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Ashcroft Hearing: Senators Question Ashcroft About Ronnie White

Aired January 17, 2001 - 2:09 p.m. ET


JEANNE MESERVE, CNN ANCHOR: The Senate Judiciary Committee has gone back into session to hear more testimony from John Ashcroft. Let's listen in.


SEN. DICK DURBIN (D), ILLINOIS: I've said this to the press and I've said it to you personally: I think what happened to Judge Ronnie White in the United States 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's 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, quote, "one of those moments when justice has come to pass," close quote.

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 a 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'm 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 United States 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 decisions were affirmed 70 percent of the time, a significantly better record than his predecessor, who was affirmed 55 percent of the time, a gentleman whom you appointed to the Missouri Supreme Court.

And then there was the Kinder (ph) case, which raised the 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's 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, 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 fund-raisers for many years, resigned from your campaign after the vote on Judge White.

Trotter said in a letter to you that he objected to, quote, "your marathon public crucifixion and misinformation campaign of Judge White's record as a competent jurist."

Mr. Trotter wrote that he'd never met White, but he suspected that you chose, in quote, "a different yardstick," close quote, to measure his record.

Senator Ashcroft, did you treat Ronnie White fairly?

JOHN ASHCROFT, ATTORNEY GENERAL NOMINEE: 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 a U.S. district court, it's within the power of that single U.S. district court judge to set aside the judgment of the entire Supreme Court of the state of Missouri. So that my seriousness with which I addressed these issues is substantial.

I did characterize Judge White's record as being pro-criminal. I did not derogate his background. 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.

DURBIN: How many?

ASHCROFT: Well, I know that the National Sheriffs Association did.

DURBIN: The Missouri Federation is one group and they represent, I think, 70 municipalities. The larger group, the 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?

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.

DURBIN: Your campaign did not contact these organizations?

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.

DURBIN: Senator Ashcroft, I'm 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 Wolf, 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."

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 murders a new trial by repeatedly urging lower standards for proving various legal errors.

DURBIN: In which specific cases?

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 on a shooting rampage in California, Missouri.

This was during the time...

DURBIN: Senator Ashcroft...

ASHCROFT: ... I was governor of the state.

SEN. JEFF SESSIONS (R), ALABAMA: Mr. Chairman, I think the witness needs to be entitled to answer the question. He's been interrupted about five times.

DURBIN: Well, I'm anxious to have a complete record, but I also want this to be an exchange in dialogue as opposed to a complete speech on one side. I am familiar with the case and I've read it.

I'd like to ask you a specific question about the case.

ASHCROFT: Well, you've made a number of statements, Senator, and obviously I'm not running this hearing, but I would like to have the opportunity to respond to those statements.

DURBIN: Please do.

ASHCROFT: 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 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 plead, 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.

DURBIN: 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've read the case as I have, I cannot believe that you would have hired -- or would hire if you're 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.

ASHCROFT: Well, I think that being the only point, it's an inadequate point to overturn a guilty verdict for four murders.

DURBIN: So the competency of counsel in a death penalty case you don't believe is grounds for overturning?

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. And 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.

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's the point Judge White made.

ASHCROFT: Well, 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.

And 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 still thought he was back in Vietnam. Truth of the matter, is he hadn't done that at all.

DURBIN: That was the point that Judge White made.

ASHCROFT: That is the point.

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've 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 United States Senate, and I'm troubled by that.

I yield to the chairman.

SEN. PATRICK LEAHY (D-VT), CHAIRMAN, JUDICIARY COMMITTEE: Do you have anything further to say on this? If you wish.

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 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.

And 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 am 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 the 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.

Now, I know of no regime anywhere that says merely the detection of an error at trial without measuring its impact -- 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.

DURBIN: What 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.

LEAHY: Senators, we will, I'm sure, come back to this issue more, and I will extend extra time to the senator from Alabama who has been patiently waiting.

SESSIONS: Thank you, Mr. Chairman.

And I welcome you, John, back to the pit. You've 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 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's 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 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 have every right to raise issues and complain and ask questions. That's part of this process. I'm sure it's 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 a 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's our duty to get to the bottom of that.

I'd just say that to start with.

And with regard to Justice White, I know Senator Durbin feels strongly about this, and he's looked at it, but I just don't agree. I'm not -- you know, we say this is not a racial question. You voted for every African-American judge that's been up here, but a big point is made of his race. I think you should be treated like any other nominee, and that's what's fair. And he does have an important job now, which he will continue to hold. He's one of seven judges there.

Now, before I became a senator, I was attorney general two 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 can not 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've 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's 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.

The 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.

At that moment, that defendant is freed, jeopardy is deemed to have been attached under the law. He can never be retried no matter how horrible that crime was. Most people don't believe that's true. Trust me, that is the law in America. It is unreviewable power that cannot be appealed.

And so, I think, from the point of view of a prosecutor -- and John Ashcroft served eight years as an attorney general -- who handles appeals on a routine basis before the Supreme Court, they know the importance of making sure that whatever we do that not on my watch as the United States senator from Alabama will I confirm a judge I believe is not fair to law enforcement. He's not fair to law enforcement, he's not fair to victims; not fair to law enforcement, he's not fair to justice. So this is a big deal, number one.

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 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 or 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 is 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 home-run goofy defense that it was post- traumatic stress syndrome. That's what they tried to pull off. And it failed, they were caught in it, the defendant was convicted.

From 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's what jury trials are all about: Who's 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're 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 get caught, they could ask for a new trial for the defendant.

That's 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's something akin to insanity." Now, we've got some real problems in this country over getting a clear definition of insanity. After the Hinckley shooting of President Reagan, this Congress dealt with and confronted that difficult question and come 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.

And in the exchange, Senator Durbin, between you and Senator Ashcroft, I don't think you do dispute that it is the established law that you must show not only ineffectiveness -- which I suppose you could say this was ineffective, since he tried a defense that didn't succeed, but what other defense did he have? But, secondly, 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's the established law, I believe, in America, as Senator Ashcroft has articulated, and that's 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 was 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's well over half. I am quite sure many of those were Democratic sheriffs -- opposition, writing to Senator Ashcroft, his state senator, opposing that nomination. I think that's very significant.

In addition to that, the National Sheriffs Association opposed the nomination. The Missouri Federation of Chiefs of Police wrote, quote, "We are absolutely shocked that someone like this would even be nominated to such an important position. We're willing 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 -- "on capital cases and on Fourth Amendment cases" -- that's the search and seizure, where there's a lot of daily work done there -- "should be disqualifying factors when considering the nomination."

SESSIONS: Now, I know that it is no fun, it is a difficult thing in a situation like this to oppose the nomination of somebody who, you know, appears to be a good person in every respect. But a lifetime appointment -- that bench is very important. And I think we can do better about it.

LEAHY: Do you have anything to add to that?

SESSIONS: Do you agree?

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's 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 allegation 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's 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 a part of our judicial system if they are biased.

But you have a situation here where there is an alleged bias. I'm 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 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. Irvine (ph) is another case. Now this was not about Judge White urging broad, lenient legal rules, but it still caused me great alarm. In order to have a death penalty in Missouri, you've 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 into 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 a 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's enough depravity of mind and brutality of conduct in that description to satisfy almost anybody. Almost anybody.

But Judge White says, it just barely concur that there's a submissable case of first degree murder here. Well, it's 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 a 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's a different circumstance, and I don't comment on that.

LEAHY: The chair has given the same amount, now, of extra time to both the senator from Alabama...

SESSIONS: I thank the chair.

LEAHY: ... and the senator from Illinois.

SESSIONS: Can I just have one second to wrap up?

LEAHY: Well, then the senator from Alabama, then, will have more time. Go ahead.

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 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.

LEAHY: Thank you.

I know the senator from Alabama wanted to note the fairness of both the Republican and Democratic leaders.

SESSIONS: I will note that, Mr. Chairman.

LEAHY: The distinguished senior senator from Delaware, as I noted before, has been absent because of chairing the Powell hearing. And so, at this point he is able to rejoin us and I yield to him.

I would also note that the senator from Delaware did not have the three to four minutes of opening statement he would have had yesterday. He's entitled to that, today, as well as his 15 minutes, should he want it.

SEN. JOSEPH R. BIDEN (D), DELAWARE: I thank the chair. I will try not to take even all the 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's why I was not here. And then 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.

So that's 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 our opening statement. "You are to become the people's lawyer more than you are to be the president's lawyer. Consequently, questions relating to your nomination is not merely whether or not you possess the intellectual capabilities and legal skills to perform the tasks of attorney general. And not merely whether you're a man of good character and free of conflict of interests 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 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've applied -- and I 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've 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've always applied and that is whether or not the vast majority of Americans will believe that you will enforce the law vigorously on their behalf, is one of my concerns here. Not just whether you will, whether you are believed 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. And 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 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 are 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 who were in your position. And I've 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. For those who suggest that maybe this is a bit of an epiphany, I would suggests that it's been the standard I've applied my entire Senate career.

And I say to folks, it does matter what you're nominated for. For example, if I had -- well, let me just say it this way -- I'm worried, Senator, about the cumulative weight of items that lend the perception, at least, that you're 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 a -- not merely your sponsoring an act called a Civil Rights Act of '97, I think 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'll read it in the record.

In the magazine called The Southern Partisan Magazine. That's a magazine to which you gave an interview and it's a magazine that has been characterized by the Associated Press and other mainstream publications as a "Southern, part neo-Confederate publication that regularly vilifies Abraham Lincoln as a tyrant, helps" and so and so on -- I won't go into all the detail.

But a magazine that -- excerpts from the magazine that I've 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, the same outfit, celebrating former KKK klansman David Duke as, "a candidate concerned about affirmative discrimination, welfare profligacy and taxation holocaust, a popular spokesman for a recapturing of the American ideal."

Or it goes on. After a visit by one of the writers for The Southern Partisan to New York, 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...

KYRA PHILLIPS, CNN ANCHOR: As we continue to follow the confirmation hearing of John Ashcroft for attorney general, at the bottom left-hand of your screen, President Clinton has arrived at the Arkansas state capital. He is going to be addressing this joint session of the Arkansas legislature with a farewell address. We are going to listen in for a moment.


MESERVE: Kyra, lunch was over and the gloves came off in the Senate Judiciary Committee. Senator Dick Durbin, a Democrat from Illinois, took John Ashcroft to task for the case of Ronnie White. Ronnie White is a Missouri Supreme Court justice who was nominated to the federal bench; Ashcroft opposed that nomination and successfully derailed it in the U.S. Senate.

Durbin said today that he felt what happened to Ronnie White was disgraceful. He said that Ashcroft had mischaracterized White's background, temperament, judicial training and record on the bench. And there then was a spirited exchange between Durbin and Ashcroft on the record of Ronnie White. Then, Senator Jeff Sessions also chimed in, supporting Ashcroft and the decisions he had made and the battles he had fought against Ronnie White.

Bob Franken is up on Capitol Hill. Bob, I remember when John Ashcroft was first nominated for the position of attorney general. One of the very first questions to him revolved around Ronnie White. This remains a central issue in this nomination, doesn't it?

BOB FRANKEN, CNN CORRESPONDENT: It does, and I think we have to point out that it's relevant that Ronnie White is an African-American -- was the first African-American appointed to the Missouri state Supreme Court; and there are the many, many critics of John Ashcroft who charge that his opposition to Ronnie White's confirmation as a federal judge -- his successful opposition -- was based on a willingness to engage in racial politics during an election year; that is the charge.

And Ashcroft vehemently denies it; he said that he was simply opposed to the judicial activism on the part of Justice White, saying that he was pro-defendant; he used the case that Senator Durbin described a really awful murder case in 1991, where four people died, including the wife of the sheriff in Missouri, a sheriff who, when the Ronnie White matter came up, was fairly active in trying to discourage anybody from confirming his nomination. White testifies tomorrow, by the way, Jeanne.

MESERVE: Bob Franken, thanks.

Right now, Senator Joseph Biden of Delaware is holding John Ashcroft's feet to the fire. Let's listen to him.


BIDEN: No, this place loves contrition. I mean, I've 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 know, you're 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 imposed on a disgruntled ex-employee of a married couple. The defendant entered the couple's home, shot the wife twice with a shotgun, and 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. And in the second case, he wrote an opinion reversing the death penalty that had been imposed on a defendant that 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 you know, what people are looking for is balance. So, I'd have less trouble with Ronnie White if you had gone to the floor when this decision was made and say, "You know I'm 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. Nobody says that. But Ronnie White comes along -- 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 don't believe -- I don't believe that. I don't believe that. But they're suspect because they believe that your ideology blinds you to an equal application of, not just the law, but the facts. And that's the part that I've told you that troubles me.

I mean here you got -- what would you all have said if I had gone up here and my -- I voted for Scalia, as I tell you. He's a great guy. I was once asked, what's the one vote out of over 10,000 I regretted, was voting for Scalia. That was the one I most regret. I tell him that, he jokes about it. I teach a class in constitutional law. When he found out, he called me. He said, "Joe I got to come up and co-teach that class with you, because you're really probably steering those kids in a different direction they should go." Have a good relationship with him and I respect him. But I think he's dead wrong.

But if I had stood up and said, you know, "I'm voting against Scalia for that reason and organize folks." I think you all would have said, "Whoa, wait a minute."

I don't know, John, I guess what I'm trying to get at and it's my frustration, because damn -- darn, I'm not looking to vote against you. I mean, this is not a comfortable thing. Just like my friend from Alabama said when he came in, he said, "You know, it's hard to vote against a guy like Ronnie White. He's a decent, honorable guy. Hard to vote against him. But on the issues he's wrong. He's, obviously, otherwise a decent, honorable man."

But you know, that old expression we remember from law school, you know, hard cases make bad law. But this is a hard case. And I just wanted you to know my frustrations.

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'd understand why -- take away the interest groups. I'm not a big fan of interest groups, as you probably know. I don't meet with them anymore, because I don't trust them. With two exceptions, in my experience.

But I wonder why -- I'll end with this and I'm sorry. I hope you'll understand why there's so many -- as this stuff comes out, so many average black Americans that sit there and say, "Geez, I don't want this guy. I don't want this guy. I'm not crazy about having this guy."

I just -- if you understand that, because you're probably going to be attorney general. And I hope and you take away nothing from this except, this matters to people, John. Words matters. Word matters. And the less you have the more distraught you are, the less you think you can get representation, the more the words matters.

Sorry, it sounds more like a lecture than anything else. But I don't mean it that way. That's my frustration.

LEAHY: Senator Ashcroft, do you wish to respond? Obviously, you have time to.

ASHCROFT: Well, thank you very much.

First of all, I want to make very clear that I repudiate racist organizations and racist ideas.

BIDEN: Is the Southern Partisan Magazine racist in you opinion?

ASHCROFT: I probably should do more due diligence on it. I know they've 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've told my children I'd rather have my wallet stolen then for me to be someone who steals a wallet.

BIDEN: I've got that, John. But all those folks behind your experts. They knew this was coming up. Didn't they tell you what that magazine was? The guy sitting back to your left -- he's done 10 of these. He's forgotten more -- he's read every one of those issues. You know it, and I know it. Didn't he tell you, "Hey, this is a racist outfit"? I mean, what more do you need to know.



ASHCROFT: I mean, I don't want to be disrespectful, but for you to suggest that I was told that all of these things that you've 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.

BIDEN: John, if I'm wrong, you should tell me because I'm operating on this. If it's factually wrong, then I'd be happy to hear what...

ASHCROFT: Well, you know, that's not my purpose. Let me express to you that I believe that racism is wrong. 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's 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 on this panel that voted in favor of restoring the citizenship of Robert E. Lee, and at that time they did so, they said the entire nation has long recognized the outstanding virtues of courage, patriotism and selfless devotion to the duty of General Robert E. Lee.

BIDEN: John, you're good, but this ain't about Robert E. Lee. I just hope when you're attorney general you will understand you've got to reach out...

LEAHY: Gentlemen.

BIDEN: I've gone too much.

LEAHY: Did you have further?

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 a 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.

LEAHY: Gentlemen, we've extended extra time here partly because the senior senator from Delaware was unable -- or representing the Senate at a funeral yesterday -- was unable to be here, so he had his time from then and today. The witness has had ample chance to answer the question, am I correct?

BIDEN: He didn't answer all of the things -- you know, when a person spend 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.

LEAHY: As I said yesterday, the witness will have -- should not to feel in any way that he is cut off, nor senators cut off in questions. If the nominee feels at any time there has not been adequate time to answer, as I said yesterday, we will provide the time. We'll 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 error in an answer yesterday, I raised that point. Again, if the nominee doesn't 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 the questions that are asked of him as completely as he wants. By 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'll turn to the senator from New Hampshire, Senator Smith.

SEN. BOB SMITH (R), NEW HAMPSHIRE: Mr. Chairman, because of being in and out with another hearing which I was involved in, is it 15-minute period, is that -- how much time do we have?

LEAHY: Have you had -- you haven't had a chance. Then you have 15 minutes.

SMITH: Thank you, Mr. Chairman.

Let me just say, in terms of watching and 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 couldn't get much higher yesterday.

The way that you have risen above the attacks that have been delivered upon you is remarkable. It's 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 United States 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'd be a lot different, if he could have enacted them unilaterally. But he also said, "I will enforce the law."

That's 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 six years here as United States senator. That's not what this hearing should be about. Let's stay focused on what it really is about.

It's ironic, too, that where Senator Ashcroft has said that he will enforce the law, even if he'd rather change the law, he would still enforce it. On the other hand, his critics from the left are saying that, "If you can't agree with my view on the law, you can't be attorney general."

This is 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, Byron White, who was pro-life, 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're 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'll use the 15 minutes.

A while back, this morning, former Senator Danforth testified. And he made a very good point, I thought, and I'd just like to expand on it briefly, that as a lawyer -- we're talking now about this so- called case before the state of Missouri on the Kansas City case. His point was that, as a lawyer, you have an ethical obligation to vigorously defend your client. That's what you're obligated to do. Every day in America, we defend the most reprehensible people, murderers, rapists, robbers, thugs, every day, as well we should. It's the basis of our entire Constitution. If we ever walked away from that, God help us.

And so I think 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're going to use that marker.

So I would hope that we would stay focused here, and say that even to imply, let alone say that somehow a lawyer, in this case the attorney general, who is defending his state, as he's obligated to do by law and by the ethics of his profession -- to somehow imply that that 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 -- the people on this very committee were supporting certain candidates for re-election to office in spite of that.

So we'll 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 don't know where that came from, but we have a letter from the National Sheriffs Association, the Missouri Association of Police Chiefs, the Missouri Sheriffs Association all stating their opposition to Judge White.

And I might -- I just want -- and then 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'm puzzled by all of this information that seems to be coming to light.

But let me just refer quickly to the letter from one of the victims, who is also a sheriff. And you know, the issue here -- and I'm 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's the way 54 United States senators saw it. That's 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" -- I'm not going to read it all, I'll enter it 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'm 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 Rourke (ph) 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's 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.

So I think I'm going to stop here, Senator Ashcroft. You've had enough questions, I'm 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 you be filibustered or not be confirmed.

A man of your qualifications and decency, it would be -- I just can't imagine that it would even be thought of in this body to do such a thing. If there's anybody that's more qualified, or ever has been more qualified, I don't know who that person is.

I understand that Senator Hatch -- is Senator Hatch here?

MESERVE: You have been listening to confirmation hearings for John Ashcroft. Senator Joseph Biden of Delaware had missed part of the hearings because he was chairing hearings of the nomination of Colin Powell to be the secretary of state, but he made up for lost time, coming into the hearings and grilling Ashcroft about his stance on issues of race.

Saying to -- Biden said to Ashcroft, I do not believe you are a racist, but I believe your ideology blinds you to an equal application of not just the law, but the facts. Ashcroft responded saying, I repudiate racist organizations and ideas. I will enforce the law, reject racism and I will reach out to all people.

We're going to take a break. When we come back, more of the confirmation hearings of John Ashcroft to be attorney general of the United States.


MESERVE: Former U.S. Senator John Ashcroft defending himself, his record and his ideology before the U.S. Judiciary Committee as it concerns his nomination to be attorney general. Let's listen.


ASHCROFT: ... I saw more people confirmed as minorities to those posts than any 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.

SEN. ARLEN SPECTER (R), PENNSYLVANIA: Senator Ashcroft, with only about two 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 that there was more than enough basis to do so.

Special counsel is the category now, as I've 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 standard from the old independent counsel statute -- could go to the 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?

ASHCROFT: I have lamented, as a member of this committee, the unwillingness of the attorney general to act in some cases. 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 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. I know that, as 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 and 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.

SPECTER: Well, let me explore it with you when my next round comes.

LEAHY: I've 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'd note that the senator from Washington state -- for the newest members of the committee -- is also in attendance, on behalf of the Senate, at the same funeral. Senator Cantwell, yesterday, did not get her formal opening statements. And if she wants to take that time in addition to her 15 minutes...

SEN. MARIA CANTWELL (D), WASHINGTON: Thank you, Mr. Chairman, I appreciate that, and I will defer my opening statement was submitted yesterday and go right to questions if I can.

Senator Ashcroft, you and I have not met before this morning. I've not had the opportunity, the same as my colleagues, in working with you in the past, so I looked 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 could get through a couple of these key issues. Otherwise, I'll come back to you. But, first I'd 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, the 700 employees, you could say, is the largest environmental law firm in the country.

The division is charged with several tasks, obviously relating to protecting the environment. The division ensures environmental laws on the books -- whether that's the Clean Air Act or Clean Water Act, 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 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 are some of which you may have disagreed with. And obviously we've covered this, but I -- it's a very important issue that I'd like to cover.

And that is, how do you proceed given that clearly the Environmental and Natural Resources Division exercises 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 clean-up is done and completed?

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 a state attorney 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 threaten 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'll 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, and sowing the right kind of grasses and weaving 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'm 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.

CANTWELL: I do have some concerns about your environmental record, but I'll leave that for a side and get to a specific question that I think may be very timely, and that is the Department of Agriculture's recently issued 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 courts. As attorney general, will you aggressively defend and uphold this rule, which was implemented in accordance with the Administrative Procedures Act? If I'm not mistaken, this is exactly the type of case that the Environmental Defense Section of the Environmental and Natural Resources Section of DOJ is charged with defending.

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.

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. ASHCROFT: I'll be happy to work to provide you with additional information on that.

CANTWELL: Thank you.

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. For example, you were a supporter of the 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've 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?

ASHCROFT: I think individuals who want to plan their families have every right to do so.

CANTWELL: In the use of contraception?

ASHCROFT: I think individuals who want to use contraceptives have every right to do so.

CANTWELL: So in regards...

ASHCROFT: I think that right is guaranteed by the Constitution of the United States.

CANTWELL: So about the laws that create legal rights to contraceptive coverage, for example, the EEOC recently issued a decision stating that employers who fail to include contraceptive coverage in employee health benefit plans, engage in sexual discrimination in 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 the challenges to this law or initiate actions against employers who fail to provide such coverage?

ASHCROFT: I have not examined the law on the requirement that a private employer provide coverage in this respect. And I'm, at this time, not prepared to comment or to provide advice about the course of action I would take there.

CANTWELL: And is that something that you wouldn't comment further on before your vote on nomination, or just this afternoon?

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, and maybe I misconstrued your question.

CANTWELL: Yes, would you defend challenges to the law or initiate action against employers who did discriminate against...

ASHCROFT: I would defend challenges to the law and seek to uphold the law.

CANTWELL: Including actions against employers who failed to provide such coverage?

ASHCROFT: I'm not sure I have the 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 is, by statute, focused in another agency.

CANTWELL: Thank you.

I'd like to cover one last issue, if I could, and it follows a 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'm familiar with, Margaret McCuen (ph), a federal judge from the 9th Circuit Court of Appeals. And I won't go through her various accomplishments, but she was supported by both Senator Gorton and Senator Murray, and in the end, after a two-year delay, she was confirmed by a 80-to-11 vote on the floor of the U.S. Senate. So in that particular case, your opposition to Margaret McCuen -- I'm just trying to understand, again, the Ashcroft standard in looking at the decision in opposition to that appointment.

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.

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 of '97, in which you characterized Margaret McCuen as "taking marching orders from the ACLU" and characterized her efforts as "sinister," in, I thought, a very harsh tone against a nominee that you and 10 other senators voted against.

And so if you could get me information about your opposition to her. And I'd be happy to provide the copy of these remarks that were a part of the Heritage Lectures.

But in trying to understand the framework of us moving forward on your nomination, I'm trying to understand the framework of which you applied to other appointees and reflection upon that as you put your own team together in the various divisions underneath you.

ASHCROFT: Thank you, Senator.

Let me just add this, that the standard for judicial nominations and lifetime positions are integrity, a commitment to rule of law, no issue litmus tests.

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 for it.

CANTWELL: Well, I think my question relates to the fact that she was held up for two years, and your comments on record have been harsh, so I'd like to know your criteria and standards. So, I appreciate you getting back to me on that.

ASHCROFT: Thank you.

CANTWELL: Thank you, Mr. Chairman.

LEAHY: Thank you.

The senator from Kansas will be recognized next.

We've been having -- for those who watch this on television, they'll see the little red and green lights that have been going on. Somehow that seems to have broken down the last few minutes. I'm having the staff notify me when there is two minutes left in the senator's time, and I will just make that announcement as unobtrusively as possible, both for Senator Brownback's case but also for Senator Ashcroft's case.

Senator Brownback?

SEN. SAM BROWNBACK (R), KANSAS: Thank you very much, Mr. Chairman.

And thank you, John, for hanging in here. It's, I'm sure, been a long day and you'd rather have been at the dentist all day than here through the difficulties.

I note some...

MESERVE: You've been listening to the Senate Judiciary Committee. We heard just moments ago from one the Senate's newest members, Maria Cantwell. She's a Democrat from the state of Washington. She quizzed Ashcroft on a number of topics, specifically the environment, his standards for judicial appointments and also family planning. That's the first time that's come up today, at least, and Ashcroft responded that woman who seek contraceptives have every right to do so.

This is just the latest installment in what has been a lively hearing. It will continue into the evening and into tomorrow. I'm Jeanne Meserve. I'll be leaving you, but after the break, Kyra Phillips will pick up our coverage from Atlanta. Stay tuned. (COMMERCIAL BREAK)


KYRA PHILLIPS, CNN ANCHOR: And Bob Franken has been following the hearings all morning and he joins us now with his assessments.

Hi, Bob.

BOB FRANKEN, CNN CORRESPONDENT: Hello, Kyra. And the main thing that is happening today is the discussion about Ronnie White. Now, Ronnie White is going to be the star witness probably tomorrow, probably tomorrow morning. He is the first African-American member of the Missouri state Supreme Court. He was also a nominee of President Clinton's to become a federal judge. He was defeated almost exclusively because of the opposition from Senator John Ashcroft. He was able to convince all of his fellow Republicans to vote against Judge White.

Civil rights groups say that Ashcroft, in the context of his re- election battle was more than willing to play racial politics. Ashcroft insists that his opposition was based on what he believes to be Judge White's judicial philosophy. Specifically, that he was pro- defendant. There was a specific case that was mentioned that had to do with the shooting rampage of 1991, in which the man shot four law enforcement officers -- three law enforcement officers and the wife of a sheriff in Missouri.

And as a matter of fact, that sheriff is still a sheriff. And he came out in opposition to Ronnie White. That, says Ashcroft, is the reason that he voted against the judge Ronnie White. Now White, by the way -- the issue was, is that as a Supreme Court justice in Missouri, he had written a dissent to the death penalty for the man, James Johnson, who had gone on that rampage, saying that, in fact, he had not effective legal counsel; so we had an argument throughout day with senators who were talking about whether or not that was adequate reason to oppose the death penalty.

Judge White will be making his first public comments tomorrow on this matter and is expected by many to be very, very, very critical of John Ashcroft. Ashcroft, of course, have many of his defenders among the Republicans who have already made the case that all he was doing was being conscientious about his judicial philosophy against activism -- Kyra.

PHILLIPS: All right, Bob Franken, thank you so much. We're going to go back to the hearing room now and listen in.


BROWNBACK: ... every business day.

LEAHY: Just to notify, the light is back on. And it is at three minutes.

BROWNBACK: Thank you. I would appreciate your comments about what we should do about meth labs and methamphetamines and its scourge in this country, John.

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, a part of the Justice Department, in dealing with the contamination that's 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've mentioned on several occasions the 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 it's not only fair but necessary for us to fight against the drug. But secondly, that we have the ability to clean up and help, especially the small -- in my area, a rural area, the sherrif's department doesn't have toxic clean-up capacity. So we need cooperation there.

But methamphetamine has been disastrous to the lives of individuals. And we need to explore treatment and be emphasizing education. That's why in the last measure, which was signed into law just less than six months ago, we had a component for assisting law enforcement, assisting in law enforcement training, assisting in clean-up, 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 recited earlier, at the very highest level so that we can work together.

Methamphetamines are just one of a 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're 100 percent of our future.

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're willing to protect those who are the weakest. And thank you for doing that.

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'll come back at the end of that time.


PHILLIPS: Senator Patrick Leahy calling for a break of the confirmation hearing with regard to the position of attorney general and John Ashcroft. We will come back to the hearing once it resumes. We will go back to our Bob Franken, who joins once again. He's been following the hearing and, in addition to many other hearings going on in Capitol Hill.

Bob, are you with us?

FRANKEN: I am indeed. We talk about those other hearings for a minute, and say, they went smoothly. Now, moving onto the John Ashcroft hearing.

PHILLIPS: Quite a difference.

FRANKEN: Quite a difference.


FRANKEN: Yes. The others are love feasts and this is a somewhat different meal. As the Democrats, in particular on the panel, many of them are trying to chip away of John Ashcroft, trying to characterize him as an extremist. Right now, John Ashcroft could probably be described as Muhammad Ali in his hey-day; and bobbing and weaving and has not been hit very much at all, his supporters are becoming more and more confident; they believe that by keeping the calm demeanor and handling the most toughest charges that be are coming from some of the Democrats; he's actually scoring points, perhaps enhancing the possibilities that are being confirmed.

As we talked about a couple of minutes ago, and the central point of the hearing will probably come tomorrow when Judge Ronnie White, the African-American judge that Ashcroft fought successfully to oppose his confirmation as a federal judge; that will be the most tense moments of the hearing, but so far, Ashcroft seems to be doing quite well.

PHILLIPS: All right, Bob Franken, thank you very much. And we will continue to follow this and check in with Bob on Capitol Hill. Once again, we will bring the confirmation hearing back to you once it resumes.



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