursued civil rights cases against perpetrators of hate crimes when the state

laws in question have been inadequate to address those crimes.

In fact, throughout our nation’s history, some of the most vulnerable victims have

relied on the Department of Justice to intervene and ensure that justice is done.

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Question: As Attorney General, would you take an equally active role in these

types of cases?

Answer: If confirmed, I will fully and fairly enforce current federal law to ensure

that conduct which violates the civil rights laws is fully prosecuted. I will also fully

enforce any additional hate crimes legislation that Congress chooses to enact.

Lead-in: In 1988, you declined to sign the Commission on Minority Participation

in Education and American Life, which concluded that the nation was slipping it

its efforts to achieve equal opportunity for minorities. I am concerned about the impression left behind by your refusal to sign the report. A reasonable person might

presume that it meant that you were satisfied with the progress that has been made

on these issues.

Question: Could you explain your reason for not signing the Commission report?

Specifically, what were your chief concerns about the report?

Answer: A press release at the time expressed my concerns as follows: ‘‘Governor Ashcroft agreed to serve on the Commission on Minority Participation

in Education and American Life because of his deep concern with achieving an environment of equal opportunity for all Americans including total access and a comprehensive open door to attaining educational excellence. He joins the other members of the Commission in these purposes and goals, as well as their view that education is key to the achievement of equal opportunity. ‘‘He could not, however, fully subscribe to the Commission’s final report because

of its inordinate emphasis on federal government programs as compared to the crucial initiatives of individuals, states, and localities. He further believes that the report’s generalizations about setbacks in progress are overly broad and counterproductive in failing to recognize and examine important areas of progress experienced during the last three to four years. Instead of documenting and describing

reasons behind the successes of many minority groups, the report focuses almost exclusively on shortcomings and failures. Further, the report fails to draw on research

that distinguishes between effective and ineffective programs in helping all Americans achieve success. He especially objected to the precipitous process for finalizing

the report, which provided little or no opportunity for the Commission’s consideration of these and other concerns about its final draft.’

Question: To what extent do you believe racial and gender disparities persist in

the workplace and in education?

Answer: I believe that discrimination is a real and persistent problem, that there

is still much work to be done, and that the Department of Justice has a special

charge and solemn responsibility to enforce our nation’s civil rights laws vigorously.

Question: What types of efforts or programs—whether at the federal, state or private sector levels—would you find constitutionally acceptable in ensuring equal opportunities for minorities and women in employment and education?

Answer: Many efforts and programs can be undertaken in this regard consistent

with the Constitution. For example, I believe that the affirmative access programs

that President Bush has described are fully consistent with the Constitution.

Lead-in: Senator Ashcroft, in a 1998 interview in Southern Partisan magazine,

you were asked to give your views about the International Criminal Court, which

has been established to punish war crimes like genocide. You responded, and I

quote:

‘‘It’s an outrage. It has the potential of subjecting American citizens (at least for

their actions abroad at home) to vague criminal charges that would spring from

so-called ‘‘crimes against humanity.’’ Some of the things they’re listing as crimes

against humanity are ‘‘enforced pregnancies.’’ There are lots of people who wonder if the culture would decide not to make abortion available would that mean

that they were ‘‘enforcing a pregnancy’’? For heaven’s sake, that would make

withholding of an abortion a crime against humanity when many Americans believe that providing an abortion is a crime against humanity.’’

Let me now read the International Criminal Court treaty’s definition for a forced

pregnancy:

‘‘Forced pregnancy means the unlawful confinement, of a woman, with the intent

of affecting the ethnic composition of any population or carrying out other grave

violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.’’

In other words, the ICC treaty provisions refers specifically to a systematic policy

of imprisoning women, raping them, and forcing them to carry the fetus to term as

part of a policy of ethnic cleansing and to change the ethnicity of a population.

Moreover, the provision explicitly states that it does not apply to domestic pregnancy laws.

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This does not seem all that vague to me, nor does it seem to suggest the conclusions or scenario that you raised.

Question: How did you come up with your interpretation of this provision?

Answer: I believe if my statement is reviewed carefully, it does not state a position

but asks a question about that provision. I do not recall reviewing the specific provision you reference, but it appears to answer the question I posed in my statement.

Question: Do you believe that enforced pregnancy, as defined in the ICC Treaty,

should not be a crime?

Answer: I believe that as defined in your question, such conduct would constitute

a heinous and horrible crime.

Lead-in: When the Senate reconvenes next week, I will be re-introducing the ‘‘Military Sniper Weapon Regulation Act.’’ This legislation would place 50 caliber

sniper rifles under the ‘‘National Firearms Act,’’ the same regulatory scheme already governing machine guns and other powerful weaponry.

These powerful guns weigh as much as 28 pounds, and enable a single shooter

to destroy enemy jeeps, tanks, personnel carriers, bunkers, fuel stations and even

communication centers. The weapons are deadly accurate up to 2,000 yards, and ‘‘effective’’ up to 7,500 yards—more than four miles. In fact, many ranges used for target practice do not even have enough safety features to accommodate these guns.

They are just too powerful.

Current law classifies 50 caliber guns as ‘‘long guns,’’ subject to the least government regulation for any firearm. My bill would reclassify 50 caliber guns under the

National Firearms Act, which imposes stricter standards on powerful and destructive weapons. For instance, once this bill passes, 50 caliber guns must be purchased

through a licensed dealer, with an accompanying background check. Prospective

purchasers will need to provide fingerprints and fill out a transfer application, and

will undergo a delay while the FBI makes sure that the applicant meets federal

qualifications for obtaining the firearm.

Question: Do you believe that regulating firearms under the National Firearms

Act is constitutional?

Answer: To my knowledge, there has never been a successful challenge to the constitutionality of the National Firearms Act. As with all federal legislation, I would

approach it with a presumption of constitutionality, and would defend it so long as

a good faith and conscientious basis existed for doing so.

Question: Would you support this bill?

Answer: I have not had an opportunity to review the bill, but look forward to

doing so in the near future and to working with you on this subject.

Lead-in: You stated during these confirmation hearings that your opposition to

Jim Hormel stemmed from your review of the ‘‘totality of the record.’’ Yet, it is my

understanding that when repeatedly contacted by Jim Hormel—both in writing and

by phone calls—to discuss his nomination, you did nothing to schedule a time to discuss any concerns or reservations you may have had. You did not attend his hearing

before the Senate Foreign Relations Committee. In fact, the only record that existed

prior to your vote against Mr. Hormel was the testimony presented during Mr.

Hormel’s confirmation hearing and earlier testimony that was before the Senate

prior to his unanimous confirmation by the Senate to his position at the United Nations.

Question: Please specifically describe the record on which you based your opposition.

Answer: Based on the totality of Mr. Hormel’s record of advocacy, I did not believe

that he would effectively represent the United States in Luxembourg, the most

Roman Catholic country in all of Europe.

Follow-up: You stated that you ‘‘had known Mr. Hormel for a long time.’’ Yet, according to Mr. Hormel, you and he have never had a personal or professional relationship and Ambassador Hormel believes with reasonable certainty that you and

he have not seen each other or spoken since 1967.

Question: Why wouldn’t you meet with Jim Hormel again to discuss his nomination as ambassador?

Answer: I opposed the confirmation of Ambassador Hormel in Committee. That

was the extent of the action I took concerning his nomination. Given the pressing

demands of fulfilling the responsibilities of a U.S. Senator, there were other interests in the Senate upon which I was primarily focused.

Question: During your time in the Senate, how many times did you refuse a request to meet with an executive nominee?

Answer: During my tenure in the Senate, many individuals were nominated to office by the President. I was able to meet with some, but not all, of these individuals.

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I am unable to recall precisely how many nominees I did or did not interview, but

Ambassador Hormel is not the only nominee for whom I could not accommodate a

personal visit.

Follow-Up: Again, you said that your opposition to Jim Hormel was based in your

review of the ‘‘totality’’ of his record. Yet, three months prior to your strong opposition to his appointment as Ambassador to Luxembourg, you did not object to the

unanimous consent of his Senate approval as Alternate Representative of the U.S.

delegation to the UN General Assembly.

Question: In the intervening months, what was it about Ambassador Hormel’s

record that changed your opinion that he was fit to serve the United States?

Answer: Like many other Senators, the standard that I applied for presidential

nominees varied depending upon the office for which the nominee was nominated.

I thus believed that while Mr. Hormel might serve adequately as an Alternate Delegate to the United Nations General Assembly, he would not, based on the totality

of his record, have been an appropriate person to serve as Ambassador to Luxembourg.

Lead-in: In 1999, the INS took into its custody 4,607 children who came to the

U.S. unaccompanied by a parent or adult guardian. More than 2,000 of these children are held in jails and youth detention centers across the country, even though

the overwhelming majority of these children (80 percent) have committed no crime.

The INS continues to pursue this policy remain in effect seven years after the INS

agreed to hold children in the ‘‘least restrictive setting appropriate for the minor’s

age and special needs.’’ I have been, appalled, quite frankly, by the way many unaccompanied alien children have been treated by the Immigration and Naturalization

Service. This treatment has included the shackling and handcuffing of children who

are no threat to themselves or others, long periods of confinements in inappropriate

penal facilities, pressuring children to voluntarily depart the country without their

having access to counsel, and inadequate avenues for humanitarian relief when that

relief might be appropriate.

Question: Would you agree that Congress and the Administration should take

comprehensive steps to correct these problems?

Answer: The President has proposed comprehensive reform of the INS. I fully support his position on this matter. With regard to the matters enumerated in your

question which would be under my authority as Attorney General, I certainly will

review them. I look forward to working with you to correct any improper treatment

which may take place.

Follow-Up: Late in the last Congress, I introduced S. 3117, the ‘‘Unaccompanied

Alien Child Protection Act of 2000,’’ which sought to change the manner in which

unaccompanied alien children are treated by immigration authorities by addressing

these issues, and more. I plan to re-introduce this bill in this Congress. My legislation would create a special Office of Children’s Services within the Department of

Justice, and the Office would be responsible for coordinating and implementing the

law to ensure that unaccompanied alien children are treated appropriately by our

government.

Question: What are your views on the wisdom and morality of confining children

who have not committed any crimes in prison or prison-like facilities?

Answer: I believe that children taken into custody by the federal government, including unaccompanied alien children, should be treated with the utmost care and

compassion.

Question: This issue is an important priority to me, and I really want to have your

commitment to work closely with me in addressing the treatment of children in our

immigration system. Can I get your support?

Answer: I pledge that if confirmed, I will work closely with you to ensure that all

children in our immigration system are treated with the utmost care and compassion.

Lead-in: Millions of law-abiding citizens, residents, immigrants, and businesses

pay fees to the INS each year to have their applications and petitions for immigration benefits adjudicated in a timely manner. Unfortunately, our constituents increasingly have been faced with extraordinary delays and incompetence. And this

had had a dramatic effects on their lives and the lives of the people or companies

that depend on them.

Last year, Congress enacted S. 2586, the ‘‘Immigration Services and Infrastructure Improvement Act of 2000,’’ legislation which I introduced in the Senate. This

new law created an account within the Immigration and Naturalization Service

(INS) specifically devoted to reducing the immigration backlogs, and improving the

overall INS process and systems used to adjudicate these important services. Under

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the new law, funds in the account are to be available across fiscal years, and they

are to be used for such purposes as providing additional personnel, fingerprinting

equipment, improved records management, and other necessary equipment and expenses. In addition to creating the account and authorizing such sums as necessary

to fund it, my legislation requires an annual report to Congress on the top ten areas

that have the worst immigration backlogs. It also requires the INS to explain why

backlogs persist in these areas and what the agency is doing to fix them. The INS

must also report on what additional resources are needed to meet Congress’s mandate that backlogs be eliminated and that processing times are reduced to an acceptable time frame.

During his campaign, President-Elect Bush called for the expenditure of $500 million over five years to reduce the immigration backlog. This proposal was similar

to my bill, which has now become law. The President-Elect will have to submit his

fiscal year 2002 budget to Congress in the coming weeks.

Question: If confirmed as Attorney General, will you work to include in the President’s budget additional funding for reducing the backlog in immigration benefits

adjudications?

Answer: If confirmed, I will work diligently to support the President’s agenda in

this area.

Question: Can we count on your support for the provision of directly appropriated

funds for reducing the backlog in immigration benefits adjudications, along the lines

of my proposal and the President-Elect’s proposal, to supplement the funds that are

derived from the fee accounts?

Answer: As mentioned above, if confirmed, I will work diligently to support the

President’s agenda in this area.

Question: Can we count on your support for insisting that appropriated funds for

backlog reduction be placed into the Immigration Services Improvement and Infrastructure Account, as established by the Act, rather than in integrate those funds

within the general INS accounts?

Answer: As mentioned above, if confirmed, I will work diligently to support the

President’s agenda in this area.

Question: Even when Congress appropriates funds to the INS, management problems within the agency have affected the efficient use of these funds. What steps

will you take to ensure that these funds are used as intended and will result in the

efficient and timely processing of immigrant petitions and naturalization applications?

Answer: It is important that funds intended for a specific use be devoted to that

use. If confirmed as Attorney General, I will work to ensure that appropriated funds

are used as intended, and deployed to promote efficient and timely processing of immigrant petitions and naturalization applications. I will coordinate closely with all

responsible officials in the INS.

Follow-Up: The backlog reduction law requires that the INS make a number of

reports to Congress on its efforts to reduce the backlog in immigration benefits adjudication. The first of these reports is due on January 17, 2001. As you know from

your service in the Senate, the INS has not been especially timely over the years

in submitting reports that Congress has requested. As the author of this particular

piece of legislation, and as a senator representing a large constituency that depends

on the INS to perform its Service functions in a timely and efficient manner, I am

going to take a special interest in making sure that the reports and goals required

by this bill are adhered to.

Question: Will you designate someone on your staff to work with my staff to ensure that these reports are done on a timely basis and that the reduction in these

intolerable backlogs are among the highest priorities, not only of the INS, but of

the Department of Justice, itself?

Answer: I pledge to you that if confirmed, I will work closely with you to help ensure that the INS fulfills its responsibilities under applicable law, and, in particular,

its obligation to file timely reports pursuant to the backlog reduction law. I will

make this a priority in both the INS and the Department of Justice.

Lead-in: Both the General Accounting Office and the U.S. Commission on Immigration Reform called for significant management reforms at the INS. In 1991, the

GAO issued an extensive report identifying severe management problems across the

agency. Among other things, the GAO found INS:

• Lacked clear priorities;

• Lacked management control over regional commissioners;

• Had poor internal communications and outdated policies;

508

• Did not take workload into account when allocating resources’ which contributed

to the high backlog of applications; and

• Had unreliable financial information and thus inadequate budget monitoring.

The U.S. Commission on Immigration Reform found that despite increases in

funding and authority, the current federal immigration structure leads to ‘‘mission

overload,’’ resulting in ineffective management of the four core functions of our immigration system: border and interior enforcement; enforcement of immigration-related employment standards; adjudication of immigration and naturalization applications; and consolidation of administrative appeals. According to the Commission,

‘‘mission overload’’ results from the fact that the agency charged with implementing

our immigration laws have so many responsibilities that they are unable to manage

all of them effectively. And, with an immigration landscape that is growing in complexity and size, no one agency could have the capacity to effectively manage every

aspect of immigration policy imaginable. I am a strong supporter of the reform bill

proposed in the Senate in the 106th Congress, which would separate the Service

into bureaus: one for Enforcement and one for Service. An Associate Attorney General for Immigration Affairs would oversee both bureaus. I would like to count on

your support for making this a priority for the Justice Department.

Question: If you are confirmed, what immediate reforms would you make to the

agency?

Answer: The President has proposed a comprehensive reform of the Immigration

and Naturalization Service to help change its character and to make America more

welcoming to new immigrants. Currently, for example, the INS takes 3-5 years or

more simply to process an immigration application. There is no justification for processing to take 3-5 years; an INS properly focused on service would move much faster. The President believes every INS application should be fully processed within

180 days of submission. To meet this 6-month standard, and to introduce a fundamental shift in the approach of the INS, the President will: (1) Support legislation

to divide the INS into two separate agencies: one to deal with the enforcement components of border protection and interior enforcement, and another to deal with the

service components of naturalization. Both agencies will be headed by an Associate

Attorney General for Immigration Affairs, who will supervise both functions, and

make sure that the agencies are taking consistent legal and policy approaches. (2)

Support a comprehensive set of civil-service reforms, ways to make government

more responsive to its customers. He will follow the same principles with the INS.

In particular, he will introduce performance incentives for employees to process

cases quickly, and make customer satisfaction a priority. (3) Propose an additional

$500 million over 5 years to fund new personnel and increased employee incentives

to provide quality service to all legal immigrants. (4) Support changes in the INS

policy so that spouses and minor children of legal permanent residents are allowed

to apply for visitor visas while their immigration applications are pending. He will

reverse the presumption that such family members will violate their terms of admission, and will encourage family reunification for legal immigrants. If confirmed, I

will fully support the President’s agenda in this area.

Question: If your approach would differ from the Senate bill, please explain the

reforms you would propose.

Answer: I believe that my answer to the preceding question outlines the President’s approach in this area, which I would fully support.

ADDITIONAL IMMIGRATION QUESTIONS:

Question 1: Worksite Enforcement. We can all agree that we have a large number

of unlawful migrants here , and they come because employers offer them work opportunities. If you are interested in controlling illegal immigration, what policies

would you put in place to enforce the immigration laws at the work place?

Answer: If confirmed, I would fully and fairly enforce all of the laws relating to

immigration—both legal and illegal. By enforcing such laws vigorously, we can, I believe, both control illegal immigration and promote the interests of those who are

in this country lawfully.

Question 2: Alien Smuggling and Trafficking. I am very concerned about the significant increase in organized trafficking. [GAO] As you may know, Congress

passed—What mechanisms will you put in place to both deter traffickers and assist

the victims of trafficking?

Answer: No human being should be forced to suffer the indignity of being a victim

of human trafficking. I will vigorously enforce all laws enacted by Congress in this

area to combat this abhorrent practice.

f509

Responses of the Nominee to questions submitted by Senator Grassley

Question 1: Senator Ashcroft, can I count on you to vigorously support and enforce

the False Claims Act and its qui tam provisions?

Answer: If confirmed as Attorney General, I will fully enforce the False Claims

Act and its qui tam provisions. As you know, some have questioned the constitutionality of the qui tam provisions. Questions concerning the validity of laws should

be answered only in the context of a specific case or controversy raising the issue.

While it would be imprudent to make a legal determination on the question now,

absent a full and thorough review of the relevant law, my obligation as Attorney

General will be to defend the constitutionality of duly-enacted federal law whenever

a good faith and conscientious basis exists for doing so.

Question 2: Current Deputy Attorney General Eric Holder has issued guidelines

for the enforcement of the False Claims Act by Justice Department attorneys. Will

you continue these guidelines?

Answer: Though I have not yet had an opportunity to familiarize myself with

these guidelines in detail, I assure you that any action that I take with respect to

the guidelines will be done only after a full and fair review in consultation with the

Justice Department experts in the area.

Question 3: There have been efforts by some trade groups whose members have

been sued under the False Claims Act to seek amendments that would weaken the

Act, such as removing minimum damages and increasing the burden of proof on the

government or on whistleblowers. Can I count on you, while you are Attorney General, to vigorously oppose all such efforts to weaken the Act?

Answer: Though I have not had an opportunity to review the False Claims Act,

or any proposed amendment thereto, in detail, I look forward to working with you

in the future to ensure that the False Claims Act fulfills the purpose for which it

exists.

Question 4: I believe that the Justice Department has an accomplished team in

the Civil Division that conducts and oversees False Claim Act cases. There are also

a good number of first-rate attorneys in the U.S. Attorney’s Offices that handle

False Claims Act cases. Will you maintain those resources?

Answer: Though I have not had an opportunity to review the U.S. Attorney’s Offices in this area, I have no intention to change the priority currently given to enforcement of the False Claims Act. Any decision made in this regard will be done

only after a full and fair review of the matter.

Question 5: It seems that the Justice Department declines to participate in 75%

to 80% of the cases brought to its attention by whistleblowers. This suggests that

the Department should increase the number of attorneys assigned to False Claims

Act matters. Would you consider arranging for such an increase in the immediate

future?

Answer: Though I have not had an opportunity to review this issue in detail, if

confirmed, I pledge that I will commit resources where they are needed most. If,

upon review, I determine that that area is False Claims Act enforcement, I will not

hesitate to allocate additional resources in that direction.

Question 6: It appears to take the Justice Department a very long time to investigate and decide to intervene in a False Claims Act case initiated by a whistleblower. I understand the Civil Division has no in-house investigators, but must rely

entirely on investigators working for other departments. Would you consider changing that situation by establishing a cadre of in-house DOJ False Claims Act fraud

investigators?

Answer: Again, I have not reviewed this area in detail. I would certainly be open

to establishing in-house DOJ False Claims Act fraud investigators if, upon a full

and fair review, it were determined that such a need existed.

Question 7: I see a need for closer cooperation between the Department of Justice

and the qui tam bar, the lawyers who represent the whistleblowers (technically

called ‘‘relators’’). There are some problems: 1) even when the Department of Justice

joins a case, the Department too often seems to hold whistleblowers and their lawyers at arms length, failing to use them as a resource to help develop the case, or

even failing to keep them informed; and 2) the Department of Justice sometimes

views whistleblowers and their lawyers as adversaries, and puts inordinate resources into efforts to eliminate or minimize their bounty. Senator Ashcroft, I would

like the Department of Justice under your leadership to embrace the qui tam whistleblowers and their attorneys. I would also like to see a more cooperative relationVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00523 Fmt 6601 Sfmt 6621 C:\HEARINGS\76342A.004 SJUD4 PsN: SJUD4
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ship than now exists. Do you believe that the network of whistleblowers could be

a valuable resource in combating fraud against the federal treasury? Would you

agree to foster a closer relationship between the Justice Department and the qui

tam plaintiffs and their attorneys?

Answer: I fully agree that qui tam whistleblowers are a valuable resource in combating fraud against the federal treasury, and that a good relationship between relators and the Justice Department is important. I further agree that if confirmed, I

will work to foster that relationship as appropriate.

Question 8: In the past, there have been some in the Department of Justice who

have sought to undermine the constitutional legitimacy of the False Claims Act. Do

you believe that the qui tam provisions of the False Claims Act are constitutional

in light of the Supreme Court decision in Vermont Agency of Natural Resources v. U.S. ex rel. Stevens? Will you use your leadership to assure that the Justice Department’s resources are not wasted on efforts to undermine the constitutional legitimacy of the False Claims Act, especially after the recent Vermont Agency of Natural Resources case?

Answer: Questions concerning the validity of laws should be answered only in the

context of a specific case or controversy raising the issue. While it would be imprudent to make a legal determination on the question now, absent a full and thorough

review of the relevant law, my obligation as Attorney General will be to defend the

constitutionality of duly-enacted federal law whenever a good faith and conscientious basis exists for doing so.

Question 9: Senator Ashcroft, will your staff conduct a review of the policies and

procedures currently in place at the Antitrust Division to ensure that they are up

to date and consistent with other agency policies in regard to antitrust matters? In

addition, will you ensure that the Antitrust Division’s policies and procedures are

being followed? The General Accounting Office soon will be issuing a report that will

find that the Antitrust Division has not strictly complied with its procedures for

handling public complaints and inquiries. It is important that the Antitrust Division

follow the policies and procedures it sets, not only for the proper functioning of the

Division, but also to provide assurance to the public that the Division is accountable

for its actions and decisions.

Answer: 

Responses of the Nominee to questions submitted by Senator Kennedy

Yes. I look forward to working with you on these matters.

fSCHOOL DESEGREGATION

Question (1): Several times during your testimony, you made very clear and direct

statements that the State of Missouri was not found guilty of any wrongdoing in

the St. Louis school desegregation cases and therefore should not be held liable. You

also stated that the state was not a party to the litigation. For example, in response

to Senator Leahy’s questions, you said:

‘‘I opposed a mandate by the federal government that the state, which had done

nothing wrong, found guilty of no wrong, that they should be asked to pay this

very substantial sum of money over a long course of years. And that’s what I

opposed.’’

How can you justify making this statement, while under oath, when there were

two separate 8th Circuit decisions and numerous district court decisions directly

finding that the state was responsible for the unconstitutional discrimination, had

an affirmative duty under Brown v. Board of Education to end segregation and was

liable for the costs of desegregation?

OVERVIEW

Answer: Since my selection by then-President-elect Bush to be his nominee for US

Attorney General, questions have been raised concerning the role I played as Attorney General during desegregation cases in St. Louis and Kansas City, Missouri. It

is my view that my role and position have been mischaracterized or misinterpreted

throughout this process, including during the hearing before the Senate Committee

on the Judiciary. I believe these mischaracterizations arose from a fundamental

misunderstanding of the legal differences between an intradistrict and interdistrict

remedy for school desegregation. Indeed, perhaps I was not as clear as I should have

been in terms of detailing the matters that affected the conduct of these cases, as

well as my role in the process of representing my client, the State of Missouri.

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As I trust I can now make clear, the legal distinction between a remedy to remove

the vestiges of segregation in a single school district (an intradistrict remedy) and

a remedy that assumes that the State of Missouri was liable for segregation among

a number of school districts (an interdistrict remedy) depends on separate findings

of liability. Although the State of Missouri was found liable for a role in segregation

within the City of St. Louis School District, and, in a separate case, in the City of

Kansas City School District, I testified correctly that the State of Missouri had

never been found liable for interdistrict liability in the City of St. Louis Metropolitan Area. Indeed, the only case in which the State of Missouri had a hearing and

an opportunity to defend a claim that it was liable for participating in a system of

interdistrict segregation occurred in the Kansas City case. There, the court found

that the State of Missouri had not violated the Constitution on an interdistrict basis

in the Kansas City Metropolitan Area.

My actions in these cases make one point very clear: I never opposed desegregation. In fact, I firmly believe that any system that discriminates against persons on

the basis of race is abhorrent to the Constitution. As Attorney General of Missouri,

I did oppose the requirements of the federal court in St. Louis that the State of Missouri fund an interdistrict remedy without first finding that the State of Missouri

violated the law on an interdistrict basis. I did not appeal and did not object to a

finding that the State of Missouri was guilty of an intradistrict violation in the City

of St. Louis School District.

In Kansas City, I opposed the methods chosen by the trial court to remedy the

intradistrict liability found in that case. I believed then, and I believe now, that the

focus of any remedy following a finding of segregation must be primarily on educating children. The Kansas City remedy had an obvious, different focus, to which I

objected on both sound legal and policy grounds. There is now universal agreement

that the judge failed the children of Kansas City by ignoring my objections to his

plan and placing his emphasis on everything but the children and their families.

DETAILS OF THE ST. LOUIS LITIGATION

The original plaintiffs sued the St. Louis School Board on February 28, 1972,

claiming that the St. Louis School Board had adopted policies fostering segregation.

The plaintiffs did not name the State of Missouri as a defendant in the case. On

December 24, 1975, the plaintiffs and the St. Louis School Board announced an

agreement to settle the case and asked the District Court to approve a consent decree. The NAACP and other parties moved to intervene in the action to oppose the

settlement. The District Court did not allow the intervention. On appeal, the U.S.

Court of Appeals for the Eighth Circuit reversed the District Court finding and ordered intervention by these new plaintiffs and a hearing to consider these new

plaintiffs’ claims before ruling on the consent decree. When the new plaintiffs’ disagreements with the proposed consent decree made it plain that consensus could not

be reached, the District Court ordered a liability hearing and added the State of

Missouri as a defendant in the case for the first time.

After a lengthy liability hearing, the District Court found that the ‘‘State of Missouri effectively removed all barriers at the state level to the desegregation of

schools. . . ’’ Liddell v. Board of Education of the City of St. Louis, 469 F.Supp.

1304, 1314 (E.D. Mo. 1979). On appeal, the Eighth Circuit reversed, and noted testimony that ‘‘an interdistrict remedy funded by the State of Missouri would have the

best chance of permanently integrating the schools of the metropolitan St. Louis

area.’’ It should be noted that at this point, although the Eighth Circuit was suggesting an interdistrict remedy, the suburban school districts were not defendants

in the case. The Eighth Circuit also established guidelines for the District Court on

remand, including suggestions for a comprehensive program of exchanging students

between the City and suburban districts. Adams v. U.S., 620 F.2d 1277 (8th Cir.

1980). As Attorney General, I did not ask the Supreme Court to review this decision,

believing on sound legal grounds that no interdistrict remedy could be imposed

without a finding of interdistrict liability.

On remand, the District court ordered a comprehensive plan with both

intradistrict and interdistrict relief. Paragraph 12(c) required mandatory interdistrict busing. The State was required to pay 50% of the costs of the interdistrict plan

as a remedy for an intradistrict violation. It is important to note that although the

District Court found that the State was a ‘‘primary constitutional wrongdoer’’ as it

related to the intra district violations, it did not find any State liability for the interdistrict violations.

I appealed the case on behalf of the State of Missouri—eight years after the original case was filed—on three grounds: (1) The interdistrict remedy exceeded the

scope of the State’s liability; (2) No liability was found against the suburban school

512

districts because they were not parties to the case; and (3) No interdistrict violation

was determined by the Court. The Eighth Circuit affirmed the District Court’s decision, in party by characterizing Paragraph 12(c)—the mandatory interdistrict busing

requirement- as a mere suggestion.

On remand, in January 1981, the suburban school districts were added as defendants. The District Court realigned the St. Louis School Board as a plaintiff, and

scheduled a trial for March 1983. In August 1982—six months before the trial

date—the District Court informed the parties that if the suburban districts were

found liable, the court would order mandatory busing and consolidate City District

with suburban school districts. The District Court’s threat, made before a hearing

and without the benefit of evidence, had its intended effect: The suburban districts

approached the St. Louis School Board and, without consultation with my client, the

State of Missouri, agreed to settle the case on the condition that the State of Missouri fund the bulk of interdistrict busing, magnet schools, and St. Louis School District improvements to which these parties agreed without the State’s approval.

The State of Missouri objected on the basis that there had been no trial to determine interdistrict liability. The basis for the objection was that the State could not

impose a settlement on a non-consenting defendant. In addition, sound legal principles announced by the United States Supreme Court in Milliken I dictated that

a finding of interdistrict liability must exist before a court could impose an interdistrict remedy. Further, Milliken II required a narrowly tailored interdistrict remedy

to fit the nature and extent of interdistrict liability. Such narrow tailoring would

be difficult in the absence of a trial to determine the nature and extent of interdistrict liability.

The State of Missouri submitted its own plan to resolve the case, focusing on remedying the only liability that a court had found—the vestiges of segregation in the

St. Louis School District. The District Court rejected Missouri’s plan to remedy the

only liability that had been found—namely, the intradistrict violation.

Despite the State of Missouri’s legal argument that the consent decree conflicted

with Supreme Court precedent, the District Court approved the consent decree imposing an interdistrict remedy, even in the absence of a finding of interdistrict liability. The State of Missouri appealed the order. On appeal, the Eighth Circuit affirmed. The U.S. Supreme Court did not accept certiorari.

In sum, I never advised my client to ignore valid federal orders. I was never found

in contempt of any court. I always directed that the State of Missouri participate

in good faith in annual budget negotiations to fund the plan, and subsequent appeals were designed only to reach a resolution of matters that our negotiations could

not resolve.

DETAILS OF THE KANSAS CITY LITIGATION

In the case involving Kansas City, the suit was filed against both the City and

suburban districts. After trial, the District Court ruled that there was no interdistrict violation of the law and dismissed the Kansas City suburban school districts.

The District Court did find that the State and the Kansas City School District

were guilty of intradistrict violations.

Despite my disagreement with the methods chosen by the District Court to remedy the vestiges of segregation in the Kansas City School District, I cooperated with

final orders of the courts without fail. I was publicly attacked by the then-treasurer

of the State of Missouri, a Democrat, as being too willing to spend the state’s funds

on federal court orders. Indeed, when the treasurer, considered withholding payments ordered by the District Court, I worked with that official to arrange a system

that would alleviate his concerns and assure that the State of Missouri would obey

the court’s desegregation orders.

Question (2): You also implied that you did not resist or subvert any court orders.

In response to one of my questions, you testified:

‘‘In all of the cases where the court made an order, I followed the order, both as

attorney general and as governor. It was my judgment that when the law was

settled and spoken that the law should be obeyed.’’

In 1980, the district court ordered you to submit a plan for desegregation within

60 days. Did you comply with that order and submit a plan within 60 days? After

the 60 days, did you eventually submit a desegregation plan for the court’s consideration? If so, please attach a copy of that plan. Did the court accept that proposal

as a good faith attempt to propose a solution to desegregation of the St. Louis

schools?

Answer: Please see answer above.

513

Question (3): Do you believe that state and local governments that actively maintained a segregated school system in the past have an affirmative duty to actively

desegregate the school system? In your view, is it sufficient for a government that

has maintained segregated schools to simply repeal the laws which required segregation? If not, what additional steps must be taken?

Answer: Absolutely. I strongly oppose segregation. I believe it is wrong and it is

unconstitutional. I support integration, and believe that we should take active steps

to tear down barriers to integration and to extend full opportunity to all children.

Question (4): Do you view Section 5 of the Voting Rights Act as an important tool

through which the Justice Department can continue protecting the voting rights of

minority citizens in this country?

Answer: Yes.

Question (5): Do you see Section 2 of the Voting Rights Act as an important tool

in the battle to protect equal voting rights in this country?

Answer: Yes.

Question (6): As Attorney General, will you continue to enforce the ‘‘discriminatory

effects’’ standard under the Voting Rights Act?

Answer: I will follow the law on voting rights, as established by the Supreme

Court. Voting is a fundamental civil right. If fortunate enough to be confirmed as

Attorney General, I will work to aggressively and vigilantly enforce federal voting

rights laws. It will be a top priority of a Bush Department of Justice, part of what

I would hope would be its legacy.

Question (7): Are you willing to vigorously enforce Section 203 of the Voting

Rights Act which requires the ballots and other election-related materials be translated in certain areas of the country where a number of citizens are limited English

proficient?

Answer: I will follow the law on voting rights, and will vigorously enforce the Voting Rights Act in its entirety.

Question (8): As Attorney General, how will you decide when to ask the Supreme

Court to overrule a precedent with which you disagree, and when to argue for the

preservation of that precedent?

Answer: As Attorney General, I do not believe it would be appropriate to seek the

reversal of any Supreme Court decisions in a vacuum. As cases arise, I will, if confirmed, thoroughly review the law and facts of each and every one, and determine

what positions of advocacy are consistent with the law and in the best interests of

the United States. My approach will take into account the important role that stare

decisis plays in the rule of law and will be law-oriented, and not results-oriented.

Question (9): In 1990, as Governor of Missouri, you vetoed a bill that would have

provided up to eight weeks of unpaid maternity leave for mothers of new babies or

adopted children under the age of three who worked for employers of 50 or more

employees. [SB 542, vetoed July 13, 1990.] In your veto message, you said the bill

would ‘‘put Missouri employers at a competitive disadvantage with similar businesses’’ in states that did not have similar legal protections, and suggested you

might support such a bill if it ‘‘originate[d] from the federal government.’’ Today,

of course, there is such a bill, the federal Family and Medical Leave Act of 1993

(FMLA)—a law that was passed with large bipartisan majorities in both the Senate

and the House of Representatives.

The Justice Department has participated in litigation involving enforcement of the

FMLA by state employees, arguing that Congress was well within its authority

under the 14th Amendment in authorizing state employees to sue to enforce their

rights under the federal law. If you are confirmed as Attorney General, will you continue to argue in the courts that state employees can sue to enforce the federal

Family and Medical Leave Act?

Answer: I do not believe it would be appropriate for me to comment on pending

litigation, but my approach to the Family and Medical Leave Act, as to all other

statutes passed by Congress, will be to defend the Act so long as a good-faith and

conscientious basis exists for doing so.

Question (10): During your testimony before the Senate Judiciary Committee, you

said you do not believe the Supreme Court is prepared to overturn Roe v. Wade.

If the composition of the Supreme Court changes during the next four years, would

you support efforts to ask the Supreme Court to reconsider Roe v. Wade?

Answer: As I said at the hearing, I accept Roe and Casey as the settled law of

the land. I don’t think it’s the President’s agenda, nor would it be my agenda, to

seek an opportunity to overturn Roe or Casey.

Question (11): During your testimony, you said, ‘‘Roe v. Wade defined a setting,

which said that abortions were not to be regulated—or not to be forbidden, but it

514

left a very, very serious gap in the health care system regarding reproductive health

services.’’ You went on to say, ‘‘Now, you’ve criticized me because I said that I would

uphold the law and the Constitution of the United States, and then I did things to

define the law by virtue of lawsuits. I did things to refine the law when I had an

enactment role, which is the job of a governor when he signs things into the law.’’

(emphasis added)

• In your opinion, beyond the issue of partial-birth abortion, what specific issues remain undefined or unrefined under Roe v. Wade and Planned Parenthood v.

Casey?

Answer: The President has said that he will provide leadership to take positive,

practical steps to reduce the number of abortions, including ending partial-birth

abortions, helping women in crisis through maternity group homes, encouraging

adoption, promoting abstinence education, and passing laws requiring parental notification and waiting periods. If the Congress passes legislation along these lines, it

will be my obligation as Attorney General to defend that legislation, so long as a

good-faith and conscientious basis exists for doing so. The case law in this area, as

in every, develops on a case-by-case basis, and I cannot anticipate every question

that could arise concerning the scope and reach of the governing decisions. However,

I can assure you that to the extent the questions arise in the context of legislation

passed by this Congress I will defend the constitutionality of the legislation, so long

as a good-faith and conscientious basis exists for doing so

• Most legislation regulating abortion includes an exception for cases in which a

woman’s health may be jeopardized. In your opinion, under existing precedent,

what limitations may be placed on health exceptions?

Answer: The appropriate exceptions for partial-birth abortion legislation are a

matter for the legislature to decide, consistent with Supreme Court precedent. If the

Congress passes legislation banning partial-birth abortion, it will be my obligation

as Attorney General to defend that legislation, so long as a good-faith and conscientious basis exists for doing so.

• While serving as Governor of Missouri, you signed an abortion statute into law,

and it became effective in 1986. The statute was challenged, and the Supreme

Court accepted the case for review (Webster v. Reproductive Health Services, 492

U.S. 490 (1989)). When briefing the Court, the state of Missouri argued that Roe

v. Wade should be overturned. The State asserted ‘‘that the values implicit in

the Constitution do not compel recognition of abortion liberty as fundamental.’’

Would you explain how that argument ‘‘defined’’ or ‘‘refined’’ the Roe v. Wade

decision?

Answer: As Governor, I was not the primary draftsman of the state’s appellate

brief in that case. I am, however, proud of my leadership in enacting that legislation, much of which the Supreme Court explicitly found to be fully consistent with

Roe. As Attorney General, my role will not be to enact legislation or sign it into law,

but rather to defend legislation that the Congress chooses to enact.

Question (12): In recent years, numerous lawsuits have been filed in federal courts

challenging whether colleges and universities can use race as one among many factors in their admissions policies or scholarship decisions. If confirmed as Attorney

General, you will have significant influence over the Bush Administration’s legal position in cases like these.

In a case that has received significant publicity, The University of Michigan is

currently defending both its undergraduate and law school admissions policies

against challenges that they violate the constitution because race is one among

many factors considered in admitting students.

At issue in the Michigan cases is whether diversity is a compelling governmental

interest in the higher education context. The Department of Justice under the Clinton Administration filed an amicus brief in the case urging the district court: ‘‘in

considering the motions for summary judgment, to find that the enrollment of a diverse student body is a compelling interest that may justify consideration of race

as one of many factors in admissions.’’

In December of 2000, in the undergraduate suit, federal district Judge Patrick

Duggan, appointed by President Reagan, ruled for the University on summary judgment, concluding that:

‘‘a racially and ethnically diverse student body produces significanteducational

benefits such that diversity, in the context of higher education, constitutes a compelling governmental interest under strict scrutiny.’’Do you agree with legal position

taken by the Department of Justice in an amicus brief in the Michigan case? Please

explain your answer.

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Answer: If confirmed as Attorney General, I will firmly oppose racial discrimination in all its forms. It would, however, be imprudent of me to comment on the particulars of the Michigan case without first conducting a full and fair review of the

facts and law surrounding that case. If confirmed, I pledge that no decision will be

made absent such a thorough review.

Question: Do you agree with the decision reached on summary judgment by the

district court? Please explain your answer.

Answer: If confirmed as Attorney General, I will firmly oppose racial discrimination in all its forms. It would, however, be imprudent of me to comment on the particulars of the Michigan case without first conducting a full and fair review of the

facts and law surrounding that case. If confirmed, I pledge that no decision will be

made absent such a thorough review.

Question: If confirmed, would you direct the Department of Justice on appeal to

maintain its position or switch sides in the case and argue that, as a matter of law,

diversity is not a compelling interest that may justify the consideration of race as

one of many factors in admissions? Please explain your answer.

Answer: If confirmed as Attorney General, I will firmly oppose racial discrimination in all its forms. It would, however, be imprudent of me to comment on the particulars of the Michigan case without first conducting a full and fair review of the

facts and law surrounding that case. If confirmed, I pledge that no decision will be

made absent such a thorough review.

Question (13): As you know, the Department of Transportation has a number of

very successful programs that give qualified minority-owned and women-owned

small businesses a fair chance to compete for contracts on federally-funded highway

projects.

In September 1997, as Chairman of the Subcommittee on the Constitution, Federalism, and Property Rights, you held a hearing entitled: ‘‘Unconstitutional SetAsides: ISTEA’s Race-Based Set-Asides After Adarand.’’ The title of the hearing

clearly demonstrated your hostility to these programs. In your opening remarks, you

stated: (1) ‘‘. . . it is obvious that ISTEA uses racial classifications in an impermissible way’’; (2) ‘‘. . . the ISTEA set-asides strike me as an easy case. Their

unconstitutionality appears plain...’’; and (3) ‘‘The oath we take to uphold the

Constitution gives us an obligation to vote against unconstitutional enactments.’’ Despite your strong opposition to these equal opportunity programs in Committee

and in the full Senate, a majority of the Senate voted in March 1998 to reauthorize

them. And several months ago, a unanimous panel of the 10 th Circuit Court of Appeals ruled that the exact same programs you had called an ‘‘easy case’’ and criticized as ‘‘unconstitutional’’ were, in fact, constitutional. The Court found specifically

that: (1) ‘‘Congress has a compelling interest in eradicating the economic roots of

racial discrimination in highway transportation programs funded by federal monies’’; and (2) ‘‘[W]e conclude that the . . . relevant programs... meet the

requirements of narrow tailoring.’’ (228 F.3d 1147)

Do you believe that the 10 th Circuit’s decision was wrong? Please explain your an- swer. Answer: It would be inappropriate for me to comment on pending litigation, although I would note that it is my understanding is that the 10 th Circuit reversed

the District Court’s grant of summary judgment and remanded for further proceedings, rather than finally deciding that the challenged program was, in fact, constitutional. As a general matter, it is likely that some federal race-conscious programs

are not constitutional under Adarand. Indeed, my recollection is that even Mr. Lee

identified one such program. That being said, it is the longstanding policy of the

Department of Justice to defend any federal law for which a reasonable and conscientious defense can be raised. If confirmed, I will enforce this policy in the area

of racial set-asides, as in all other areas.

Question: A petition for certiorari has been filed. If you already have concluded

that the ISTEA programs are unconstitutional, will you refuse to defend their constitutionality if you are confirmed as Attorney General? Please explain your answer.

Answer: It would be inappropriate for me to comment on pending litigation. As

a general matter, it is likely that some federal race-conscious programs are not constitutional under Adarand. Indeed, my recollection is that even Mr. Lee identified

one such program. That being said, it is the longstanding policy of the Department

of Justice to defend any federal law for which a reasonable and conscientious defense can be raised. If confirmed, I will enforce this policy in the area of racial setasides, as in all other areas.

Question (14): When James Hormel was nominated to be Ambassador to Luxembourg you had not had a conversation with him in over 30 years. Moreover, you did

not attend his confirmation hearing, nor did you ask him any written questions. You

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also refused his request to meet in person. Yet, when Senator Leahy asked you to

explain the reason(s) for your opposition to the nomination, you repeatedly stated

that you based your decision on the ‘‘totality of the record.’’ Can you explain in detail what specific facts and circumstances comprised the ‘‘totality of the record’’? If

Mr. Hormel’s sexual orientation was not one of these facts and circumstances, then

why did you fail to afford him an opportunity to respond to your concerns regarding

his nomination?

Answer: Based on the totality of Mr. Hormel’s record of advocacy, I did not believe

he would effectively represent the United States in Luxembourg, the most Roman

Catholic country in all of Europe. I opposed the confirmation of Ambassador Hormel

in committee. That was the extent of the action I took concerning his nomination.

Given the pressing demands of fulfilling the responsibilities of a U.S. Senator, there

were other interests in the Senate upon which I was primarily focused.

Question (15): What was the total number of interim judicial appointment you

made as Governor of Missouri? What number of these interim appointments were

minorities? What number of these interim appointments were women?

There were 70 panels of 3 individuals submitted by the appropriate commission

for appellate and trial court vacancies presented to me as Governor under Missouri’s

nonpartisan court plan. There was only one African American candidate who was

not then or later appointed by me to a current or subsequent judgeship. In effect,

8 out of 9 available minority candidates were appointed from these panels, including

the first African American on the Missouri Court of Appeals and the first African

American woman on the St. Louis County Circuit Court.

For counties outside of the nonpartisan court plan, 21 judges were appointed to

vacancies until the next election, none of whom was African-American. However, our

research has found no minority members of the Missouri Bar who expressed an interest in or were available (by virtue of residency) for any of these vacancies for

these out-state judgeships which must stand for election every 4 years for an Associate Circuit Judge, and 6 years for a Circuit Judge.

Thirteen female judges were appointed to judicial vacancies in both the nonpartisan court plan and out-state areas, including the first female on the Missouri

Supreme Court.

INS RESTRUCTURING

Question (16): As Attorney General, you will have jurisdiction over the Immigration and Naturalization Service, an agency plagued with many problems and in

need of reform. President Bush has stated that he supports a comprehensive reform

of the INS, similar to legislation Senator Spencer Abraham and I introduced last

Congress. This plan would separate the enforcement and service functions of the

INS, but keep them under one agency headed by an Associate Attorney General.

Maintaining a strong central authority ensures a uniform and coherent immigration

policy, resulting in both strong and fair enforcement of our immigration laws, and

efficient delivery of immigration services.

As Attorney General, how do you envision balancing the INS’s often conflicting

missions of enforcement and services? What measures would you propose to ensure

adequate funding for the service functions?

Answer: If I am fortunate enough to be confirmed as Attorney General, I will

strongly support the President’s proposal to reform the INS comprehensively and divide it into separate service and enforcement agencies. As the President has said,

legal immigrants should be welcomed with respect and open arms, and service to

legal immigrants should not be delivered with suspicion or hostility. I recognize the

important leadership you and Senator Abraham have taken in this regard, and look

forward to working with you to implement these reforms.

EXPEDITED REMOVAL

Question (17): As you know, our nation was largely founded by persons fleeing religious persecution in Europe. Christians and other religious minorities are still suffering serious persecution in many countries around the world. Some of the more

fortunate individuals succeed in escaping and are accepted into the U.S. refugee program. Others, seeking asylum in the U.S., are not as fortunate.

Too often, under the present law of expedited removal, immigration officers, with

no special training in asylum law or human rights conditions in particular countries

have the authority to summarily place asylum seekers on the next plane back to

the country of their oppressor. These decisions are made with no independent monitoring or judicial review. In many cases, these INS enforcement officers have

turned back asylum seekers even though they have expressed clear fear of return.

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Is this a fair way to treat people fleeing persecution? As Attorney General, would

you support legislation, such as that introduced by Senator Brownback and Senator

Leahy, to limit the use of expedited removal?

Answer: Although I cannot comment on specific legislation, I believe we should

treat those fleeing persecution with compassion and fairness. America was founded

as a beacon of hope to the world, and that is a heritage we should continue. I will

be happy to work with you and with Senators Brownback and Leahy to ensure that

our immigration laws are administered fairly and humanely.

DUE PROCESS

Question (18): In 1996, Congress tightened the immigration laws. For example,

Congress redefined and expanded the types of offenses for which immigrants, including lawful permanent residents, can be deported and applied those definitions

retroactively. The new laws also eliminated the ability of immigration judges to consider mitigating factors such as length of time in the U.S., community ties, family

hardship, rehabilitation, and even U.S. military service, when deciding whether to

deport a person. The laws also removed the ability of the federal courts to review

deportation decisions. The result is that long-time, law-abiding immigrants with

U.S. citizen spouses and children have been deported for minor offenses committed

long ago. These changes seem to violate fundamental principles of family integrity,

individual liberty, and due process.

As Attorney General would you support changes in the immigration law that

would eliminate the retroactive application of these provisions, restore discretion to

immigration judges to make case-by-case determinations, and restore judicial review?

Answer: I am certainly troubled by some of the stories that have emerged as a

result of the 1996 law. I know that there have been both legislative and administrative attempts to address these kinds of concerns, and I look forward to working with

you to see if we can find a way to do so while at the same time allowing for the

swift removal of serious or violent criminals.

SECRET EVIDENCE

Question (19): The INS is currently using secret evidence—undisclosed classified

information—to deny bond, asylum, and other immigration benefits to non-citizens,

who it claims are risks to national security. President Bush has called this an unfair

practice and spoke favorably during the Presidential debates of a bill I co-sponsored

last year with Senator Abraham—the Secret Evidence Repeal Act. In 1995, you

voted for a Specter amendment (No. 1250) to the Comprehensive Terrorism Prevention Act of 1995 that would require the Attorney General to provide an unclassified

summary of the reasons for the initiation of deportation proceedings against a person, where classified information justifying the deportation is not disclosed. Although this amendment was adopted, the provision was ultimately dropped from the

final legislation.

Do you agree with President Bush that such secret evidence is unfair? Would you

support the Secret Evidence Repeal Act—which President Bush spoke favorably of

during the Presidential debates?

Answer: I am troubled by some of the stories I have heard about the use of secret

evidence and believe that such uses must be reconciled with Due Process. While I

cannot comment on specific legislation, I look forward to working with you to find

a way, consistent with national security, to protect the rights of citizens and aspiring citizens coming to our nation.

DOMESTIC VIOLENCE-BASED PERSECUTION

Question (20): Human rights organizations and women’s rights advocates have

been working for many years to obtain recognition for gender-related asylum claims

under U.S. refugee and asylum law. This recognition is consistent with the growing

body of international human rights law and the sentiment of the international community. Canada, Britain, Australia and New Zealand recognize gender-based asylum claims, including asylum protection for victims of domestic violence.

Last month, Attorney General Reno and the INS Commissioner proposed regulations establishing a broad analytical framework for the consideration of asylum

claims based on membership in a particular social group, including the recognition

that victims of domestic violence may qualify for asylum. These regulations provide

generally applicable principles that will govern the case-by-case adjudication of gender-based claims, including those based on domestic violence or other serious harm

inflicted by non-state actors.

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The Department of Justice is receiving comments from human rights groups and women’s rights groups, praising the broad approach in the proposed regulations and

suggesting improvements to ensure the fair adjudication of gender-based asylum

claims, including domestic violence claims.

What direction will you provide as Attorney General to ensure that the broad analytical framework set forth by these proposed regulations is followed in the final regulations issued by a Department of Justice under your leadership?

Answer: Although I have not reviewed these specific proposed regulations, I believe we should treat those fleeing persecution with compassion and fairness. My

commitment to fighting domestic violence and violence against women is longstanding, and I will maintain that commitment wholeheartedly at the Department of Justice. I will be happy to work with you to ensure that our immigration laws are administered fairly and humanely, in this and other respects.

Question (21): You have testified that as Attorney General it will be your obligation to defend the laws as enacted by Congress. In 1998 the House and the Senate,

by bipartisan majorities, reauthorized the Department of Transportation’s Disadvantaged Business Enterprise Program. In 2000, the United States Court of Appeals

for the Tenth Circuit reversed the district court in the Adarand v. Slater case and

upheld the constitutionality of the program. (228 F.3d 1147). A petition for certiorari

has been filed. As Attorney General, will defend this case in the Supreme Court and

defend the program against other legal challenges by those who oppose to race-conscious affirmative action?

Answer: It would be inappropriate for me to comment on pending litigation. As

a general matter, it is the longstanding policy of the Department of Justice to defend any federal law for which a reasonable and conscientious defense can be raised.

If confirmed, I will enforce this policy in the area of racial set-asides, as in all other

areas.

Question (22): When you answered questions from Senator Leahy about the Bill

Lann Lee hearings and the Adarand decision on the first day of the hearings, you

referred to a Federal District Court opinion in the Adarand case. Were you aware

that the decision you cited had been reversed by the United States Court of Appeals

for the Tenth Circuit?

• If you were aware of the 10 th Circuit decision in Adarand, please explain why you

cited the District Court case in your testimony. • If you were unaware of the 10 th Circuit opinion, how does the decision change

your view on the constitutionality of race-conscious affirmative action programs

in general and the Department of Transportation’s Disadvantaged Business Enterprise Program in particular?

Answer: My understanding is that the 10 th Circuit reversed the District Court’s ruling on summary judgment and has remanded for further proceedings, but has not

definitively ruled that the statute is constitutional. In any event, the 10 th Circuit

decision post-dated both the Constitution Subcommittee’s hearing on set-asides and

the Bill Lann Lee vote and so my explanation for my positions at those times was

informed by the District Court’s summary judgment ruling. Although the District

Court decision informed my thinking at the time of the ISTEA hearing, the 10 th Circuit’s more recent decision will inform my thinking as Attorney General, if I am confirmed by the Senate.

Question (23): In your testimony, you quoted a portion of the Adarand district

court opinion in which the judge stated that he found it ‘‘difficult to envisage’’ a

race-conscious program that would be narrowly tailored. Did you agree with the district court that the ‘‘compelling interest’’ portion of the test was met by Congress’

examination of discrimination in the transportation industry?

Answer: It would be inappropriate for me to comment on pending litigation. I can

say that there is much the government can do to ensure affirmative access in the

transportation industry. As a general matter, it is likely that some federal race-conscious programs are not constitutional under Adarand. Indeed, my recollection is

that even Mr. Lee identified one such program. That being said, it is the longstanding policy of the Department of Justice to defend any federal law for which a reasonable and conscientious defense can be raised. If confirmed, I will enforce this policy

in the area of racial set-asides, as in all other areas.

Question (24): Please identify each and every amicus brief which you or persons

working under your direction authored or joined at any time during your tenure as

Senator, Governor or Attorney General.

Answer: I have not maintained specific records of amicus briefs prepared or joined

by me or my staff during my 26-year career in public service. During that time, numerous briefs were filed. Indeed, in some cases, the varying positions of entities to

which the Attorney General’s office provided legal service required the office to file

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multiple briefs. Because these briefs were filed in courts of law, they are matters

of public record.

Question (25): In employment discrimination, the Supreme Court has held that

race-conscious relief and gender conscious relief are sometimes the only effective

form of relief for past discrimination, or to prevent ongoing discrimination. See U.S. v. ParadisT1, 480 U.S. 149 (1987)(race); Johnson v. Transportation Agency of Santa

Clara Co., 480 U.S. 616 (1987)(sex). • Do you agree that race-conscious and gemder-conscious relief are sometimes necessary and appropriate means of combating employment discrimination?

Yes. • As Attorney General, would you continue the current policy of the Justice Department to seek race-conscious or gender-conscious relief in appropriate cases?

Answer: I would support race-conscious or gender-conscious relief in cases it was

consistent with the requirements of law.

• As Attorney General, would you attempt to re-open any cases with existing court

orders that include race-conscious or gender-conscious relief?

Answer: If I am fortunate enough to be confirmed as Attorney General, I will assess case strategy in particular matters on a case-by-case basis, conferring with the

experienced professionals at the Department of Justice, and make judgments based

on the law and the facts of each specific case.

Responses of the Nominee to questions submitted by Senator Kohl

f1. ANTITRUST—MCI WORLDCOM/SPRINT

A little more than a year ago, the Judiciary Committee held a hearing on the competitive implications of the then-pending merger between MCI WorldCom and

Sprint, a merger which was ultimately abandoned when the Justice Department opposed it. The merger would have combined the second and third largest long distance phone companies and would have resulted in two companies capturing nearly

80 percent of the long distance market. Despite these large market shares, you said

that ‘‘I am strongly inclined to support the proposed merger.’’ While you acknowledged that the competitive implications of the merger needed

to be examined, they were secondary to ‘‘my largest concern’’—‘‘the jobs of the hard

working and talented people of the State of Missouri.’’ Finally, you argued that in

examining this merger, ‘‘the current landscape is not the landscape to be considered—instead it should be analyzed based on the possible future of the marketplace.’’

Question: Are your statements at the MCI WorldCom/Sprint merger hearings indicative of the approach you believe the Justice Department’s Antitrust Division

should take when reviewing mergers? Under the Department’s Merger Guidelines,

the competitive implications of the proposed merger are paramount and the merger

is analyzed with regard to the current state of the marketplace. Would you make

any changes to the Antitrust Division’s standards for reviewing mergers such as

paying more attention to factors other than the merger’s likely effects on competition?

Do you think the Justice Department was mistaken to oppose the now abandoned

MCI WorldCom/Sprint merger? [If yes,] why? Should we be worried when a merger

leads to such high concentration as this one—which would have resulted in two

companies controlling nearly 80% of the market—could lead to higher prices for consumers?

Answer: In the area of antitrust enforcement, the competitive implications of any

proposed merger are of paramount importance. Thus, I would approach any proposed merger with an eye towards ensuring open competition in the marketplace.

I would be open to considering modifications to the Antitrust Division’s standards

for reviewing mergers, but would do so in consultation with the antitrust experts

in the Department of Justice. With respect to the MCI WorldCom/Sprint merger in

particular, I believe it would be imprudent to comment on the specifics of this transaction, or any transaction, without the benefit of the full knowledge of the Antitrust

Division.

2. ANTITRUST—SHERMAN ACT

The fundamental antitrust law—the Sherman Act—was enacted more than a hundred years ago. For more than a century, it has protected the principles we hold

most important—competition, consumer choice, fairness, and equality.

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The antitrust laws are significant because they ensure that competition among

businesses of any size will be fair and that consumers will pay low prices for all

sorts of goods and services. And these laws have a proud tradition of being supported in a non-partisan manner—they’ve been vigorously enforced over the years

by both Republicans and Democrats.

Question: What role do you think antitrust laws have had in shaping our economy

and preserving competition?

How should we use antitrust laws to protect against consolidation of economic

power—to make sure that consumers aren’t charged high prices by large companies

that have swallowed up their competition?

Answer: The antitrust laws have been a vital part of ensuring a free and open

marketplace in this country and, in my view, should continue to serve this role. By

ensuring that any proposed merger promotes competition, and that an undue consolidation of monopolistic power does not accrue in the hands of a single business

entity, I would help ensure the existence of free and open markets. This, in turn,

would help ensure that consumers are not charged prices above free market levels.

3. ANTITRUST—ENFORCEMENT

In the last few years, the Antitrust Division has been very active in antitrust enforcement, bringing prominent cases, such as the Microsoft case, and challenging

many large mergers, such as MCI WorldCom/Sprint and Lockheed Martin/Northrup

Grumman, to name a few.

Question: How would you evaluate the performance of the Justice Department in

dealing with the MCI WorldCom/Sprint merger and the Lockheed Martin/Northrup

Grumman merger. Do you believe that the Antitrust Division has been appropriately enforcing our nation’s antitrust laws? Is there any change in approach or

philosophy of antitrust enforcement we can expect should you be confirmed at Attorney General?

Answer: I believe that it would be imprudent to comment on how the Justice Department has dealt with the MCI WorldCom/Sprint and the Lockheed Martin/

Northrup mergers in particular, as I have not had the benefit of the Antitrust Division’s full learning on these matters. For the same reason, it would be imprudent

for me to comment upon the Antitrust Division’s enforcement of the antitrust laws

in any particular cases. With respect to the philosophy of antitrust enforcement that

I would follow should I be confirmed as Attorney General, I can assure you that I

will fully enforce the antitrust laws to help ensure free and open competition in the

marketplace.

4. ANTITRUST—FUTURE OF THE ANTITRUST LAWS

Some have argued that our nation’s antitrust laws, many written over a hundred

years ago, are outmoded and need to be updated before they can be applied to today’s high-tech industries. Others believe that the antitrust laws apply equally well

to modern economic problems and high-tech industries as they did to problems of

economic concentration in the railroad, oil and other industries when they were first

written.

Question: What is your view? Do you think our antitrust laws are outmoded and

in need of revision?

Answer: The antitrust laws have proven to be flexible enough to adopt to many

new situations. That being said, one should always be open to the possibility that

improvements could be made, particularly where fundamental economic shifts have

occurred. If confirmed as Attorney General, I will seek the advice of experts in this

field, including those in the Antitrust Division, before making any determination as

to whether are antitrust laws are in need of any revision.

5. ANTITRUST—EUROPEAN REVIEW

Another issue that has arisen in the last few years relates to European review

of mergers involving American companies, especially given the increasing

globalization of the world’s economy and the increasing numbers of mergers of

American companies that affect the European market. In many cases, because of

their different time limits, European merger authorities reach decisions on these

mergers before the U.S. antitrust authorities. This can result in the European

Union deciding to block a merger before the Justice Department has concluded its

review. In addition, there have been concerns raised that, in some instances, the EU

may have been motivated by protectionist sentiments, and may have scrutinized

mergers involving American companies more strictly than those of European companies.

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Question: What’s your view of these issues? Do you believe that European antitrust authorities are properly scrutinizing mergers and other antitrust issues involving American companies? And do you think that the Antitrust Division can take

steps to better harmonize its antitrust review with the European antitrust authorities?

Answer: I believe that in an increasingly global economy, it is important, to the

extent practicable, for different nations to enforce their antitrust laws consistently

to promote a free and open marketplace. I believe that it would be imprudent for

me to comment on how European antitrust authorities are addressing antitrust

issues as they relate to American companies without the full learning of the experts

in the Antitrust Division. I assure you that here, as in all other areas, if confirmed

as Attorney General, I will take all appropriate action in full consultation with the

experts in the field, and act so as to promote free and open markets. I can further

assure you that I will fully consult the antitrust experts, including those in the

Antitrust Division, before determining what steps may be appropriate to enhance

consistency between European and American antitrust review. Finally, in evaluating candidates for the position of Assistant Attorney General for Antitrust, in conjunction with the President, I would ensure the candidate had the proper diplomatic

skills to work effectively and cooperatively with his or her counterpart in Brussels.

6. ANTITRUST—CONSISTENT ENFORCEMENT

We should avoid sharp swings in antitrust enforcement. In the past, it has appeared that antitrust enforcement has significantly changed when a new administration takes office, particularly a transition involving a change of political parties.

For example, it appears that the Antitrust Division during the Reagan/Bush years

took a much more hands-off approach to merger enforcement than the Antitrust Division during the Clinton administration.

Changes in the enforcement of the antitrust laws dramatically affect the business

community and the financial markets. Businesses need to be able to expect a consistent basic level of antitrust enforcement from the government regardless which

party is in power.

Question: What will you do to ensure continuity, stability and predictability of law

in antitrust enforcement as the government transfers to a new Administration? And,

what is the basic level of antitrust enforcement that everyone should be able to expect from the Justice Department regardless of party?

Answer: If confirmed as Attorney General, I will vigorously enforce the antitrust

laws to ensure a free and open marketplace. This is both a floor and a ceiling: Wherever appropriate, the law will be enforced. This should provide the consumers and

the business community with the assurance of continuity that they need as to future

antitrust enforcement.

7. ANTITRUST—AGRICULTURE

Turning to agriculture, many family farmers believe that consolidation among

large agribusiness firms have made it increasingly difficult to survive, as they have

little bargaining power with respect to the large agribusiness conglomerates.

Question: What is your view—have the antitrust laws been adequately enforced

with respect to agriculture? And will you assure us that enforcement of antitrust

laws in the agricultural sector of the economy will be a priority of your Justice Department?

Answer: The family farm is an American institution, and one which is fully protected by America’s antitrust laws. Indeed, as you know, the antitrust laws include

special protections for farmers. Coming from Missouri, I am well aware of the difficulties that farmers face as a result of consolidations and mergers. My legislative

record on this matter is clear. As a Senator, I sponsored legislation that would have

enhanced the understanding of the Antitrust Division on agricultural issues. This

Question, however, goes more to the Question of enforcement. And on this Question,

I assure you that I will fully enforce the antitrust laws in the area of agriculture

to help ensure that we have a competitive market for agriculture.

8. CRIME PREVENTION—USE OF FEDERAL MONEY

Recently, my office surveyed all of the sheriffs and police chiefs in Wisconsin on

a variety of law enforcement issues. The survey yielded some very helpful insights

into what the officers on the front lines need from the federal government. Local

authorities were almost unanimous in their belief that the federal government needs

to increase its support for crime prevention programs. On average, the police in my

state support spending at least one-third of federal money specifically on prevention.

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Question: Can you detail your plan for crime prevention programs generally and

pledge to increase the resources required to be used for crime prevention programs

for local police chiefs?

Answer: As a former governor, President Bush has explained his understanding

that state and local authorities are largely responsible for combating violent crime.

He believes the Federal government’s role in criminal justice is primarily international and multi-jurisdictional, including tough policies against organized crime,

drug cartels, and international terrorism. In addition to this role, the President believes the Federal government can do more to improve our criminal justice system:

1. Enforce federal gun laws. The President wishes to give prosecutors the resources they need to aggressively enforce our gun laws and will provide more funding for aggressive gun law enforcement programs such as Texas Exile and Project

Exile in Richmond, Virginia.

2. Develop and promote successful criminal justice initiatives, such as the abolition of parole and truth in sentencing in the federal system.

3. Support state and local law enforcement with federal funding, technical assistance where needed, and a national database to help state and local police identify,

track, and arrest fugitives who move across jurisdictional lines and to prosecute serious hate crimes where local jurisdictions lack the resources to do so.

4. Promote federal and state partnerships to develop advanced technology to help

police work both smarter and more efficiently.

5. Combating terrorism. The President believes that, as a nation, we must have

zero tolerance for terrorism.

In addition, the President is committed to giving local law enforcement greater

authority over federal funds.

Should I be confirmed as Attorney General, I will work with both the President

and the Congress to fully implement this agenda.

If this can be accomplished, local jurisdictions that want to direct resources to prevention will be free to do so, while police departments with different objectives can

prioritize their funding accordingly.

9. HOMESTEAD EXEMPTION

Shortly before declaring bankruptcy, the former Commissioner of baseball, Bowie Kuhn, moved to Florida and bought a $1 million mansion, effectively shielding the

value of that home from his many creditors. While Kuhn was taking advantage of

the loophole in Florida’s bankruptcy law, creditors were preparing to seize his two

homes in the New York area—a state that did not permit him to hide his money

from his creditors.

To remedy this outrage in the bankruptcy laws, Senator Sessions and I offered an amendment to establish a federal homestead cap of $100,000. The amendment

passed with your support by the overwhelming vote of 76–22. As you know, the U.S.

government is a major creditor in these types of bankruptcies and the Justice Department is in charge of collecting. So, this loophole costs taxpayers money and frustrates the Justice Department’s enforcement efforts.

Question: Is there any greater fraud in bankruptcy law than the homestead exemption? Can you think of any reason that we should not make this change in the

bankruptcy laws this year?

Answer: As you mentioned, I supported the amendment that you offered on this

subject. Moreover, because, again as you mentioned, the United States government

is a creditor in many bankruptcy actions, it is important to ensure that—while the

bankruptcy laws allow debtors on hard times to make a fresh start—debtors do not

abuse the bankruptcy laws to avoid paying money due the government and other

creditors. Thus, if confirmed as Attorney General, I commit to you that I will fully

enforce the bankruptcy laws to ensure that all creditors, including the United States

government, receive their just due. Moreover, should Congress decide to alter the

law in this area to, for example, eliminating the homestead exemption—as is its

lawful prerogative—I fully commit to enforcing the law as amended.

10. CRIME PREVENTION—FEDERAL BUDGET FOR PREVENTION PROGRAMS

For fiscal year 2001, the Office of Juvenile Justice and Delinquency Prevention will be funded at $141.7 million for prevention programs (defined to include mentoring, after-school programs, conflict resolution, drug and alcohol prevention, etc.).

This is a dramatic increase from the last year of the Bush Administration when the

budget was only $15.5 million.

Question: These programs have been very successful at preventing crime and

helping at risk kids get on the right track. Will you pledge to continue this trend

toward increased funding for these programs?

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Answer: The President is fully committed to combating juvenile crime and providing sufficient funding to accomplish the task. Indeed, as Governor, he made this a

top priority. Thus, in 1995, he called for and signed legislation overhauling Texas’

outdated juvenile justice laws. The new laws restored responsibility and tough consequences for crimes committed by juveniles. As a result, juvenile crime is down 17

percent in Texas—the first decline in over a decade—and violent juvenile crime is

down 44 percent. I commit to you that I will that I will fully work with the President and Congress to further the President’s agenda in this very important area.

11. ENFORCING THE GUN LAWS

You’ve been a vocal critic not only of new gun laws, but also of the Clinton administration’s record on prosecuting gun crimes. For Fiscal Year 2001, the President included funding for 100 additional prosecutors and $75 million for state and local authorities to hire more prosecutors. Through a strategy that has increased local

awareness of gun crime penalties with increased federal resources to prosecute

those crimes, Operation Ceasefire in Milwaukee has led to a 17% decrease in gun

homicides. Yet, our federal prosecutors warn me that an even greater focus on increased federal prosecutions of gun crimes will divert needed resources from other

tasks unless more federal agents and prosecutors are funded.

Question: How much more federal money and how many more federal and state

prosecutors do you think are necessary to bring the number of prosecutions to an

acceptable level? Will this be an emphasis of your tenure as Attorney General?

Answer: President Bush is fully committed to enforcing America’s gun laws, which

will be a priority in the Justice Department should I be confirmed as Attorney General. Towards that end, the President wishes to give prosecutors all the resources

they need to enforce our gun laws aggressively, and will provide more funding for

aggressive gun law enforcement programs such as Texas Exile and Project Exile in

Richmond, Virginia. I am fully committed to assisting the President in promoting

his agenda in this and all other areas.

12. PRIVACY

Last year on the Judiciary Committee, we explored the FBI’s ‘‘Carnivore’’ system—an e-mail surveillance program designed to track and monitor a suspect’s online communications. This is a powerful law enforcement tool—perhaps too powerful—and we must be sure that it is not misused. If, as we are now learning, ‘‘Carnivore’’ is able to capture all e-mail traffic channeled through an Internet Service Provider (ISP), then the fear of innocent civilians being subject to search without cause

is justified. Such a ‘‘fishing expedition’’ wouldn’t be right.

Question: How important do you think it is that we protect the privacy rights of

civilians, and how serious a threat to privacy would ‘‘Carnivore’’ be if it’s misused

or inadvertently ‘‘captures’’ information other than the suspect’s?

Answer: The Internet has obviously grown to be a vibrant part of our modern

economy. It is the Justice Department’s responsibility to ensure that those who conduct research or business on line can do so in a safe, secure environment. At the

same time, however, we must take care that the government does not become too

heavy handed in its on-line law enforcement activities in order to protect the privacy

rights of law-abiding citizens. As you know, when I was in the Senate, I convened

hearings on the importance of respecting privacy rights in the digital age. If confirmed, I will conduct a thorough review of Carnivore and its technical capabilities,

and work closely with law enforcement to ensure that adequate measures are taken

to secure personal privacy before the program is deployed. I would look forward to

working with you to ensure that a proper balance is struck in this respect.

13. CRIME PREVENTION/ENFORCEMENT—PROACTIVE APPROACH

Starting at the end of the Bush Administration and increasing dramatically during the Clinton years, our United States Attorneys evolved from offices focused

purely on prosecuting crime to offices at the center of proactive community coalitions designed to prevent crime. In Milwaukee, for example, the U.S. Attorney has

had dramatic success in using federal money for prevention through the Weed and

Seed program, after school programs like Safe and Sound, and more Boys and Girls

Clubs among other successful programs. These programs combined with federal assistance for enforcement with a HIDTA (HI-ta) and Operation Ceasefire have resulted in an impressive decline in youth crime and crime generally.

Question: Can I get your assurance today that federal assistance to U.S. Attorneys

will continue as they increase their efforts to lead proactive community coalitions

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to prevent and fight crime? And what will you do to encourage and support this

trend?

Answer: As your Question makes clear, it is very important to fight crime at all

levels—both at the prosecution stage as well as the prevention stage. I have also

witnessed the success of a HIDTA in my home state of Missiouri. Thus, I can assure

you that, if confirmed as Attorney General, I will strongly encourage U.S. Attorneys

to continue their efforts to lead proactive community coalitions to prevent and fight

crime. I further assure you that I will work to ensure that the U.S. Attorneys have

the resources necessary to perform their jobs effectively.

14. MAIL ORDER BRIDES AND HUMAN TRAFFICKING

In 1996, as part of the Immigration Bill, the Senate passed my measure that

called for the INS to issue a study about the growing ‘‘mail-order bride’’ business

in the United States. The INS was also to draft a regulation aimed at requiring

these so-called ‘‘international matchmaking organizations’’ to provide their foreign

women recruits with background information regarding U.S. immigration law. At

the very least, that is what INS was supposed to do according to the law we passed

almost five years ago.

The INS issued a report which suggested that recent developments, in particular

the presence of mail-order businesses on the Internet, will require continued monitoring of this business. More recent events, such as the discovery of a slain mailorder bride near Seattle—her American husband is the suspected murderer—suggest that violence in these types of marriages is a growing problem.

The INS has yet to issue the proposed regulation as required by the 1996 law.

That is unfortunate, because we need to get after these matchmaking agencies to

both better inform the potential brides-to-be, and screen the American bride seekers.

Question: First, do you agree there’s a problem with this mail-order bride industry? If so, will you instruct the INS to take a more active role in policing these practices? At the very least, will you see to it that the INS issue the proposed regulation

that is almost four years overdue?

Answer: I believe that marriage is an institution that should be cherished, and

as Attorney General, I will fully enforce all federal laws concerning human trafficking. I have not examined the issue of mail order brides in depth, but if confirmed,

I will give it appropriate attention, and ensure that the INS takes all appropriate

action required by law, including the laws to which you refer.

15. TRAFFICKING OF WOMEN AND CHILDREN

Trafficking of women and children is a growing global problem, teetering on crisis.

It is hard to believe that an international prostitution and slave trade is thriving—

and growing—in the year 2001. Almost 50,000 persons are trafficked each year to

the United States. These people are victims, not criminals. The real offenders are

the crime lords who manage this despicable trade.

Significant legislation became law late last year—specifically, the Victims of Trafficking and Violence Protection Act of 2000. Part of the goal of this new law is to

target the traffickers, not the victims. So, the act lets the Attorney General extend

special visas to 5000 sex trafficking victims a year. Hopefully, by allowing the victims to remain protected in this country, we will be able to encourage their cooperation in bringing down the traffickers.

Question: The success of this law will be depend upon its implementation. As Attorney General, will you be dedicated to issuing these 5000 newly created visas in

an effort to crackdown on international human trafficking? What is your feeling

generally about how best to fight this terrible practice that terrorizes hundreds of

thousands of women and children each year?

Answer: Like you, I believe that human trafficking is a serious problem. No individual, anywhere, should suffer the indignity of the slave trade. Thus, if confirmed

as Attorney General, I will fully and vigorously enforce the Victims of Trafficking

and Violence Protection Act of 2000, and any other law that Congress chooses to

enact in this area.

16. DEADBEAT PARENTS PUNISHMENT ACT ENFORCEMENT

In 1998, Senator DeWine and I authored the Deadbeat Parents Punishment Act

which became law with widespread bipartisan support. Estimates then indicated

that if delinquent parents fully paid their child support, approximately 800,000

women and children could be taken off the welfare rolls. While I do not have updated figures, I remain convinced that enforcement of the Deadbeat Parents PunishVerDate 11-MAY-2000 11:54 Mar 04, 2002 Jkt 076342 PO 00000 Frm 00538 Fmt 6601 Sfmt 6621 C:\HEARINGS\76342A.004 SJUD4 PsN: SJUD4
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ment Act will yield increased collection of late payments which in turn will make

life easier for tens of thousands of mothers and their children.

Question: Will you pledge to enforce the Deadbeat Parents Punishment Act and

will you detail how you intend to ensure strict enforcement of this law?

Answer: I pledge to you that if confirmed as Attorney General, I will enforce the

Deadbeat Parents Punishment Act. Although I have not studied the details of this

law, I will do so, and do my best to ensure that those meant to be protected by it

are fully protected.

17. PRESUMPTION

You’ve testified repeatedly today that as Attorney General you will enforce the

law—it is your responsibility simply to administer the law as it currently exists.

There are thousands of ongoing cases in the Justice Department—civil suits,

criminal matters, antitrust cases and investigations of all sorts. Some of them are

notable like the Microsoft case, the tobacco lawsuit, airline merger reviews, among

the many cases.

Question: If your job as Attorney General is simply to enforce the law, then are

the Department’s currently pending cases deserving of a presumption that these

cases are worthwhile and deserve continued prosecution?

If these cases are not deserving of such a presumption, what standard will you

use in deciding whether to continue the case?

Answer: Obviously, if confirmed as Attorney General, I have the obligation to become fully informed about the important cases currently being conducted by the Department’s legal divisions. I will utilize the expertise of the Department’s staff,

which has been and will be responsible for the day-to-day management of these

cases, in meeting this responsibility and before concluding that the course of any

of these major litigation matters should be altered.

Responses of the Nominee to questions submitted by Senator Leahy

f Question: List each presidential nominees on which you placed a ‘‘hold’’ while a

United States Senator. In responding, please specify how you are defining ‘‘hold.’’ Answer: In an effort to fulfill my responsibilities as a United States Senator, I

welcomed inquiries by the Majority Leader and Majority Whip regarding the scheduling and floor consideration of items on the legislative and executive calendars.

Though I may have expressly requested prior notification during my six years so

as to participate in debate or be present for a vote, I do not recall (other than as

detailed herein) which, if any, nominations were involved, or the circumstances surrounding any such requests.

Question: Did you or your staff ever indicate to Senator Lott, Senator Nickles or

any other members of the Republican leadership or their staffs a concern in connection with scheduling Senate consideration of a presidential nomination? For each

such occasion please provide a complete discussion of what you did and why you

did it.

Answer: I asked the Senate leadership to consult with me as each presidential

nomination came up. Out of the approximately 1,686 Clinton presidential nominees,

I voted to confirm all but 15. Though I may have expressly requested prior notification during my six years so as to participate in debate or be present for a vote, I

do not recall (other than as detailed herein) which, if any, nominations were involved, or the circumstances surrounding any such requests.

Question: Did you ever indicate that you wished to be consulted by the Majority

Leader in connection with scheduling Senate consideration of a presidential nomination? For each such nomination please provide a complete discussion of what you

did and why you did it.

Answer: I asked the Senate leadership to consult with me as each presidential

nomination came up. Out of the approximately 1,686 Clinton presidential nominees,

I voted to confirm all but 15. Though I may have expressly requested prior notification during my six years so as to participate in debate or be present for a vote, I

do not recall (other than as detailed herein) which, if any, nominations were involved, or the circumstances surrounding any such requests.

Question: Did you ever indicate to anyone that you would prefer the vote on a

presidential nomination not take place or not take place at a certain time? For each

such nomination please provide a complete discussion of what you did and why you

did it.

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Answer: I regularly requested that votes on nominations and legislation take place

to accommodate my schedule during my six years in the Senate, so as to participate

in debate or be present for a vote. I do not recall which, if any, nominations were

involved, or the circumstances surrounding any such requests.

Question: Please describe any other steps that you took to delay or block consideration of a presidential nomination, and the standard you used when you decided to

take such steps.

Answer: I asked the Senate leadership to consult with me as each presidential

nomination came up. Out of the approximately 1,686 Clinton presidential nominees,

I voted to confirm all but 15. Though I may have expressly requested prior notification during my six years so as to participate in debate or be present for a vote, I

do not recall (other than as detailed herein) which, if any, nominations were involved, or the circumstances surrounding any such requests.

Question: You testified on Wednesday that you opposed the nomination of James

Hormel to be Ambassador to Luxembourg because ‘‘based on the totality of his

record,’’ you ‘‘didn’t think he would effectively represent the United States.’’ Please

specify the factors that led you to oppose that nomination and vote against it in

Committee.

Answer: Based on the totality of Mr. Hormel’s record of public positions and advocacy, I did not believe he would effectively represent the United States in Luxembourg, the most Roman Catholic country in all of Europe.

Question: Is it true that you refused repeated requests to meet with Ambassador

Hormel to discuss your concerns about his nomination, and if so, why?

Answer: I opposed the confirmation of Ambassador Hormel in committee. That

was the extent of the action I took concerning his nomination. Given the pressing

demands of fulfilling the responsibilities of a U.S. Senator, there were other interests in the Senate upon which I was primarily focused.

Question: According to news reports, you placed a hold on Ambassador Hormel’s nomination, and threatened to filibuster it if it ever came to the floor for a vote.

What standard did you use for deciding whether to attempt to delay or block a vote

on that nomination.

Answer: I cannot assess the accuracy of published news reports I have not read.

However, it is not correct that I placed a hold on Ambassador Hormel’s nomination.

Although I voted against his nomination in Committee, I do not recall threatening

to filibuster the nomination. Since I do not recall attempting to delay or block a vote

on Hormel’s nomination, the question of the use of a standard is inapplicable.

Question: You initially opposed the nomination of David Ogden to head the Civil

Division at Justice and voted against him in Committee. What if any steps did you

or your staff take in 1999 and 2000 to delay or block Committee consideration of

the Ogden nomination? Why did you oppose the nomination of David Ogden?

Answer: I am not aware of any action taken on my behalf to delay consideration

of the Ogden nomination. I voted against Mr. Ogden in Committee because of concerns about his candor when asked about his knowledge of the Department’s tobacco

litigation.

Question: You voted against the nomination of Alice Rivlin to be a Member of the

Board of Governors of the Federal Reserve System. Why did you oppose the Rivlin

nomination?

Answer: I joined 40 of my Republican colleagues in opposing this nomination. Although I do not recall the details of my opposition, I was concerned about her role

in formulating the President’s controversial budget proposals.

Question: In a 1999 interview for Southern Partisan magazine, you are quoted as

saying: ‘‘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 have argued

against liberal expansionism and I will continue to do so.’’ When you said to Southern Partisan magazine that you ‘‘stopped judges,’’ what nominations and judges

were you referring to, and what did you do in each instance to ‘‘stop’’ them?

Answer: During my tenure as a U.S. Senator, I took the constitutional obligation

to advise and consent on lifetime judicial nominations very seriously. My consistent

standard was whether I believed, based on the totality of the record, that a given

nominee would enforce the law as written, rather than follow his or her own policy

preferences. With Ronnie White and Fredericka Messiah-Jackson, based on their

records and on the concerns expressed by law enforcement, I did not believe they

would do so. In both instances, I voted against the nomination in question and explained to my colleagues my reasons for doing so.

Question: What did you do to delay Senate consideration of the nomination of

Margaret Morrow?

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Answer: I was concerned about the nomination of Ms. Morrow for a District Court

judgeship within the Ninth Circuit Court of Appeals, a court that has had a consistently higher reversal rate before the U.S. Supreme Court than any of her sister circuits. Ms. Morrow’s record, I believed, indicated a hostility to voter referenda in

California and a willingness to supplant the law with her own personal policy preferences. Accordingly, I voted against her in Committee, and requested an opportunity to speak against the nomination when it came before the full Senate. When

the nomination was scheduled for a floor debate, I spoke against the nominee and

voted not to give her an appointment for lifetime tenure on the federal bench.

Question: Why did you oppose the nomination of Judge Sonia Sotomayor to the

Second Circuit in the Judiciary Committee and in the Senate?

Answer: I was concerned about the nomination of Ms. Sotomayor to the Second

Circuit Court of Appeals, because her record as a District Court judge, I believed,

indicated a willingness to stretch the law and to supplant the law with her own personal policy preferences. Accordingly, I voted against the nominee in Committee and

on the final Senate vote.

Question: If confirmed as Attorney General will you employ a standard for recommendations to the President that turns on whether you think the caseload of the

court justifies an appointment? What will your standard for workload calculations

be?

Answer: I believe that a court’s caseload is an appropriate factor for assessing the

need for new judicial appointments, and that the assessment of the sitting judges

on the court in question is a useful measure of that caseload. Obviously, Congress

has an important role to play in assessing the need for federal judgeships and Senator Grassley has played an important role in that process. Ultimately, however, the

appointment of a judicial nominee is the President’s responsibility, with the advice

and consent of the Senate.

Question: Why did you oppose the nomination of Judge Aiken?

Answer: I opposed Judge Aiken based on an evaluation of the entirety of her

record. I was particularly concerned about a sentencing decision she made as a state

trial judge, and her subsequent explanation of that decision. Judge Aiken found a

26-year-old defendant guilty of raping a 5-year-old girl, and sentenced him to 90

days in jail, rather than substantial prison time (which was an available option

under Oregon law), so that he would be eligible for psychological counseling. I considered this focus on the perceived best needs of a convicted rapist over adequate

punishment for a grave threat to the public to constitute a significant lapse in judgment, at best.

Question: Why did you oppose the nomination of Judge McKeown and what did

you do to delay Senate consideration of this nominee?

Answer: I opposed Ms. McKeown’s appointment to the Ninth Circuit because she

had evidenced a hostility to voter initiatives, including efforts to prevent initiatives

from even being placed on the ballot. I was particularly concerned in light of the

fact that voter initiatives were a substantial issue in the Ninth Circuit at the time

and because the Ninth Circuit has had a consistently higher reversal rate before the

U.S. Supreme Court than any of her sister circuits.

Question: Why did you vote against Judge Mollway?

Answer: Ms. Mollway had become identified with a number of legal positions on

various issues, including the validity of prison reform legislation and mandatory

minimum sentences. After her confirmation hearing, I was not convinced that she

had sufficiently distanced herself from some of these previously-expressed positions

or that she fully appreciated the role of a federal judge to allow me to support her

confirmation for a lifetime tenure as a federal judge.

Question: As Attorney General would you not recommend candidates for the federal bench who disagreed with you about the legitimacy of the substantive due process doctrine?

Answer: The Supreme court’s precedents recognize some role for the doctrine of

substantive due process. To the extent I play a role in the process for selecting judicial nominees, I would want to recommend judges who follow the law and the precedents of the Supreme Court. However, to the extent that federal courts are to recognize new substantive due process rights, I believe the Supreme Court has indicated

a preference that it take the lead in any judicial expansions of this doctrine. I would

be reluctant to recommend candidates for lower federal courts who expressed an eagerness to expand the doctrine in the absence of clear guidance from the Supreme

Court.

Question: Why did you oppose against Judge Paez?

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Answer: I was concerned by the comment from the ACLU, calling Judge Paez’s

nomination, ‘‘a welcome change after all the pro-law enforcement people we’ve seen

appointed to the state and federal courts.’’ I was also concerned about public comments he made regarding California ballot initiatives while he was sitting as a federal district judge because the constitutionality of the initiative might have come before him. I was particularly concerned in light of the fact that voter initiatives were

a substantial issue in the Ninth Circuit at the time and because the Ninth Circuit

has had a consistently higher reversal rate before the U.S. Supreme Court than any

of her sister circuits.

Question: Why did you oppose Judge Dyk?

Answer: Mr. Dyk’s nomination was a very difficult one for me, because he had extremely strong credentials. However, he had publicly expressed a view of statutory

construction that advocated disregarding clear statutory text in favor of looking for

the ‘‘basic purpose’’ of the statute. He was appointed to a court that has a special

and exclusive responsibility to interpret certain statutory schemes subject only to

Supreme Court review, which is infrequent because the Federal Circuit’s exclusive

jurisdiction precludes the possibility of circuit splits, one of the major factors applied

by the Supreme Court in granting certiorari.

Question: You voted against Judge Lynch? Why?

Answer: Mr. Lynch had authored articles regarding constitutional interpretation

that rejected the doctrine of original intent and cast the role of the federal judge

as one who was free to effect political change without voter accountability. Based

on these statements and my review of the totality of his record, I did not favor appointing to him to a lifetime tenure on the federal bench.

Question: The Boston Globe reported on January 15, 2001 that in 1995, ‘‘Ashcroft

killed the looming nomination of Alex Bartlett, an African-American, surprising

Abner Mikva, a former judge and then President Clinton’s counsel.’’ According to the

article, Judge Mikva called you up and asked you why, and you said, ‘‘I just don’t

like him. He did something I don’t like.’’ Judge Mikva then asked if there was an

ethical problem, and you said, ‘‘No. I just don’t like him.’’ Please comment on the

accuracy of this conversation as reported by the Boston Globe. Did you oppose the

‘‘looming nomination’’ of Alex Bartlett, and if so, why?

Answer: Alex Bartlett is not an African-American. Bartlett was never nominated

by President Clinton. I made it a practice while a member of the U.S. Senate not

to comment on individuals who were never nominated.

Question: Please provide the details of all contacts by you or your staff with law

enforcement regarding the nomination of Judge Ronnie White. Describe when it occurred, who initiated the contact, and all that was communicated.

Answer: During my tenure in the Senate, my staff kept in regular contact with

various constituents in Missouri, including especially law enforcement professionals.

Such contact was ongoing, and part of the regular process of trying to represent well

the people of Missouri. In the case of Judge White, a great many individuals in law

enforcement expressed grave concerns to my office over his nomination, and those

concerns were a significant factor in my decision to oppose his confirmation.

Question: In light of the Edmond decision of the United States Supreme court, do

you think it was fair for you to have been and remain critical of Judge White’s dissent in Damask?

Answer: My understanding is that the Edmond case deals with ‘‘suspicionless’’ or

blanket drug checkpoints. It is inapplicable to the facts of Damask, where the police

had created a checkpoint designed to stop only those who behaved in a way to justify individualized suspicion.

Question: In your questioning of Judge White at his confirmation hearing you

made reference to his actions as a State legislator. Did you accept Judge White’s

explanation of what happened at the markup you inquired about? Did that matter

figure in your decision to oppose Judge White? Did you discuss that matter with

any other Senators, and if so, what did you say about it?

Answer: I opposed Judge White on the basis of his record of dissents in criminal,

and in particular death penalty cases, and because of the level of law enforcement

opposition to his nomination. I discussed these factors with other Senators.

Question: Other than the law enforcement letters that you circulated with your

Dear Colleague letter to Republican Senators the day of the Senate vote, did any

other individual, group or organization contact you or your office and urge you to

oppose or support the nomination of Judge Ronnie White? If so, who, when and

based on what consideration? Did any such contacts affect your decision to oppose

Judge White?

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Answer: I was contacted by numerous individuals who expressed views on Judge

White’s nomination. Much of the correspondence from law enforcement organizations and individuals has been submitted for the record. It is my understanding that

my office also received calls, emails and other correspondence from a variety of my

constituents dealing with Judge White’s record in criminal cases and his qualifications for the federal bench.

Question: Did any issue having to do with reproductive rights or restrictions on

a woman’s right to choose figure in your decision to oppose Judge White?

Answer: During the time Judge White’s nomination was pending, a number of my

constituents in Missouri brought his record on this issue to my attention, but it was

not a significant factor in my decision to oppose his confirmation. Indeed, I supported 218 out of 230 Clinton judicial nominees, most of whom, I assume, did not

share my views on this issue.

Question: Did any political considerations figure into your decision to oppose

Judge White?

Answer: It occurred to me that it might be politically unpopular to oppose Judge

White. Nevertheless, I concluded that in light of the level of law enforcement opposition to his nomination and his record of dissents, I could not support his nomination.

Question: Senator Kyl stated at the hearings what he recalled you said in the Republican caucus meeting on October 5, 1999, before the Senate voted on Judge Ronnie White’s nomination. What do you recall communicating at that time to other

Senators?

Answer: I recall explaining the reasons why I opposed his nomination at that

meeting, and handing out some written material supporting my reasoning.

Question: While a Senator what were your positions on the nominations of Bonnie

Campbell, James Duffy, Barry Goode, Roger Gregory, Kathleen McCree Lewis,

Enrique Moreno, Judge Helene White, Judge James Wynn, Jr. and H. Alston Johnson?

Answer: During my six years in the Senate, I voted for more than 1600 Clinton

nominees. I do not recall what position, if any, I took on these specific nominees.

ROLE AS ATTORNEY GENERAL

Question: As Attorney General, how would you choose your law enforcement priorities?

Answer: As Attorney General I would set my law enforcement priorities in consultation with the expert staff of the Department. I would also consult with law enforcement and Members of this Committee. Although it is impossible to assess all

my priorities at this juncture, I can stress, as I did at the Committee’s hearings,

that among my very top priorities would be targeting racial profiling and prosecuting gun crimes.

Question: If confirmed, would you recommend and approve of the nomination of

federal judiciary candidates who have taken pro-choice positions or indicated their

support for Roe v. Wade? Would you recommend or approve the nomination of candidates who were personally opposed to the death penalty, provided that they assured you that they would enforce the law? Would you recommend or approve the

nomination of gay men and lesbians who had demonstrated competence and integrity?

Answer: As President Bush has made clear, he will have no litmus test for judicial

nominations. As Attorney General, I will fully support the President’s standard, and

will not employ any litmus tests in carrying out any role I might have in those

nominations.

Question: As Attorney General, would you make such positions equally open to

people of all races, religions, genders, sexual orientations, and marital statuses?

Yes.

Question: Would the applicant’s position on the death penalty be considered in

connection with decisions on appointments to senior positions within the Department of Justice?

Answer: An applicant’s position on this issue could be relevant if his record reflected an unwillingness to enforce laws which the applicant personally opposes.

Would whether the applicant had exercised her constitutional right to an abortion

or had a strong personal feeling on the issue of abortion be considered during hiring,

promotion and appointments at the Department?

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A woman’s personal health choices are not relevant to employment in the U.S.

government, and, as Attorney General, I will not employ a litmus test for hiring,

promotion, or appointments at the Department of Justice.

Question: Would you advise the President to review each U.S. Attorney on a caseby-case basis and to implement an orderly transition to new appointees? Do you anticipate that some U.S. Attorneys who are performing effectively would be asked to

serve out the balance of their terms in office?

Answer: When he nominated me as Attorney General, the President asked me to

give all advice to him and to him alone, and that is a commitment I believe I should

honor. I am not aware of any final decision by the President regarding the retention

of U.S. Attorneys. I do believe that U.S. Attorneys are critical to maintaining firm

and uniform law enforcement across the U.S. and that the U.S. Attorneys offices

should remain consistent and non-political.

Question: You testified on Wednesday that ‘‘to participate in the development of

the law is not to violate your oath, as long as you participate in the development

of the law in accordance with the opportunities expressed.’’ Would it be fair to say

that, if confirmed, you will continue to ‘‘participate in the development of the law’’ in a manner that further restricts the constitutional rights of women recognized in

Roe and its progeny?

Answer: As Attorney General, my job will be to enforce the law, and, as I explained at the hearing, I accept Roe and Casey as settled law of the land. The Supreme Court has made perfectly clear that there is a constitutional right to abortion.

Question: What did you mean in your 1997 speech ‘‘On Judicial Despotism’’ when

you said: ‘‘We should enlist the American people in an effort to rein in an out-ofcontrol Court.’’ Answer: Our Constitution begins with the words ‘‘We the People’’ because it is

only through the consent of the people that our government derives its authority.

Judges are sworn to uphold the Constitution, and, when they implement their own

personal policy preferences instead of applying the law, they are subverting their

Constitutional role. It is for this reason that the appointment of judges is given to

the President, with the advice and consent of the Senate—so that the appointing

and confirming bodies remain democratically accountable to the people.

REPRODUCTIVE RIGHTS:

Question: You testified that you accepted Roe and Casey as ‘‘the settled law of the

land.’’ When in your mind did these cases become ‘‘settled’’? Please be specific.

Answer: The cases have become settled through the passage of time and reaffirmation by the Supreme Court. As I observed at the hearing, the Supreme court’s decisions on this have been multiple, recent, and emphatic.

Question: Please specify the legal principles that you believe were ‘‘settled’’ by Roe

and Casey. Answer: Roe and Casey make plain that women have a constitutional right to

abortion.

Question: Did you consider Roe and Casey to be settled law when, as a Senator,

you introduced S. 2135, the Human Life Act of 1998?

Answer: Yes, that is why I simultaneously supported a proposed constitutional

amendment to the same effect. The proposed constitutional amendment would have

been unnecessary if Roe and Casey were not settled law.

Question: Is S.2135 unconstitutional under Roe and Casey?

Answer: As introduced, S.2135 is not constitutional under Roe and Casey. Nonetheless, I thought that S.2135 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. In my view, it is not uncommon for a legislator to introduce legislation

that could not pass as initially proposed in order to begin a process that could lead

to the passage of legislation.

Question: In 1991, when you were Governor of Missouri, the Missouri Legislature

considered a bill known as Senate Bill 339, which would have made it a felony offense to perform a so-called ‘‘non-therapeutic’’ abortions at any time after conception. Did you support Senate Bill 339? Had it passed, would you have signed it into

law? Would you now agree that Senate Bill 339 was unconstitutional under existing

Supreme Court precedent?

Answer: While I have no specific recollection of SB339, press reports at the time

indicated that a prominent Democratic state senator, Senator John Scott, introduced

SB339 in 1991. These press reports also suggest that the bill died in the Senate

committee, and never was considered by the full legislature.

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The purpose of this bill was to list under the definition of ‘‘non-therapeutic abortions’’ 18 different reasons prohibiting certain abortions under state law. Such prohibited purposes included: race or sex selection of the unborn child, cosmetic reasons, avoidance of perceived damage to reputation, failure or non-use of birth control, prevention of a child from being adopted. This bill did not prevent abortions

attributable to rape, incest or a ‘‘bona fide, diagnosed health problem’’, i.e., reasons

considered ‘‘therapeutic’’ and not otherwise prohibited under the bill. This bill was

one of several bills presented during the 1991 legislative session.

Although I have no specific recollection of SB 339, it appears from press reports

that representatives from my office may have expressed interest in seeing the bill

passed out of committee.

While 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 because bills

changed dramatically throughout the legislative process. Therefore, I have no opinion on whether I would have signed the bill.

Interestingly, in a newspaper end-of-session review of the 1991 legislature session

entitled ‘‘Anti-Abortion Proposals Faded Quietly in Session’’, the following appeared

‘‘But the governor never threw his weight behind any particular bill. Asked Friday

night why he thought the legislature resisted attempts to further restrict abortion,

Ashcroft responded simply, I don’t know.’’

Regarding the bill’s constitutionality, I have not taken the time to apply constitutional principles or case law of the time to the bill then under consideration. Under

the recent Casey and Carhart decisions, its constitutionality might clearly be questioned.

Question: Do you believe that there is such a thing as constitutional right to privacy—not specifying if, for example, such a right includes the right to terminate a

pregnancy—but, more broadly, is there a constitutionally-protected right to privacy?

If so, which provision of the Constitution is the source of that right to privacy?

Answer: I believe in the right to privacy. The Supreme Court has held that there

is a constitutional right to privacy, that finds its genesis in the First, Fourth, Fifth,

Ninth, and Fourteenth Amendments. I also believe that the Third Amendment embodies a constitutional right to privacy.

Question: In November 1998, in response to the murder of Dr. Barnett Slepian

and other attacks on reproductive health care providers, Attorney General Reno established the National Task Force on Violence Against Health Care Providers. Will

you commit to the continuation of this Task Force?

Answer: Yes.

ANTITRUST

Question: I have written the Justice Department and the Attorneys General of

each of the six New England states regarding my concerns about the rapidly increasing concentration in the dairy processing industry. I am most concerned about

Suiza Foods, which is headquartered in Texas, which controls almost 70% of the

fluid milk processing and distribution in New England. Just last week, a report prepared by Dr. Mary Hendrickson and Dr. William Heffernan of the University of Missouri confirmed my fears. They concluded that dramatic changes have occurred in

the past three or four years in the dairy sector as a result of consolidation and

globalization and specifically mentioned Suiza Foods.If you are confirmed as Attorney General will you vigorously look into this matter?

Answer: I am concerned about excessive concentration in any industry when that

concentration is the result of anticompetitive actions. As you know, the antitrust

laws contain specific provisions designed to ensure that farmers can compete effectively. If confirmed, I would look forward to looking into this matter and ensuring

that both the antitrust laws and the interests of dairy farmers are vindicated.

Question: Are you satisfied with thrust of the current antitrust laws or do you intend to recommend that the new Administration review these laws with the intent

of proposing some significant changes?

Answer: The basic structure of the antitrust laws has been in place for decades.

Although there may be a need for targeted reform, I do not personally perceive a

need for a comprehensive overall of the antitrust laws. Before providing any recommendations concerning any concrete proposal, I would certainly consult with the

President, the Assistant Attorney General for Antitrust and Members of this Committee, as appropriate.

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CAPITAL PUNISHMENT

Question: As Attorney General, what measures would you take to reduce the risk

of executing innocent people?

Answer: The American justice system is predicated upon the principle that the

law should protect the innocent, providing equal justice for all. There is no greater

injustice than to execute an innocent person. I will work with the President and the

Congress to help ensure that no innocent person is executed in America and that

capital defendants have access to DNA technology to confirm guilt or innocence.

Question: Given the high rate of error in capital cases, would you as Attorney

General advocate any changes in the restrictions on availability of federal habeas

corpus relief for death row inmates?

Answer: I believe that there is no greater injustice than to execute an innocent

person, and I will work with the President and the Congress to help insure a justice

system that protects the rights of all capital defendants.

Question: Last year, Congress passed a Sense of Congress resolution regarding

post-conviction DNA testing and competent counsel. Specifically, Congress declared

that it should condition forensic science-related grants to States on the States’

agreement to ensure post-conviction DNA testing in appropriate cases. Congress

also declared that it should work with the States to improve the quality of legal representation in capital cases through the establishment of standards. Do you agree

with this bipartisan Sense of Congress resolution, and as Attorney General, would

you work with me to ensure that post-conviction DNA testing and competent legal

representation are available in all States?

Answer: I believe that there is no greater injustice than to execute an innocent

person. The Sixth Amendment provides constitutional protections for the right to

counsel for criminal defendants, a right that is particularly precious in capital cases.

I will work with the President and the Congress to help ensure that no innocent

person is executed in America and that capital defendants have access to DNA technology to confirm guilt or innocence.

Question: As Attorney General, would you be willing to work with me to pass the

Innocence Protection Act or similar legislation? Our bill would establish standards

for ensuring that lawyers in state capital cases are experienced and adequately

paid. Do you support the establishment of such standards? Would you agree that

a person accused of any crime who cannot afford a lawyer should be provided competent counsel, and that the federal government should ensure that States take the

necessary steps to do this?

Answer: I believe that there is no greater injustice than to execute an innocent

person. The Sixth Amendment provides constitutional protections for the right to

counsel for criminal defendants, a right that is particularly precious in capital cases.

I will work with the President and the Congress to help ensure that no innocent

person is executed in America and that capital defendants have access to DNA technology to confirm guilt or innocence.

Question: Would you agree with me that the execution of an innocent person is

unconstitutional?

Answer: I think it would be wrong and unconscionable, and, in all likelihood, unconstitutional as well, as the Supreme Court has itself suggested in Herrera v. Collins.

Question: As Governor of Missouri, when you reviewed requests for clemency by

a death row inmate, what procedures did you have in place to assess the inmate’s

guilt or innocence?

Answer: Each request for clemency was referred to the Missouri Board of Probation and Parole, a full time five member board of experts for a full review. Upon

receiving the recommendation of the Board, the Governor’s legal counsel reviewed

the request and the recommendation with the Governor for decision.

Question: You have written that you support capital punishment because it ‘‘saves

lives’’ by deterring murders. Do you have any empirical basis for your belief?

Answer: It is my understanding that there are numerous empirical studies outlining the correlation between capital punishment and deterrence. However, my beliefs

regarding capital punishment would be irrelevant to how I would perform my job

as Attorney General; federal law provides for capital punishment, and as Attorney

General it would be my responsibility to enforce that law fairly and conscientiously.

Question: During the campaign, President-elect Bush said: ‘‘Any time DNA evidence, in the context of all the evidence, is deemed to be relevant in the guilt or

innocence of a person on Death Row, I believe we need to use it.’’ Do you agree that

DNA evidence should be available to death row inmates any time that it is deemed

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to be relevant to the issue of guilt or innocence? Would you agree that DNA evidence should also be available to other inmates, such as inmates serving life sentences?

Answer: I believe DNA evidence has great promise for making our criminal justice

system fairer and more accurate, and would be happy to work with the President

and the Congress to expand its availability to prosecutors and criminal defendants,

especially in capital cases.

CONSTITUTION

Question: Given the number of constitutional amendments you have supported,

what assurances can you give us that all your energies will be concentrated on upholding the Constitution rather than implementing your views of how it might be

improved?

Answer: I joined my colleagues in a number of proposed constitutional amendments. However, those efforts reflect a fundamental respect for the Constitution and

for the mechanism that that document establishes for altering the text. Indeed, it

is precisely because I do not believe that courts should alter the Constitution that,

in the role of legislator, I joined those efforts to formally amend it. As Attorney General, my job would be to enforce the law, not to amend it.

Question: In reaffirming Miranda, the Supreme Court found that a statute that

Congress had passed in 1968 to overrule Miranda—18 U.S.C. 3501—was unconstitutional. Will you abide by the court’s decision and decline any reliance on 18 U.S.C.

3501? Would you support repeal of 18 U.S.C.?

Answer: I will fully enforce the law and abide by the court’s decision in Dickerson v. United States. Though I suspect the question contained a typographical error, as

Attorney General I would firmly oppose the repeal of the entirety of Title 18, which

comprises the federal criminal code. Whether or not the Congress chooses to formally repeal Title 18, section 3501, as Attorney General, I will enforce the law as

it stands post-Dickerson.

SENTENCING

Question: Under what circumstances do you support using drug treatment as an

alternative to prison sentences?

Answer: I support the President’s proposals for a comprehensive approach to illegal drugs, including expanded treatment, increased use of drug courts, and maintenance of drug-free prisons.

Question: Do you believe there is any inconsistency between Congress’ creation of

the Sentencing Commission and Congress’ continued willingness to impose mandatory minimums which take away the Sentencing Commission’s discretion? How

much discretion do you believe the Sentencing Commission should be given to set

criminal penalties for offenses?

Answer: The Sentencing Commission is a creature of Congress’s creation, and its

authority is subject to subsequent congressional enactments. It is not inconsistent

for the Congress to enact mandatory minimum sentences while relying on the Commission to set sentencing ranges above such minimums.

ELECTION 2000/VOTING RIGHTS

Question: You are familiar with the Supreme court’s December 9 stay and its December 12 per curiam decision in the recent case of Bush v. Gore—you made reference to this case in defending your actions as Governor when you vetoed the voter

registration and education legislation in Missouri. The Supreme Court acknowledged that ‘‘the problem of equal protection in election processes generally presents

many complexities.’’ Where does the ‘‘logic’’ of the Court’s equal protection holding

go in your view- that is, if it was a violation of equal protection to evaluate ballots

within Florida as ordered by the Florida Supreme Court in accordance with the

standards set by the Florida legislature and under the supervision of a Florida Circuit Court Judge, does that suggest that the constitutional right to equal protection

might require national standards for voting and the counting of votes?

Answer: If confirmed as Attorney General, I will fully and vigorously enforce the

federal voting rights laws, because voting is fundamental to other rights in America.

In so doing, I will examine the Supreme court’s caselaw concerning voting rights,

to ensure faithfulness to binding law. And, I will enforce whatever new voting rights

laws the Congress sees fit to pass in light of Bush v. Gore.

Question: Do you consider that decision of the United States Supreme Court to

be an example of thoughtful and prudent judicial decisionmaking, judicial activism,

or what you have called judicial despotism?

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Answer: As Attorney General, it would not be my role to adjudicate the thoughtfulness or prudence of Supreme Court decisions. As Attorney General, I will follow

the law.

Question: There is a great deal of bad feeling and division in the wake of the presidential election contest. Many feel that African-Americans in large numbers were

disenfranchised in Florida, for example. What do you say to this Committee and to

the American people about actions you would take as Attorney General to overcome

that division and remedy the problems that led to African-American voters’ names

being improperly purged from eligible voter lists, their registrations not being processed, the precincts in which they voted being inadequately staffed and having outmoded machinery and the other sources of outrage and concern in the aftermath of

the election?

Answer: Voting is a fundamental civil right. If fortunate enough to be confirmed

as Attorney General, I will work to aggressively and vigilantly enforce federal voting

rights laws. It will be a top priority of a Bush Department of Justice, part of what

I would hope would be its legacy.

Question: The Justice Department is charged with administering Sections 2 and

5 of the Voting Rights Act. One of the most important questions facing the Justice

Department is whether it should use adjusted or unadjusted census data in administering the preclearance provisions of Section 5 and urge courts to do the same

under Section 2 of the Voting Rights Act. The U.S. Supreme Court has never questioned the constitutionality of statistical sampling for purposes of administering the

Voting Rights Act. Do you believe that the Justice Department should endorse the

use of sampled data?

Answer: I have not had the opportunity to examine this legal question in depth,

but any answer I might give would depend solely on a fair reading of the relevant

law and Supreme Court cases. Of course, Congress has the ultimate authority in

determining the proper way for federal statutes to be administered.

ENVIRONMENT

Question: The Clean Air Act, Clean Water Act and other environmental laws contain citizen suit provisions which allow citizens to bring enforcement actions, claims

for injunctive relief and civil penalties, against violators when the federal and state

government have failed to do so. The Justice Department has been supportive of citizen suits in the past. Do you support the citizen suit provisions in these laws as

a mechanism for ensuring compliance with our environmental laws and do you intend to support them as Attorney General?

Answer: Questions concerning the validity of laws should be answered only in the

context of a specific case or controversy raising the issue. While it would be imprudent to make a legal determination on the question now, absent a full and thorough

review of the relevant law, my obligation as Attorney General will be to defend the

constitutionality of duly-enacted federal law, whenever a good faith and conscientious basis exists for doing so.

Question: Would you agree that the federal government has the right and the obligation to pursue enforcement of environmental laws to recover the economic benefit

that a company has achieved by violating environmental laws, punish a violator for

delayed compliance with federal environmental statutes and in order to deter future

violations?

Answer: Yes.

Question: Would you agree that enforcement of our federal environmental laws,

and recovery of the economic benefit obtained by polluters for their violations, is

critical to ensuring a level playing field between the many industries that comply

with the law and those that seek to cut corners and gain economic advantage by

failing to comply?

Answer: Yes, to the extent the law so requires.

Question: Do you agree that the economic benefit a company reaps via non-compliance with environmental statutes should be the minimum penalty imposed in enforcement actions in order to level the playing field between violators and those

businesses that comply with clean air, water and other environmental laws?

Answer: Yes, to the extent the law so requires.

Question: In situations where a violator with facilities scattered across the country

is causing problems in more than one state, for example, when the steel manufacturer Nucor failed to control the amount of pollution released from its factories in

seven states, do you believe the Justice Department should pursue a national enforcement action?

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Answer: I believe the federal environmental laws should be fully and vigorously

enforced. With respect to any particular potential enforcement actions, such as

against the steel manufacturer referenced above, it would be inappropriate for me

to comment at this time.

Question: EPA’s national enforcement policy is designed to give states the first opportunity to enforce under their authorized or approved programs, but in some circumstances, EPA, with the assistance of the Department of Justice, will file a federal enforcement action after the conclusion of a formal state enforcement action for

the same violations that arose out of the same nucleus of operative facts when necessary to protect human health and the environment, to appropriately address a

major repeat violator, and/or to recover a significant economic benefit. Do you support the practice of ‘‘overfiling’’ under these circumstances, and if not, why not?

Answer: I am not familiar with the details of how such enforcement actions are

conducted, and will have to wait until I can consult at length with the professional

staff in the Department before I can have an informed opinion.

Question: In 1999, EPA and the Justice Department entered into a series of

ground-breaking consent decrees with the seven largest manufacturers of diesel engines, requiring the companies to take several steps to reduce pollution, pay substantial air pollution fines, and produce engines which met certain emission standards. Despite your record of aggressively questioning the fundamental regulatory

structure set forth in major environmental laws, such as your co-sponsorship of the

controversial S. 981, the ‘‘Regulatory Improvement Act of 1998,’’ if confirmed, would

you enforce the 1999 consent decrees?

Answer: I believe the federal environmental laws should be fully and vigorously

enforced. With respect to any particular pending maters, such as against the consent decrees referenced above, it would be inappropriate for me to comment at this

time.

FEDERALISM & STATES’ RIGHTS

Question: In June 1999, the Supreme Court issued two decisions in Florida Prepaid and College Savings Bank that effectively immunized the States from damages

liability for violations of intellectual property rights. Would you support my legislative effort to restore effective federal protection for intellectual property as against

the States, in a manner, that avoids any conflict with the Constitution as interpreted by the US Supreme Court?

Answer: Although I have not studied this issue closely, any resolution of it must

involve a delicate balancing of the needs to protect intellectual property with the

constitutional mandate of federalism. I look forward to working with the Committee

to assist in ensuring that intellectual property is fully protected in the modern age,

in a manner consistent with the U.S. Constitution.

Question: During your tenure as Governor and in the Senate, you advocated that

reproductive rights and civil rights issues should be governed at the state level. In

fact, you are quoted in a 1999 interview in the Southern Partisan magazine as saying: ‘‘I believe the Tenth Amendment, which was the capstone of our Bill of Rights,

does appropriately reserve powers to the states, and it is time for Washington, DC

to rediscover this founding principle....’’ In the Senate, you have consistently

sponsored, cosponsored and voted for ‘‘tort reform’’ legislation that would override

state tort law and limit the jurisdiction of state courts to decide questions of state

law. How do you reconcile your support for federal preemption of state law and restrictions on state courts when it comes to liability protection for businesses but not

when it comes to protecting civil rights or reproductive rights for ordinary Americans?

Answer: Federalism is an important constitutional principle which should be fully

honored. The Constitution also explicitly provides, however, that Congress can ‘‘regulate Commerce . . . among the several States,’’ and many modern tort judgments

unquestionably have national economic impact. As Attorney General, I will support

the President’s proposals for comprehensive civil justice reform, fully respectful of

the constitutional dictates of federalism.

Question: You are a strong advocate of the Tenth Amendment as protecting liberty

by preserving States’ rights against the Federal Government. The Ninth Amendment also protects liberty, by preserving individual rights against the Government.

What is your understanding of the Ninth Amendment?

Answer: There have been few opinions of the Supreme Court interpreting the

Ninth Amendment, but its plain text adverts to the ‘‘rights . . . retained by the

people.’’ I believe it is incumbent upon the Department of Justice to enforce the law

and protect the constitutional rights of all Americans.

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FORFEITURE

Question: The Justice Department’s ‘‘Equitable Sharing’’ program allows the Attorney General to share federally forfeited property with participating state and

local law enforcement agencies, and has proven controversial with State legislatures, which are concerned that state law enforcement uses the program to bypass

state laws that require seizures to be used for other purposes, such as education.

Would you agree that by allowing state authorities to evade their own state laws,

the Equitable Sharing program creates an intolerable intrusion on state sovereignty? Would you work with me to correct this problem, by ensuring that property transferred to a state or local law enforcement agency under the Equitable

Sharing program is subject to any requirement of state law that limits the use or

disposition of forfeited property?

Answer: Although I have not studied this problem closely, I would be happy to

work with you to address any problems in the program in a way that respects both

the needs of law enforcement and the constitutional demands of state sovereignty.

Question: Under Article IX of the Missouri Constitution, the proceeds of forfeitures are supposed to be distributed to local school boards. Yet even after a 1990

Missouri Supreme Court decision found their actions to be in violation of the state

Constitution, Missouri law enforcement agencies would end-run the constitutional

requirement by bringing seizures to a federal agency for ‘‘adoption.’’ Money returned

through the ‘‘Equitable Sharing’’ program would go directly to the Missouri law enforcement agency. As Governor, did you ever indicate that you would ‘‘look the other

way’’ should the Missouri police ignore the state Constitution and Supreme Court

decision requiring asset forfeiture moneys to go to education? Did you ever take

steps to stop this practice, and if so, what steps did you take?

Answer: I am unfamiliar with a number of the facts or assertions embedded in

the question, but I would not suggest to any law enforcement officer or agency that

I would ‘‘look the other way’’ should they act contrary to the Missouri Constitution.

I would expect the Missouri State Highway Patrol to act in accordance with any advice provided by the Missouri Attorney General’s office pursuant to a state Supreme

Court decision on this subject. Missouri local law enforcement agencies are not administratively responsible to state officials or agencies, but they should act in accordance with legal advice provided by a county prosecutor or municipal counsel.

FREEDOM OF INFORMATION ACT

Question: The Justice Department provides agency-wide guidance on implementing the Freedom of Information Act (FOIA). Janet Reno made significant reforms

in implementing this Act by calling upon agencies to exercise discretion where possible and to grant requests unless disclosure would cause actual harm and by making FOIA implementation part of every employee’s job performance evaluation.

Would you (a) consider FOIA enforcement an important part of an Attorney General’s responsibilities; (b) ensure that FOIA activities get adequate budget allocation

at Justice and encourage adequate funds for enforcement of FOIA at other agencies;

(c) support and personally endorse government-wide training in FOIA responsibilities; and (d) advocate sanctions against government employees who deliberately

withhold records from FOIA processing?

Answer: Appropriate public access to governmental records is an important check

on arbitrary government action. If I am fortunate enough to be confirmed as Attorney General, I will fully and faithfully enforce the Freedom of Information Act and

ensure that the Department of Justice does the same.

CIVIL RIGHTS

Question: As Attorney General, would sexual orientation be a factor in your employment decisions?

Answer: No.

Question: As a Senator, you voted against the Employment Non-Discrimination

Act, a bill that would have prohibited employment discrimination against gays or

lesbians and that failed to pass by a single vote. Do you believe that the federal

government should regulate relations between employers and employees to prevent

discrimination on any grounds, and if so, can you explain why you believe that discrimination based on sexual orientation should not be one of those grounds?

Answer: The federal government plainly has an important role in preventing discrimination, and it is the Congress’s prerogative to determine the scope of those protections. As Attorney General, I will fully and faithfully enforce all civil rights laws

passed by Congress and signed by the President.

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GUN SAFETY

Question: You have referred to Jim Brady, the press secretary for Ronald Reagan

who was nearly killed in John Hinckley’s assassination attempt, as ‘‘the leading

enemy’’ and ‘‘the number one enemy’’ of gun owners. Do you regret using such intemperate language to describe a person with whom you have policy differences?

Answer: I have deep respect for Jim Brady both as a public servant and for the

incredible trauma that he has endured as a result of his faithful service to the Nation. I have, however, disagreed with some of the policy prescriptions that Mr.

Brady has advocated. However relevant my policy views may have been to my role

as a legislator, as Attorney General, I will fully and faithfully enforce the federal

gun laws.

Question: Do you believe that existing gun laws are not strictly enforced and, if

confirmed, how would strengthen enforcement of existing gun laws and prioritize

this issue?

Answer: I believe that there is room for substantial improvement with respect to

enforcement of the current gun laws. The President has explained that he wishes

to give prosecutors the resources they need to aggressively enforce our gun laws and

provide more funding for aggressive fun law enforcement programs such as Texas

Exile and Project Exile in Richmond, Virginia. I will fully support the President’s

agenda in this area.

Question: In September 1998, when you chaired a subcommittee hearing on the

intent of the Second Amendment, you stated: ‘‘I believe it is time that we once again

recognize the Second Amendment for what it is. It is a protection of individual liberty.’’ Given your view of the Second Amendment, do you believe that all gun control

laws are unconstitutional? As Attorney General, would you urge the Supreme Court

to accept your interpretation of the Second Amendment?

Answer: I do not believe that the Second Amendment prohibits common-sense gun

control measures, and if confirmed, as Attorney General I will vigorously defend federal gun control statutes passed by Congress whenever there is a good-faith and

conscientious basis for doing so.

Question: In the case of United States v. Emerson, a criminal defendant is challenging his indictment for possessing a gun while under a domestic violence restraining order. He argues that the federal law violates the Constitution. The Justice Department is currently defending the constitutionality of that federal law on

appeal before the Fifth Circuit. Will you commit to continuing the defense of that

law?

Answer: I am not familiar with the details of this case. As a general matter, however, I will defend the constitutionality of any Act of Congress that does not implicate executive authority and for which a reasonable defense can be mounted. Although I have not reviewed the details of this case and my final determination

would require that review and a consultation with the Department of Justice officials handling the case, I have no reason to believe that the Department would not

continue to defend the constitutionality of the Act of Congress at issue in this litigation.

Question: What current gun control restrictions would you like to see relaxed or

eliminated? As Attorney General, would you use your influence to encourage such

changes?

Answer: The President has explained that he would support legislation to allow

active and retired law enforcement officers to carry concealed weapons. If confirmed,

I will fully support the President’s position on this issue.

IMMIGRATION

Question: Are there any aspects of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act that you would support changing? Please explain.

Answer: I have not examined the provisions of the 1996 legislation closely, but am

aware that many people have raised a number of potential issues resulting from

that legislation. If confirmed, I will study these issues carefully and work with the

President and Congress to develop any reforms that might be needed to make the

immigration laws fairer, more effective, and more humane.

Question: Would you support giving veterans of our armed forces an individualized hearing before being deported for relatively minor criminal offenses? Would you

support giving other long-term residents of the United States individualized hearings before they are deported for similar offenses?

Answer: I believe that every individual appearing before our courts of law should

be accorded the full protections of Due Process.

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Question: Under the current expedited removal system, also adopted in 1996,

there is strong evidence that aliens fleeing religious, political, or other forms of persecution may be summarily returned to their native countries without ever even appearing before an immigration judge. As Attorney General, would you be willing to

conduct a review of this program?

Answer: Yes.

IMPEACHMENT

Question: In September 1998, you issued a statement calling upon Democratic

candidates for office not to accept fundraising assistance from President Clinton,

saying that ‘‘[t]o entangle campaign fund-raising with impeachment is bad for public

confidence.’’ You also said: ‘‘In an impeachment proceeding, the constitutional role

of Senators is to sit as jurors on impeachment articles voted by the House of Representatives. The public must have high confidence in the fairness of the proceedings.’’ You issued the statement despite the fact that only a month before, your Spirit of America PAC had rented its donor list to the Paula Jones Legal Defense Fund,

thus profiting from the very woman whose lawsuit gave rise to impeachment proceedings. Then, your PAC proceeded to rent your donor list to the Linda Tripp Legal

Defense Fund on February 9, 1999, three days before your vote to convict President

Clinton on both impeachment counts. Your PAC received additional payments from

the Tripp fund in April and May of 1999.

(a) Do you believe that renting the lists to figures with such a vested interest in

the conviction of President Clinton was appropriate given your status as a juror?

(b) Do you believe that renting your PAC’s donor lists to these two legal defense

funds while impeachment proceedings were in progress was ‘‘bad for public confidence? ’’

Answer: These donor lists were rented without my knowledge or approval. Once

I became aware that the list had been rented to these organizations, I directed that

the lists no longer be rented to these organizations.

INTERNATIONAL CRIMINAL COURT:

Question: Putting aside the merits of the International Criminal Court, or whether the United States should ratify the treaty, on what did you base your conclusion

in your 1998 Southern Partisan magazine interview that the treaty establishing the

International Criminal Court ‘‘would make withholding of an abortion a crime

against humanity,’’ when the treaty defines ‘‘forced pregnancy’’ to mean ‘‘the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the

ethnic composition of any population or carrying out other grave violations of international law’’ and excludes ‘‘national laws relating to pregnancy’’?

Answer: I do not recall the specific basis for that statement. As part of my duties

on the Senate Foreign Relations Committee, I had heard concerns that despite efforts to define the term, the concept of a ‘‘forced pregnancy’’ had sufficient elasticity

to prompt legitimate concerns about whether such a prohibition should be included

in a treaty, which would become the law of the land. Whatever my views as a legislator, however, I will enforce the law of land.

LEGAL SERVICES CORPORATION

Question: In 1995, you voted in favor of a motion offered by Senator Phil Gramm

to eliminate the Legal Services Corporation, which provides legal assistance for the

poor.

(a) Do you still believe that the Legal Services Corporation should be eliminated?

(b) As Attorney General, would you encourage or assist in any way efforts to

eliminate or reduce funding for the Legal Services Corporation?

Answer: President Bush has indicated that the Legal Services Corporation should

be maintained, but reformed to re-focus on its original mission of providing legal aid

to those in need. I will support and promote the President’s position on this issue.

DESEGREGATION

Question: The Bush transition team has tried to bolster your record on appointments of minorities while you were Governor and stated that out of 70 judges you

appointed, 11.4 percent were African Americans. But this figure does not include the

51 interim judicial appointments you made as governor. Is that correct?

Answer: There were 70 panels of 3 individuals submitted by the appropriate commission for appellate and trial court vacancies presented to me as Governor under

Missouri’s nonpartisan court plan. There was only one African-American candidate

who was not then or later appointed by me to a current or subsequent judgeship.

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In effect, 8 out of 9 available minority candidates were appointed from these panels,

including the first African American on the Missouri Court of Appeals and the first

African American woman on the St. Louis County Circuit Court. These appointments are for life, with retention votes every 12 years.

For counties outside of the nonpartisan court plan, 21 judges were appointed to

vacancies until the next election, none of whom were African-American. However,

our research has found no minority members of the Missouri Bar who expressed an

interest in or were available (by virtue of residency) for any of these vacancies for

these out-state judgeships (which must stand for election every 4 years for an Associate Circuit Judge, and 6 years for a Circuit Judge). These appointments are for

as short as 30 days and as long as several years until the next election.

Question: When you ran for governor in 1984, you made political use of the fact

that you were nearly subject to contempt of court from a federal judge, stating ‘‘Ask

Judge Hungate who threatened me with contempt.’’ As U.S. Attorney General,

would you use threats of contempt against the Justice Department for political purposes? Do you believe that as a political leader and sitting Attorney General of Missouri, it was in any way divisive or inappropriate to politicize the desegregation

issue in this fashion? Does it not disturb you then that a federal court said you had

‘‘voluntarily rode the [desegregation litigation] to political prominence’’?

Answer: If confirmed as Attorney General, I would obviously hope to avoid any

threats of contempt, and would not use any legal proceedings for political purposes.

It is not accurate that I ‘‘politicized’’ desegregation in Missouri; to the contrary, I

urged continued fealty to the rule of law in the face of strong political pressure by

other elected officials to do otherwise. Finally, it is not unusual for a court to criticize litigants who appear before it; like other litigants, I take no pleasure from such

criticism.

AFFIRMATIVE ACTION

Question: The United States District Court for the Eastern District of Michigan

ruled in a case challenging the use of affirmative action by the University of Michigan that ‘‘diversity constitutes a compelling governmental interest in the context of

higher education justifying the use of race as one factor in the admissions process.’’

(2000 WL 1827468).

The United States filed a brief on behalf of the University of Michigan in this litigation. Do you agree that diversity constitutes a compelling governmental interest

justifying the use of race as a factor in admissions, or would you recommend that

the Bush Administration switch sides and support the plaintiffs in appeal of the

court’s judgment?

Answer: If confirmed as Attorney General, I will firmly oppose racial discrimination in all its forms. It would, however, be imprudent of me to comment on the particulars of the Michigan case without first conducting a full and fair review of the

facts and law surrounding that case. If confirmed, I pledge that no decision will be

made absent such a thorough review.

Question: As Attorney General, would you support the use of Title VI of the Civil

Rights Act to prevent universities and colleges that receive Federal funds from considering race in admissions?

Answer: If confirmed, I commit to you that any decision that I make will be laworiented, not results-oriented. This is true with respect to Title VI, as it is with all

other laws. Thus, I pledge that any decision made with respect to Title VI will me

made only after a full and fair review of that law. Not having had an opportunity

to conduct such review with the benefit of the full learning of the Department of

Justice on this question, I believe that it would be imprudent for me to comment

further on that statute.

Question: In the Bakke case, the Supreme Court allowed universities to consider

race in their admissions processes. Do you consider Bakke to be the law of the land,

which you would be sworn to uphold? Do you consider it settled law?

Answer: The Bakke decision must be viewed in light of the many decisions on related matters that the Supreme Court has handed down in the past two decades.

Of course, the Supreme Court is the ultimate arbiter of constitutionality, and, unless the Court decides otherwise, Bakke remains the law of the land.

Question: Would an Ashcroft Justice Department consider any use of race permissible in the educational context?

Answer: Yes.

Question: At the confirmation hearing for Bill Lann Lee in October 1997, you

asked Mr. Lee about the Supreme court’s decision in Adarand, which held that federal racial classifications must serve a compelling governmental interest, and must

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be narrowly tailored to further that interest. In particular, you asked Mr. Lee

whether, in his opinion, any of the current federal race-conscious programs could

survive the strict scrutiny test of Adarand. Let me ask you a similar question. Are

there any current federal race-conscious programs that you think are not constitutional under Adarand, and if so, would you defend the constitutionality of these programs if you are confirmed as Attorney General?

Answer: It is likely that some federal race-conscious programs are not constitutional under Adarand. Indeed, my recollection is that even Mr. Lee identified one

such program. That being said, it is the longstanding policy of the Department of

Justice to defend any federal law for which a reasonable and conscientious defense

can be raised. If confirmed, I will enforce this policy in the area of racial set-asides,

as in all other areas.

Question: What qualities would you advise President-elect Bush to seek in an Assistant Attorney General for Civil Rights? Should that person have direct experience

in the civil rights field? Is it your view that the Assistant Attorney General for Civil

Rights should take the position that all forms of federal preferences based on race

fail Adarand’s strict scrutiny test?

Answer: When he nominated me as Attorney General, the President asked me to

give all advice to him and to him alone, and that is a commitment I believe I should

honor. As a general matter, however, I believe an Assistant Attorney General for

Civil Rights should be a person committed to fully and fairly enforcing the Nation’s

civil rights laws. That person should also, in my view, have some experience in the

field of civil rights, a commitment to the rule of law, and a genuine passion for protecting the rights of the disadvantaged.

Question: As Attorney General, you would be responsible for offering opinions to

all federal departments and agencies concerning the scope of federal law. If confirmed, what advice would you give the Department of Transportation and other

federal offices regarding the use of affirmative action in their employment, contracting, and other activities?

Answer: When he nominated me as Attorney General, the President asked me to

give all advice to him and to him alone, and that is a commitment I believe I should

honor. That same principle should apply to legal opinions delivered to Executive

agencies. As a general matter, however, I believe that any federal affirmative action

program can be assessed only in the context of the facts and circumstances of its

application. If confirmed as Attorney General, I would to defend any federal affirmative action program for which a reasonable and conscientious defense can be raised.

Question: Congress has reauthorized the Disadvantaged Business Enterprise Program since the Adarand decision, adopting the view that it was sufficiently narrowly tailored to survive ‘‘strict scrutiny.’’ You took the view that ‘‘[g]overnment programs which are officially sanctioned and administered, to discriminate against any

American on the basis of that citizen’s race should be ended, starting with [the

DBEP].’’ As Attorney General, would you vigorously defend all federal affirmative

action programs before the Supreme Court and the lower courts? Would you consider instituting lawsuits to attack the constitutionality of state and municipal government affirmative action programs?

Answer: If confirmed as Attorney General, I would adhere to the Department of

Justice’s longstanding policy of defending every federal law for which a reasonable

and conscientious argument can be made. I would apply this policy to affirmative

action programs, as all other programs. With respect to issues related to state and

municipal affirmative action programs, I will review those programs, as all others,

on a case-by-case basis consistent with the law.

Question: In the late 1980s, when you were governor of Missouri, you served on

the Commission on Minority Participation in Education and American Life, yet declined to sign the report, which found that ‘‘in education, employment, income,

health, longevity, and other basic measures of individual and social well-being, gaps

persist—and in some cases are widening—between members of minority groups and

the majority population.’’ At the time, you said that the report’s ‘‘generalizations

about setbacks in progress are overly broad and counterproductive.’’ Did you believe

then that there were gaps in education, employment, income, health, longevity, and

other basic measures of individual and social-well being between minority and nonminority Americans? If so, do you believe there are still such gaps, and as Attorney

General, what steps would you take to address those gaps?

Answer: Yes, such gaps do exist. Indeed, the President has spoken movingly about

the ‘‘soft bigotry of low expectations,’’ and the dual societies it creates. As Attorney

General, I will fully and fairly enforce all federal laws addressing civil rights and

other related issues.

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Question: A spokeswoman for President-elect Bush’s transition has stated that

you believed that the report produced by the Commission on Minority Participation

in Education and American Life ‘‘addressed the plight of some minorities, but it

didn’t address all minorities.’’ Is that why you withheld your support for it, and if

so, what minorities do you believe the report failed to address?

Answer: As I recall, the reason cited is one among several reasons why I did not

sign the report. While I do not have a full recollection of the concerns that I had

in the late 1980’s, I believe it is incumbent upon leaders to expand educational opportunities for every American, no matter his or her circumstance.

Question: When asked by Southern Partisan magazine about the disciplining of

a student who had a Confederate flag on her knapsack, you said: ‘‘The right of individuals to respect our history is a right that the politically correct crowd wants to

eliminate, and that is just not acceptable.’’ Do you support or oppose the efforts to

disestablish Confederate symbols in Mississippi, Georgia, and South Carolina?

Answer: The State of Missouri does not fly the Confederate flag, and I do not believe that it should. I believe we should all be vigilant in working to promote a more

racially tolerant society for everyone.

RELIGION/CHARITABLE CHOICE

Question: In 1998, you told the Christian Coalition: ‘‘A robed elite have taken the

wall of separation built to protect the church and made it a wall of religious oppression.’’ Please state which Supreme Court decisions, if any, that you believe have enacted ‘‘religious oppression.’’

Answer: The First Amendment’s balance between protected free exercise of religion, and forbidden establishments of religion, is a difficult one. Many have expressed both agreement and disagreement with the Supreme court’s decisions in

this area. As Attorney General, I will enforce the law, as interpreted by the Supreme Court of the United States.

Question: As Governor of Missouri, you did not support laws to ensure that federally-funded church-run day-care centers would be required to meet basic health and

safety requirements, such as smoke detectors, fire exits and minimum staffing requirements, that applied to all other day-care centers, public and private to protect

the safety of the children, and, instead, publicly opposed and threatened to veto

them. Can you explain why, and can you tell us what standards you would apply

as Attorney General when it comes to balancing issues like children’s safety with

the autonomy of federally-funded religious organizations in the context of Charitable

Choice programs?

Answer: As Governor of Missouri, I often faced the difficult question of how to balance the need for important health and safety regulations against the need to protect religious institutions from excessive entanglement with government. This need

for balance guided the decisions that I made as Governor. If I am fortunate enough

to be confirmed as Attorney General, I will enforce this balance consistently with

the Supreme Court caselaw on the matter.

Question: As Attorney General, one of your most important duties is to provide

legal counsel to the other branches of the Federal Government on how to abide by

their constitutional duties. Would you advise other Government departments to

comply fully with all aspects of the Establishment Clause as interpreted by existing

Supreme Court precedent?

Answer: I can assure you that I will fully advise all federal government officials

of the state of Supreme Court case law and the implications of any decision that

they make with respect to such case law. I do not think it appropriate, however,

to disclose publicly in advance the substance of any specific advice that I may or

may not give.

Question: As Attorney General, which of the Supreme court’s religion decisions

would you request the Court to overturn?

Answer: As Attorney General, I do not believe it would be appropriate to seek the

reversal of any Supreme Court decisions in a vacuum. As cases arise, I will, if confirmed, thoroughly review the law and facts of each and every one, and determine

what positions of advocacy are consistent with the law and in the best interests of

the United States. I will apply this approach to religion cases, as well as to all other

cases.

Question: As Attorney General, would you intervene on behalf of local school districts seeking to revisit the Supreme court’s decision last year in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), which held that a school district’s

policy of permitting student-led and student-initiated prayers prior to football games

violated the Establishment Clause?

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Answer: If confirmed, I can assure you that I will approach all prospective cases

in the same manner: I will evaluate the law and facts of each case, and make a

judgment on which position of advocacy is consistent with the law and in the best

interest of the United States. That being said, it would be imprudent for me to comment on a particular case not having had the benefit of the Department of Justice’s

full learning on that case.

Question: As Attorney General, would you ask the Supreme Court to revisit Edwards v. Aguillard, 482 U.S. 578 (1987), which held that it was unconstitutional for

a State to forbid the teaching of evolution unless it was accompanied by teaching

of ‘‘creation science?’’ Do you agree with the court’s decision in that case? Were you

in part referring to that case when you told the Conservative Political Action Conference Annual Meeting in 1997 that ‘‘Over the last half century, the federal courts

have usurped from school boards the power to determine what a child can learn?’’

What other cases were you referring to in that statement?

Answer: As Attorney General, I do not believe that I would have the authority

to ask the Court to simply revisit a prior decision outside the context of a specific

case. Moreover, a decision as to which arguments to advance in such a case cannot

and should not be made independent of the factual circumstances and legal question

raised in the case. Thus, it would be imprudent for me to commit to advancing or

not advancing a particular argument outside the context of a specific case. As to the

federal courts’ voluminous decisions in this area—rendered at all levels of the federal judiciary—many individuals have commented both favorably and unfavorably

on these decisions. I cannot specifically recall which of the numerous federal court

decisions in this area were encompassed by the quote that you referenced.

BUSALACCHI CASE

Question: When you were Governor, Mr. Busalacchi’s daughter was severely injured in a car crash when she was in high school, and according to written testimony submitted by Mr. Busalacchi, her doctors told him that she would remain in

a persistent vegetative state for the remainder of her life. When Mr. Busalacchi

sought to move his daughter from Missouri to Minnesota, the Ashcroft Administration obtained a restraining order preventing Mr. Busalacchi from removing her from

the state and launching a two-year battle seeking to prevent Mr. Busalacchi from

making determinations about his daughter’s medical treatment. According to an editorial in the St. Louis Post-Dispatch in December 1990, Mr. Busalacchi ‘‘came to the

Missouri Center to move his daughter to Minnesota. He was met by an administrator, two state troopers and a sheriff’s deputy.’’ Mr. Busalacchi has testified that

you, through your administration, injected your ‘‘political and religious views into

[his] family’s tragedy.’’ Do you believe that your administration’s actions in the

Busalacchi matter showed a proper respect for Mr. Busalacchi’s moral and constitutional rights as a parent?

Answer: Yes.

Question: As U.S. Attorney General, would you advocate preventing the families

of patients in federally-run medical facilities from making their own determinations

whether to continue feeding their loved ones who had no hope of regaining consciousness?

Answer: As Attorney General, I would enforce any and all federal statutes on this

issue.

SPECIAL PROTECTION FOR INDUSTRIES AND TOBACCO

Question: Why did you change your position from advocating increases in cigarette

taxes to reduce smoking and improve the health of Missourians as a Governor to

opposition of higher cigarette taxes as a Senator and potential presidential candidate?

Answer: As a non-smoker, I believe that smoking is a bad and dangerous habit,

and that all appropriate measures should be taken to discourage its use. At the

same time, in my role as a legislator and governor, it has always been my view that

the tax code should be as simple and fair as reasonably possible. The positions that

I have taken over the years, all of which are not relevant to what my role would

be as Attorney General, are, I believe, fully consistent with these principles.

Question: In 1998, you voted in support of the Gregg-Leahy amendment to strike

all special legal protection for the tobacco industry during the debate on national

tobacco control legislation. In the last Congress, however, you sponsored legislation

to provide asbestos manufacturers with special legal protection, cosponsored another

bill to provide small businesses with special legal protection and voted for a third

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ity. What has been your standard as a Senator for determining when an specific

industry deserves special legal protection from Congress, and, as Attorney General,

will you advocate that any specific industry deserves special legal protection?

Answer: As Attorney General, I will enforce all laws enacted by Congress. This

duty is separate and independent from any actions that I took as a Senator. As a

Senator, I evaluated each piece of legislation in its totality, and attempted to make

a determination on whether a piece of legislation was, on the whole, good or bad

public policy.

Question: Career prosecutors at the Department of Justice filed a lawsuit against

the tobacco industry to recover smoking-related health care expenditures, alleging

that by concealing and deceiving consumers of health risks of their tobacco products

for the past forty years the tobacco industry engaged in a pattern of racketeering

activity under the Racketeer Influenced and Corrupt Organizations Act (RICO). As

Attorney General, would you support or oppose the Department of Justice’s lawsuit

against the tobacco industry?

Answer: I assure you that any decision that I make on this lawsuit will come only

after a full and fair consultation with the appropriate officials in the Department

of Justice. Absent such consultation, however, it would be imprudent for me to comment on the merits of this case.

Question: In constituent letters to Missourians, you have written that you are ‘‘concerned that the DOJ lawsuit could set an unwise precedent leading to the federal government filing lawsuits against countless other legal industries.’’ Do you believe the federal government has a role in seek redress for the alleged misconduct

by the tobacco industry?

Answer: Yes, if the facts and the law so warrant.

Question: Do you believe that the tobacco companies deceived the American public

about the risks of death and disease from using their tobacco products? Do you believe that the tobacco companies marketed their products to children? Do you believe that the tobacco companies exploited the addictive nature of nicotine in their

products? Would these personal views influence any decision that you may make on

continuing the Department of Justice lawsuit against the tobacco industry if you are

confirmed as Attorney General?

Answer: Any decision that I make regarding any litigation, including the tobacco

litigation, will be based on a thorough view of the facts and law pertaining to that

case. As I said during the hearing, I will be law-oriented, not results-oriented. In

light of this, it would be imprudent for me to comment on the specific facts of the

tobacco suit without having the benefit of the Department of Justice’s full learning

on this question.

‘‘TAKINGS’’ LEGISLATION

Question: In 1998, you supported ‘‘taking’’ legislation reported by this Committee

on a 10-to-8 party-line vote which would take away power from mayors, local planners, city councils and local zoning boards over local land use. As Attorney General,

would you stand with most of the Nations’ governors, mayors, city officials and

towns in opposing it?

Answer: As Attorney General, I would enforce such legislation if enacted.

Question: In Williamson County Regional Planning Comm’n v. Hamilton Bank,

473 U.S. 172 (1985), the Supreme Court declared that in a takings challenge to

state or local action, no violation of the Takings Clause occurs until the landowner

seeks and is denied compensation in state court. Do you agree with this analysis

of the Takings Clause?

Answer: The Supreme court’s decision in Williamson was a significant one, and

one which, I believe, is now the law of the land. As Attorney General, I will abide

by this decision as well as all others.

VICTIMS OF CRIME

Question: Do you think that while Congress considers the merits of a constitutional amendment on victims rights that it should, at the same time, be considering

legislative measures to benefit victims, such as the Crime Victims Assistance Act,

which I introduced with Senator Kennedy in the last Congress?

Answer: I believe that it is important to consider various ways to protect the

rights of crime victims. I am, however, no longer a member of Congress, and so

would not presume to instruct the Congress on what legislative measures it is appropriate for it to consider or not consider.

Question: The Clinton Administration supported the idea of a victims’ rights

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tional rights of those accused of crimes. Senator Feingold has offered amendments

to the proposed constitutional amendment that would expressly preserve the rights

of the accused, which as a Senator, you voted against. What position would you take

as Attorney General, and why?

Answer: As Attorney General, I would fully and fairly enforce whichever constitutional amendment was duly enacted in accordance with the Constitution.

BANKRUPTCY

Question: During the debate on the Bankruptcy Reform Act in the last Congress,

you voted to support the Schumer-Leahy Amendment to end abusive bankruptcy filings used to avoid the legal consequences of violence, vandalism, and harassment

to deny access to legal health services. Do you agree that any fair and balanced

bankruptcy reform bill must include provisions to prevent the discharge of penalties

for violence against family planning clinics, as the Schumer-Leahy Amendment did

in the last Congress?

Answer: As a Senator, I supported and voted for the Schumer-Leahy Amendment.

Ultimately, however, it is up to the Congress, of which I am no longer a member,

to make these policy judgments.

FOLLOW-UP FROM HEARINGS

Question: You testified on Wednesday that you ‘‘probably should do more due diligence’’ to answer the question whether Southern Partisan magazine is a racist organization. Have you since done further due diligence? If so, do you now believe that

Southern Partisan magazine is racist and if so, would you like to take this opportunity to apologize for your association with it?

Answer: I reject racism in all it forms. I find racial discrimination abhorrent, and

against everything that I believe in. If the allegations about Southern Partisan magazine are true, then I emphatically reject it as a racist publication.

Question: When asked about your actions in connection with the nomination of

James Hormel to be Ambassador to Luxembourg, you testified that you ‘‘had known

Mr. Hormel for a long time. He had recruited me, when I was a student in college,

to go to the University of Chicago Law School.’’ Please list for the Committee any

conversation, meeting, or other contact you recollect having with Mr. Hormel, while

you were a law student or afterwards, as well as any other evidence you would like

to provide to support your testimony that you ‘‘had known Mr. Hormel for a long

time.’’ In addition, please list for the Committee any conversations, correspondence,

or other contact you had with Mr. Hormel when you were a student in college that

you believe can fairly be defined as ‘‘recruiting.’’

Answer: As I explained during the hearing, I have known Mr. Hormel for many

years, dating back to my days in law school. I have, however, not kept a detailed

record of every contact that I have had with Mr. Hormel.

Question: Please provide the Committee with a detailed list of the facts on which

you based your claims regarding Judge White’s record.

Answer: I based my claims concerning Judge White’s record on his record as a

Missouri Supreme Court judge. That record consists of Judge White’s published

opinions, which are all available in the published case reporters and on-line. Those

published opinions provide a detailed recitation of the relevant law and facts in

those cases. My claims were based on those cases.

Responses of the Nominee to questions submitted by Senator Mikulski

f Question: (A) Do you intend to be a watchdog on civil rights? How will you be a

watchdog?

Answer: Yes. As I said during the hearing, no American should be turned away

from a polling place because of the color of her skin or the sound of his name, or

denied access to public accommodations or a job because of disability, or prevented

from owning a home in the neighborhood of his choice because of skin color, or denied an educational opportunity because of race or sex, or fear being stopped by police because of race. I will vigorously enforce the civil rights laws in order to ensure

that no American suffers the indignity of unlawful discrimination.

Question: (B) I have looked into your record as an executive, both as Attorney

General and Governor in the State of Missouri. Can you explain why, as governor

of Missouri in 1988, you vetoed the Voter Registration Reform Bill that would have

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increased minority voter registration in the city St. Louis, when it was precisely the

same type of voter registration that was already taking place in St. Louis county?

Answer: My votes on this matter were fully explained in my veto messages, which

I read into the record during the hearing.

Question: (C) As a senator, you have voted against expanding the Hate Crimes

Prevention Act. As Attorney General, how do you intend to enforce the Hate Crimes

Statute?

Answer: If confirmed, I will fully enforce any law that Congress passes, and defend the constitutionality of any law for which a reasonable and conscientious defense can be made. These standards apply to the Hate Crimes Prevention Act, as

well as any other legislation that Congress chooses to enact.

Question: (D) You have said, ‘‘ [i]f I had the opportunity to pass but one single

law, I would. . . ban every abortion except for those medically necessary to save

the life of the mother.’’ (Human Events, newsletter). Can you provide assurance that

you will enforce existing laws protecting a women’s right to choose, and that you

will investigate and prosecute those individuals or groups who have targeted for assassination providers of legal abortion services?

Answer: 

Responses of the Nominee to questions submitted by Senator Lincoln

Yes. I will fully and vigorously enforce the law.

f Question (A): Arkansas experiences difficulty in recruiting physicians and other

qualified medical professionals to work in rural communities, and she is interested

in learning more about your decision as Attorney General of Missouri to intervene

in Sermchief v. Gonzales and State of Missouri (660 S.W.2d 683). This case was an

attempt to prohibit qualified nurses with advanced training from providing necessary and routine gynecological services to thousands of underprivileged female patients in your state. These services included conducting breast and pelvic examinations, performing PAP smears and providing information about effective contraceptive practices. Since we firmly believe that residents in rural areas should have access to the same specialized medical services that are available to residents who live

in urban communities, as Attorney General, how can we be assured that you will

not take similar steps to prevent appropriately trained medical professionals from

doing their job, even if you personally disapprove of the service or services being

provided?

Answer: I agree with you that making medical services uniformly available

throughout a state, including rural areas, is an important goal. In the Sermchief litigation, the Attorney General’s office participated on both sides of the case. The office

filed one amicus brief under my name on behalf of the State Nursing Board that

urged a broad and uniform construction of the relevant statutory provisions. This

position, which is similar to the position ultimately adopted by the Missouri Supreme Court, would facilitate the availability of uniform nursing services throughout the State. The office also filed a brief as amicus/intervenor addressing a single

issue on the other side of the case. The appellants argued for a construction of the

statute that would permit nurses to provide a broad array of nursing services and

that if the statute did not bear such a construction then the statute would be unconstitutionally vague. The brief as amicus/intervenor took no position on the first

issue, but did defend the Missouri statute against the attack that it was unconstitutionally vague. The Missouri Supreme Court accepted the appellants’ statutory

construction argument and so never reached the vagueness question.

Question (B): We have a profound respect for our system of government and the

careful balance of power our founding fathers established in the Constitution. Furthermore, we believe that public officials have a responsibility to discharge their duties in a way that recognizes the vital role each branch plays to ensure those we

represent have confidence in the framework we, as public officials, are sworn to uphold and defend. We raise this issue because of comments you have reportedly made

about Supreme Court Justices as well as decisions rendered by that court. In one

case you asserted that a decision by the Supreme Court was ‘‘illegitimate.’’ In addition, other statements attributed to you suggest that you view the role of constitutional interpretation by the Supreme Court as merely a matter of individual justices

‘‘chang[ing] their mind’’ or imposing their personal policy judgements on the nation.

In light of the responsibilities that will be entrusted to you if confirmed as Attorney

General, please clarify what you mean when you say a decision by the Supreme

Court is ‘‘illegitimate.’’ Is an ‘‘illegitimate’’ ruling by the Supreme Court, in your

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view, the law of the land? In addition, do you think public criticism of the Supreme

Court and justices who sit on that court would be appropriate in your role as Attorney General?

Answer: Any decision rendered by the United State Supreme Court is the law of

the land. Nevertheless, public commentary on the actions of the Supreme Court is

healthy in a democracy. As Attorney General, any comments that I make with respect to Supreme Court will be made with the utmost respect. And it will be my

solemn duty to follow and enforce the law as interpreted by the Supreme Court of

the United States.

Question: Senator Lincoln witnessed racial integration as a young elementary

school student in Helena, Arkansas, and has a strong commitment to ending racial

injustice, especially in our system of public education. While respecting whatever

personal views you may have on school desegregation programs in general, why did

you take extraordinary steps as Attorney General of Missouri to fight the implementation of a voluntary desegregation plan in St. Louis? According to the record in this

matter, you unsuccessfully appealed the issue of ‘‘remedial scope’’ in Liddell v. State

of Missouri multiple times to the same court, presumably because you hoped to receive a different response. While bringing multiple appeals in a particular case in

itself isn’t necessarily a cause for concern, under what circumstances do you think

it is a legitimate use of public resources to bring multiple appeals before the same

court on a particular issue when your initial appeal is rejected? Once a court has

ruled on an issue and you have exhausted your appeals before higher courts, you

accept the decisions rendered in the case and move on. Is that your view as well,

or was there something different about the St. Louis case that justified your vigorous actions over several years to prevent implementation of the desegregation plan

in that matter?

Answer: I fully agree that segregation is wrong and unconstitutional. I strongly

support integration in all our nation’s schools. My actions in this case reflected my

obligation as the state attorney general to defend my client in the litigation, and

each appeal represented a separate, appealable legal issue, not an attempt to relitigate already decided issues. Indeed, Missouri’s current attorney general, a Democrat, has pursued a similar course of litigation representing the state of Missouri.

And I of course agree that once the court has ruled, one must accept the court’s ruling, subject, of course, to any right of appeal. Indeed, in Missouri, I repeatedly had

to urge fealty to rule of law in the face of political pressure to do otherwise from

other elected officials.

Responses of the Nominee to questions submitted by Senator Levin

f Question (A): You made a number of strong statements in your speech to the Senate of October 4, 1999 in opposition to the nomination of Judge Ronnie White. You

said that Judge White ‘‘has been very willing to say: We should seek, at every turn,

in some of these cases to provide an additional opportunity for an individual to escape punishment.’’ Do you believe that is a fair characterization of Judge White’s

record?

Do you believe it is fair to say that Judge White’s opinions are ‘‘procriminal’’ and

that he will ‘‘push law in a procriminal direction’’ and that he practices ‘‘procriminal

jurisprudence?′′

Do you believe it is fair to say Judge White’s ‘‘opinions, and particularly his dissents, reflect a serious bias against a willingness to impose the death penalty’’?

(Given the apparent fact that Judge White’s average for upholding death penalty

cases is 70 percent, and the averages of your own appointees to the Missouri Supreme Court closely mirrors his, ranging from 75 to 81 percent.)

Answer: I stand by my criticisms of Judge White’s voting record in death penalty

cases. By my count, Judge White dissented in approximately 11.6 percent of death

penalty cases, in comparison of rates of 1.2-2.6 percent for judges that I nominated

to the bench when governor. In my view, Judge White would not have been an appropriate choice for the federal district court, where his decisions alone could, in habeas cases, reverse the judgment of the entire Missouri Supreme Court.

Question (B): A Washington Post article of January 1, 2001, reports that your

aides ‘‘now acknowledge that they initially spread the word about White to law enforcement groups.’’ Is that an accurate quote and, if so, how is that consistent with

your statement to the Senate of October 4, 1999, that law enforcement ‘‘decided to

call our attention to Judge White’s record in the criminal law? ’’

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Answer: It is altogether possible, indeed likely, that my staff had contact with constituents that had an interest in Judge White’s nomination. This is, however, perfectly normal, and fully consistent with my statement quoted above.

Question (C): What is the ‘‘personal political agenda’’ that you said in your Senate

statement of October 4, 1999, that Judge White would have advanced as a federal

judge?

Answer: My criticism of Judge White was based primarily upon his decisions in

death penalty cases. My recollection is that the statement to which you refer addressed Judge White’s views in the area of the rights of criminal defendants.

Question (D): You stated in your Senate statement of October 4, 1999, that Judge

White has ‘‘written or joined in three times as many dissents in death penalty

cases?’’ To what numbers are you referring?

Answer: By my count, Judge White dissented in approximately 11.6 percent of

death penalty cases. In contrast, Judges that I nominated to the bench dissented

in approximately 1.2–2.6 percent of death penalty cases.

Question (E): Is it reasonable for an African-American facing trial to seek recusal

of a judge who five days before trial made highly inappropriate, derogatory comments about African-Americans? If so, is it fair to call Judge White ‘‘procriminal’’

for accepting the reasonableness of that argument?

Answer: While criminal defendants may advance many arguments in the range

of ‘‘reasonableness,’’ it is not, in my view, appropriate to reverse a criminal conviction where there is no finding that any alleged error would affect the outcome of

the case.

Question (F): In your speech to the Claremont Institute, you said that funding for

drug treatment ‘‘accommodates us at our lowest and least.’’ Who or what are the

‘‘lowest and least’’?

Answer: In my speech at the Claremont Institute, I was expressing the concern

that our paramount message to America’s youth must be that drug use is wrong.

Of course, I agree that treatment must be part of a comprehensive approach to combating drug use. Such treatment, however, should not come at the expense of undermining the primary message.

Question (G): As a Senator on the Judiciary Committee last Congress, did you

play any role or support the Committees failure to hold hearings or act upon the

17 Circuit Court of Appeals nominees left pending in Committee at the end of the

last Congress? Was it fair for the Judiciary Committee to keep 15 of those nominees

pending—many of whom waited over a year—without even scheduling confirmation

hearings?

Answer: Like all Senators on the Judiciary Committee, I was involved in reviewing judicial nominations. During that time, I believe that all of my actions were consistent with ensuring that nominees were given a full and fair review.

Question (H): At the beginning of the 107th Congress, President Clinton renominated eight appellate court nominees who had been left pending at the end of the

last Congress. All eight were nominated for seats considered ‘‘judicial emergencies’’

by the Judicial Conference of the United States. Do you believe the Judiciary Committee should hold hearings on these eight who were renominated for ‘‘judicial emergencies’’ and that the Senate should vote up or down on their nominations?

Answer: It is the prerogative of both the Senate and the President to determine

how best to proceed with these nominations. I will defer to their judgment on this

matter.

Question (I): Congressman Conyers wrote you a letter on January 12, 2001, which

he has made public, asking you 16 questions. Have you answered Congressman

Conyers and if not do you intend to do so? If so, please attach a copy of your answers.

Answer: Congressman Conyers’ letter, though written on January 12, was only received by me on January 17. After I have responded to the questions provided by

members of the Senate Judiciary Committee, it is then my intent to turn to the

questions posed by Congressman Conyers.

Responses of the Nominee to questions submitted by Senators Graham and

fNelson

It has been reported that the Department of Justice Civil Rights Division is pursuing an investigation into allegations of discrimination in the November 7, 2000

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election in Florida, including counties’ use of voting devices which result in a significantly higher number of votes cast by certain minority groups being thrown out because of overvotes or undervotes; a situation in which a crowd of protesters stormed

an election office in an effort to stop the counting of ballots, thereby potentially intimidating election officials; and allegations of police officers, in an effort to intimidate, placing road blocks in close proximity to polling places. What will be your commitment to continuing this investigation?

Question (A): Can you assure us that such an investigation will be completed in

a timely manner? I would appreciate knowing within thirty days of you assuming

the office of the Attorney General what will be the completion date for this investigation.

Question (B): If violations of the Voting Rights Act are identified, would you consider remedies such as these to be appropriate: to decertify all ‘‘punch-card’’ voting

methods and other unreliable voting methods as acceptable voting methods under

Florida law; to discontinue all voter purges of the voter registration rolls until the

development of procedures to ensure uniform, non-discriminatory application of the

law; to provide a mechanism for persons whose names do not appear on the list of

registered voters at the polling place to vote in as timely a fashion as those whose

names do appear on the list; or to adopt standards and implement training designed

to insure that voting systems and procedures at polling places within their jurisdiction are equal, accurate and reliable, and are uniformly administered?

Question (C): If the independent United States Commission on Civil Rights does

discover instances of voter disenfranchisement, will the Department of Justice expand its investigation into allegations of violations of Floridians’ voting rights and

aggressively prosecute violations of the Voting Rights Act?

Question (D): Based on what the Department of Justice will learn from this investigation of the 2000 election in Florida, what specific plan will you use to ensure

that the discriminatory practices do not recur in future elections? What resources

will you commit to ensure that this specific plan achieves its objective of avoiding

discriminatory practices in future elections?

Answer: If confirmed as Attorney General, I will ensure that the allegations of

vote irregularities connected with the recent election in Florida are fully investigated, and will take all appropriate steps to complete that investigation in a timely

manner. In addition, I will work to ensure that the Congress is kept apprised of

the progress of the investigation.

If violations of the Voting Rights Act are identified, I will consider all reasonably

appropriate remedies. It would, however, be imprudent for me to comment on any

specific remedy without the full learning of the nature of any specific violations

which may be found and the various approaches to addressing those violations.

If confirmed, I will ensure that the Department of Justice takes all reasonable

and appropriate steps necessary to investigate all credible allegations of vote irregularities, including any credible allegations raised by the United States Commission

on Civil Rights.

Once the Department of Justice completes its investigation, I will be in a position

to determine what specific steps are appropriate to address any irregularities discovered, to help ensure that such irregularities do not recur in the future, and to determine the appropriate level of resources to commit to the issue. Such determinations,

however, cannot be made in advance of a thorough investigation.

Responses of the Nominee to questions submitted by Senator Schumer

fENVIRONMENTAL LAW

Question: What is your philosophy on enforcement of environmental laws?

Answer: I firmly believe that the federal government must play an important role

in protecting the environment and our natural resources. If confirmed, I will see to

it that federal laws protecting the environment are fully and faithfully enforced.

HATE CRIMES

On January 18, 2001, you said, in response to a question from Senator Schumer

that you would fully enforce the Hate Crimes Statistics Act. This act, passed in

1990, requires the Justice Department to collect data on crimes which ‘‘manifest

prejudice based on race, religion, sexual orientation, or ethnicity’’ from law enforcement agencies across the country and to publish an annual summary of the findings. In the 1994 crime bill, Congress expanded coverage of the act to require FBI

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reporting on crimes based on ‘‘disability.’’ In the 106th Congress, legislation passed

the floor of both the House and the Senate that would require FBI reporting on

crimes based on ‘‘gender.’’ Unfortunately, it was not enacted into law.

Question: Would you be inclined to recommend that the Administration support

adding gender to the categories in the Hate Crimes Statistics Act? If not, why?

Answer: Although I cannot comment on the details of the specific legislation, I

agree that it is extremely important to take all reasonable and appropriate steps

necessary to collect crime statistics. Further, should the referenced legislation be enacted into law, I assure you that if confirmed, I will fully and faithfully enforce that

law.

Question: Will you fully enforce the Hate Crimes Sentencing Enhancement Act?

Answer: If confirmed, I will fully and fairly enforce all laws passed by Congress.

Question: If you believe as you said on January 18, 2001, that the Hate Crimes

Prevention Act is constitutional, why did you oppose it as a Senator?

Answer: As I explained during the hearing, many laws that some might oppose

based on public policy grounds, fully comport with the requirements of the Constitution. There is, in short, nothing inconsistent between voting against a law for policy

reasons, but nonetheless fully agreeing that such a law is well within the bounds

of Congress’s constitutional authority.

Question: Do you believe sexual orientation should be a category added to the federal hate crime law currently used to prosecute hate crimes based on race, religion,

national origin and color, 18USC Section 245? If so, why? Or, why not?

Answer: President Bush has indicated that he supports Senator Hatch’s hate

crimes legislation. I support the President’s position on this issue.

Question: Do you believe gender should be a category added to the federal hate

crime law currently used to prosecute hate crimes based on race, religion, national

origin and color, 18 USC Section 245? If so, why? Or, why not?

Answer: President Bush has indicated that he supports Senator Hatch’s hate

crimes legislation. I support the President’s position on this issue.

Question: Do you believe disability should be a category added to the federal hate

crime law currently used to prosecute hate crimes based on race, religion, national

origin and color, 18USC Section 245? If so, why? Or, why not?

Answer: President Bush has indicated that he supports Senator Hatch’s hate

crimes legislation. I support the President position on this issue.

Question: Under your leadership would the Department of Justice continue the

important work of the U.S. Attorney Hate Crimes Working groups currently in

place?

Answer: As the Governor of Missouri, I was proud to sign Missouri’s first hate

crimes legislation. If confirmed, I will take all reasonable and appropriate steps to

combat hate crimes at the federal level and will devote the necessary resources to

do so.

Question: There are currently studies and training programs on how to identify,

report and respond to hate violence as defined by the 1994 Hate Crimes Sentencing

Enhancement Act. Will you continue these important outreach and training programs?

Answer: As the Governor of Missouri, I was proud to sign Missouri’s first hate

crimes legislation. If confirmed, I will take all reasonable and appropriate steps to

combat hate crimes at the federal level and will devote the necessary resources to

do so.

Question: Under your leadership would the Department of Justice continue including ‘‘sexual orientation’’ as a category in the anti-bias programs developed by the

Department of Justice or under contracts and grants provided by the DOJ?

Answer: As I explained during the hearing, if confirmed, sexual orientation will

not be a factor in my hiring decisions. I am, however, not familiar with the details

of the particular policy to which you refer.

GUN CONTROL

The United States has a serious problem with illegal firearms trafficking. This is

clearly a federal issue, as demonstrated by the experience of my state of New York.

New York streets are flooded with guns coming from southern states. For example,

1,685 guns traced to crime scenes in New York originated in Florida, Georgia, the

Carolinas, and Virginia. As a candidate for Senate, you were quoted in the St.

Louis-Post Dispatch as supporting stronger penalties for people who sell gun illegally as well as for stronger penalties for people who commit crimes with guns.

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Question: Do you believe that the federal government should have a strong role

in the prosecution of illegal firearm trafficking?

Answer: Yes.

Question: Is it your opinion that federal authority to prosecute illegal gun traffickers should be enhanced?

Answer: President Bush has made clear that the federal gun laws on the books

should be fully and fairly enforced and has proposed additional, common-sense gun

restrictions. I will support the President’s position on this issue.

Question: Would you say that federal prosecutors should have at their disposal

every available tool to prosecute illegal gun runners?

Answer: No. For example, as in all prosecutions, federal prosecutors should not

be allowed to disregard the strictures of Due Process. But I do agree that prosecuting gun crimes should be a top priority of the Department of Justice.

Question: As a senator did you not oppose the addition of firearms offenses to the

list of crimes that could be prosecuted under the federal RICO statute?

Answer: My position on this matter was based on by belief that the RICO statutes

have, in some circumstances, been abused. Indeed, the ACLU has been very critical

of RICO and has opposed its expansion.

Question: A 1999 analysis performed by my staff of crime gun tracing data showed

that one percent of gun dealers were the source of 45 percent of crime guns. Moreover, a June 2000 study from the federal Bureau of Alcohol, Tobacco and Firearms,

Following the Gun: Enforcing Federal Laws Against Firearms Traffickers found that

corrupt licensed gun dealers were associated with by far the highest mean number

of illegally diverted firearms per investigation.

With these facts in mind do you favor measures that would crack down on such

‘‘bad apple’’ dealers?

Answer: Yes.

Question: Specifically, would you support criminal prosecution of licensed gun

dealers who transfer a firearm ‘‘having reason to know’’ that such a firearm will be

used to commit a crime of violence or a drug trafficking crime?

Answer: I believe that all federal gun laws should be fully and fairly enforced.

Question: Do you support steps that have been taken to reduce the number of federally licensed gun dealers from nearly a quarter of a million in 1992 to approximately 70,000 today?

Answer: I support the full and fair enforcement of all federal gun laws aimed at

reducing gun crimes.

Question: Do you support the current concept of background checks for firearm

purchasers and will you will work to maintain the effectiveness of the NICS.

Answer: Yes, I am committed to doing so.

Question: As you may be aware, the FBI has determined that in order to insure

the effectiveness of the NICS, it is essential to maintain an audit log. The FBI has

determined that records from NICS should be kept for six months to guarantee that

the NICS is functioning. Are you planning to support the FBI’s expertise in this

matter?

Answer: I will fully consult with the experienced professionals of the FBI before

making an assessment of the best approach to this issue.

Question: You may be aware that the National Rifle Association filed a lawsuit

against the Department of Justice, NRA v. Reno, that would have required the FBI

to immediately destroy records from NICS instead of allowing the audit log. The

NRA’s lawsuit failed. In a case like this, would you side with the FBI and defend

the lawsuit?

Answer: It would be imprudent of me to comment on a specific lawsuit without

the benefit of the FBI and Department of Justice’s full learning on this case. Any

decision that I make would be done only after full and fair consultation with the

experts in this area.

Question: On July 21, 1998, you voted for an amendment offered by Senator Robert Smith from New Hampshire to the Justice Appropriations bill that would have

required immediate destruction of any NICS records relating to an approved transfer. You have voted to undermine what the FBI maintains is an essential to successful operation of the NICS. How can we be sure that you will work with the FBI

to maintain the integrity of the NICS when you have already sided with the gun

lobby over the FBI?

Answer: As I explained during the hearing, if confirmed, I will be law-oriented.

That means that I will fully and fairly enforce the law as enacted by Congress and

signed by the President. My record as Missouri’s attorney general attests to the fact

551

that this is a distinction that I fully recognize and adhere to. It further demonstrates my longstanding commitment to law enforcement.

Question: Do you support the current law requiring federally licensed firearm

dealers to conduct background checks on firearm purchasers?

Answer: The President has indicated that he supports this law, and I support his

position on this matter.

Question: What in your opinion is the purpose of the background check law?

Answer: The primary purpose of a background check is to prevent those individuals who have been barred by law from purchasing a firearm to purchase one.

Question: Are you aware that the Department of Justice has determined that 95%

of background checks are completed within two hours?

Answer: I am not familiar with all the details of the Department of Justice’s crime

statistics.

Question: Are you aware that the Department of Justice has determined that of

the remaining 5%, ‘‘22% of all gun buyers who are found to be prohibited persons

are not found to be prohibited until more than 72 hours have passed.’’

Answer: I am not familiar with all the details of the Department of Justice’s crime

statistics.

Question: Why did you vote to reduce the time allowed to conduct background

checks at gun shows, by all sellers, including licensed dealers, from the current

three business days to 24 hours?

Answer: As with many laws, the need for health and safety regulation must be

balanced against the rights of law abiding citizens. As a legislator, I believed that

a 24-hour background check was the best balance to strike in this area. As Attorney

General, I will enforce whatever laws Congress chooses to enact.

Question: Why would you vote to establish a weaker standard for licensed dealers

selling at gun shows than dealers who are selling at gun stores?

Answer: As discussed above, as with many laws, the need for health and safety

regulation must be balanced against the rights of law abiding citizens. As a legislator, I believed that a 24-hour background check was the best balance to strike in

this area. As Attorney General, I will enforce whatever laws Congress chooses to

enact.

Question: Are you aware that the FBI has estimated that under a 24-hour time

frame, more than 17,000 people who had been stopped would have been sold firearms?

Answer: I am not familiar with all the details of the Department of Justice’s crime

statistics.

Question: The Assault Weapons bill bans the manufacture and importation of

semi-automatic assault weapons and high-capacity magazines over 10 rounds as of

September 13, 1994. That law is set to sunset on September 13, 2004. What plans

do you have as the nation’s top law enforcement officer to work to reauthorize that

law?

Answer: The President has said that he would support reauthorization of the ban

on assault weapons. I will support the President’s position on this matter.

Question: On two occasions, July 28, 1998, and May 13, 1999, you voted against

amendments offered by Senator Feinstein to ban the importation of high capacity

magazines, those over 10 rounds. What is your rationale for opposing such a ban

on the importation of high capacity magazines which can hold 20, 32 or even 100

rounds of ammunition.

Answer: As Attorney General, I will fully enforce our nation’s gun laws. The President has said that he would support banning the importation of high-capacity ammunition magazines. I will support the President’s position on this matter.

Question: Would you support legislation that allowed national carrying of concealed handguns?

Answer: The President has said that he would support legislation to allow active

and retired law enforcement officers to carry concealed weapons across state lines,

but that, beyond that, the issue is one for states to decide. I will support the President’s position on this issue.

Question: As a rule, do you think we are a safer nation if more people are carrying

concealed handguns?

Answer: The President has indicated that he believes that the Nation would be

safer if certain individuals—active and retired law enforcement officers—were able

to carry concealed weapons across state lines. Beyond that, it is up to individual

states to decide the matter.

552

Question: As Governor of Missouri, you opposed legislation that would have allowed individuals to carry concealed handguns in your state, is that correct?

Answer: The Director of Public Safety, a cabinet appointee of the Governor, and

the Superintendent of the Missouri Highway Patrol, also an appointee of the Governor, opposed the legislation. As Governor, I took no position on the legislation,

which did not pass the General Assembly.

Question: In 1999, you supported an NRA backed referendum, Proposition B, to

allow carrying concealed handguns in Missouri, is that correct?

Answer: Yes.

Question: In fact, you did a radio ad that according to the Associated Press

‘‘blanketed the Missouri airwaves’’ indicating your support for that measure, is that

correct?

Answer: I did record a radio spot in favor of the referendum. I am not aware of

the extent to which that radio spot received air time in the state.

Question: How did that radio ad come about?

Answer: Although I do not recall the specific details, my recollection is that supporters of the referendum approached me and asked me to record the radio spot.

Question: Were you aware of who funded the campaign to allow the carrying of

concealed handguns in the state?

Answer: No. I was not aware of the details of which groups or individuals funded

the referendum. My understanding, however, is that such information is publicly

disclosed.

Question: Proposition B would have prevented felons and criminals convicted of

violent crimes from carrying handguns. But as the system was created, it would

have not only allowed, but could not prevent, other categories of criminals, like child

molesters and stalkers, from obtaining a license to carry handguns in Missouri. How

would Missouri have benefitted from a law that allowed child molesters and stalkers

to carry handguns in your state.

Answer: My support for this initiative was predicated on the fact that federal law

prohibits convicted felons and other prohibited persons from possessing firearms at

all. Federal law obviously would pre-empt any state law that purported to permit

felons to possess firearms. To the extent there were loopholes in Missouri law lowering the status of the two crimes you mention in your question, I was unaware of

those provisions at the time.

NOMINATIONS

Question: Three months before you voted against Mr. Hormel to be Ambassador

to Luxembourg, you joined with a unanimous Senate in approving him as Alternate

Delegate to the United Nations General Assembly. What, if anything, did you learn

about Mr. Hormel in those intervening three months? Did you speak with Mr.

Hormel at any time in those three months? In what way, if at all, was ‘‘the totality

of [Hormel’s] record’’ different at the time you voted against his nomination as Ambassador to Luxembourg from the time you voted to approve him as a delegate to

the United Nations?

Answer: Like many other Senators, the standard that I applied for presidential

nominees varied depending upon the office for which the nominee was nominated.

I thus believed that while Mr. Hormel might serve adequately as an Alternate Delegate to the United Nations General Assembly, he would not, based on the totality

of his record, have been an appropriate person to serve as Ambassador to Luxembourg.

f553

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1234

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