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Sen. John Ashcroft Testifies Before Senate Judiciary Committee

Aired January 17, 2001 - 10:10 a.m. ET


LEON HARRIS, CNN ANCHOR: And go over to Senate, where John Ashcroft is beginning his comments this morning at his hearing for confirmation as nominee for attorney general.


JOHN ASHCROFT, ATTORNEY GENERAL NOMINEE: ... 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...

SEN. PATRICK LEAHY (D-VT), CHAIRMAN, JUDICIARY COMMITTEE: You were attorney general at that time, is that correct?

ASHCROFT: I believe that's correct.

SEN. ORRIN HATCH (R-UT), RANKING MEMBER, JUDICIARY COMMITTEE: I wonder if we could go to the regular order, Mr. Chairman.

LEAHY: I just wanted to -- well, the answer...

HATCH: That's the answer he gave yesterday, as well.

LEAHY: Yes, but I think, as he pointed out, it needed a correction, and I'm trying to be fair to the nominee, because the answer was not...

HATCH: I don't think it needed a correction. I mean, it was the answer he gave yesterday, and I think it was as plain as the nose on any of our faces.


HATCH: Well, let's just have regular order.

LEAHY: Well, we -- the nominee just said he thanks me for the chance to correct it.

But go ahead, Senator Kohl.

ASHCROFT: Sir, in all due respect, I thank you for the opportunity to clarify.

LEAHY: Thank you.

Senator Kohl?

SEN. HERB KOHL (D), WISCONSIN: Thank you, Senator Leahy.

Senator Ashcroft, I believe that we failed the Senate and our constituents when we put politics above policy and bitterness above compromise. In an equally divided Senate, we have a terrific opportunity to give the public faith in democratic institutions. It's not clear whether or not you fully agree.

Yesterday, Senator Leahy read a 1998 quotation of yours. Quote: "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," unquote.

And that year you were also quoted as saying, quote, "There are two things you find in the middle of the road -- a moderate and a dead skunk, and I don't want to be either one of those."


As someone who works the middle of 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.

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.

And 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 the people can generally support and that will have good values expressed from a variety of significant perspectives.

ASHCROFT: I'll 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 to 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 is 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 tell the same story." Now, I don't know whether she will 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 common-sense conservative and I haven't been right in the middle of the road.

KOHL: Well, you're 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's fine. I mean, you know, you campaigned as that kind of a senator-to-be. You were elected and you've 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? ASHCROFT: Well, I thank you for that question, because these are vastly different roles. I mean, if a person is playing in the power- forward position he has one approach to the basket. If he is playing as the distributor of the ball, as the play-maker, 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 in -- I had to sacrifice some of my advocacy roles and some of 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, he is referenced to the president of the United States. And it would be my responsibility to carry forward on things that this 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 are 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 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 United States 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 in respecting privacy...

LEAHY: Separated at birth.

ASHCROFT: Separated at birth? Yes, 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.

KOHL: OK, thank you.

In 1979, as attorney general of Missouri, you brought an antitrust case against the National Organization of 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 noncommercial concerns, the Sherman Act does not apply.

And yet even if you lost the case, you still disputed the ruling. In 1981, you wrote a Law Review article that said, quote, "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?

ASHCROFT: I 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 of the details. We filed the lawsuit, to the best of my recollection, 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 I 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 8th 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 8th 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 is a part of the way, I've come to believe, America resolves these issues.

JEANNE MESERVE, CNN ANCHOR: You have been listening to Sen. John Ashcroft testifying today before the Senate Judiciary Committee, defending some of the specifics of his record as attorney general in the state of Missouri. Also responding there's a now-famous joke that made, saying there are two thing find dead in the middle of the road, moderates and dead skunks. And he said, I won't be either one. Today, he said he really regrets if anybody was offended by that, that that was intended to be humorous.

He was asked whether his conservative stance as a senator would be similar to his stance as attorney general. John Ashcroft saying, those are very different roles.



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